Execution Copy
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of December 17, 1997, between GMAC Commercial Mortgage Corporation
as seller (the "Seller") and GMAC Commercial Mortgage Securities, Inc. as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Xxxxx'x
Investor's Services, Inc. and Duff & Xxxxxx Credit Rating Co. (together, the
"Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be registered under the Securities Act of 1933, as amended
(the "Securities Act"). The Trust Fund will be created and the Certificates will
be issued pursuant to a pooling and servicing agreement to be dated as of
December 1, 1997 (the "Pooling and Servicing Agreement"), among the Purchaser as
depositor, GMAC Commercial Mortgage Corporation as master servicer (in such
capacity, the "Master Servicer") and special servicer (in such capacity, the
"Special Servicer") and State Street Bank and Trust Company 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.
The Purchaser intends to sell certain of the Certificates to Xxxxxxx, Sachs
& Co., Deutsche Xxxxxx Xxxxxxxx Inc. and Residential Funding Securities Corp.
(together, the "Underwriters") pursuant to an underwriting agreement dated the
date hereof (the "Underwriting Agreement"). The Purchaser intends to sell the
remaining Certificates (the "Non-Registered Certificates") to Xxxxxxx, Sachs &
Co. and Deutsche Xxxxxx Xxxxxxxx Inc. (the "Initial Purchasers"), pursuant to a
certificate purchase agreement dated the date hereof (the "Certificate Purchase
Agreement").
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
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SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on December 17, 1997 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on December 17, 1997 (the "Cut-off
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
$548,694,136, subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loans shall be determined and paid to the Seller in accordance with
the terms of an allocation agreement dated the date hereof (the "Allocation
Agreement"), to which the Seller and Purchaser, among others, are parties.
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 in accordance with the Allocation
Agreement), 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, together with all of the Seller's right, title and interest in and
to the proceeds of any related title, hazard, or other insurance policies and
any escrow, reserve or other comparable accounts related to the Mortgage Loans.
The Purchaser shall be entitled to (and, to the extent received by or on behalf
of the Seller, the Seller shall deliver or cause to be delivered to or at the
direction of the Purchaser) all scheduled payments of principal and interest due
on the Mortgage Loans after the Cut-off Date, and all other recoveries of
principal and interest collected thereon after the Cut-off Date. All scheduled
payments of principal and interest due thereon on or before the Cut-off Date and
collected after the 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
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cause to be delivered, as to any Mortgage Loan, the original or a copy of any of
the documents and/or instruments referred to in clauses (ii), (iv), (viii),
(xi)(A) and (xii) of Exhibit B, with evidence of recording thereon, solely
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, or because
such original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 2(b) shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Trustee, and
either the original of such missing document or instrument, or a copy thereof,
with evidence of recording or filing, as the case may be, thereon, is delivered
to or at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee) within 180 days of the
Closing Date (or within such longer period after the Closing Date as the
Purchaser (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Purchaser (or such
subsequent owner) with evidence of such recording or filing, as the case may be,
or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no less often than quarterly, in
good faith attempting to obtain from the appropriate county recorder's or filing
office such original or copy). If the Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred to in clause (ix) of Exhibit B solely
because such policy has not yet been issued, the delivery requirements of this
Section 2(b) shall be deemed to be satisfied as to such missing item, and such
missing item shall be deemed to have been included in the related Mortgage File,
provided that the Seller has delivered to the Trustee 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 in accordance
with the Allocation Agreement) 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.
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(c) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with 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; 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 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
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holders of the Certificates), each of the representations and warranties set
forth in Exhibit C, with such changes or modifications as may be permitted or
required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing and
in good standing under the laws of the State of California, and is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance and compliance with the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law, and (C) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
(v) The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in
the Seller's good faith and reasonable judgment, is likely to affect
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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
any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information set
forth on pages A-6 through A-8, 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
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aggregation of the information on the Loan Detail, the information set
forth in the Prospectus Supplement and the Memorandum (also as defined in
Section 9) under the headings "Summary of the Prospectus Supplement--The
Mortgage Asset Pool", "Risk Factors--The Mortgage Loans" and "Description
of the Mortgage Asset Pool", set forth on Annex A to the Prospectus
Supplement and (to the extent it contains information consistent with that
on such Annex A) set forth on the Diskette, does not contain any untrue
statement of a material fact or (in the case of the Memorandum, when read
together with the other information specified therein as being available
for review by investors) omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(x) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws),
for the execution, delivery and performance of or compliance by the Seller
with this Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) the filing or recording of financing
statements, instruments of assignment and other similar documents necessary
in connection with Seller's sale of the Mortgage Loans to the Purchaser,
(2) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (3)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
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.
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(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Purchaser's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Purchaser to
perform its obligations under this Agreement or the financial condition of
the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Seller, the Underwriters, the Initial
Purchasers and their 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,
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for the execution, delivery and performance of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as have
been obtained or made and (2) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not have
a material adverse effect on the performance by the Purchaser under this
Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
(a) Within 90 days of the earlier of discovery or receipt of notice by the
Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement) 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, 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) 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.
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)
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thereof at the applicable Purchase Price by payment of such Purchase Price by
wire transfer of immediately available funds to the account designated by such
owner(s).
In addition, if, as of the Closing Date, any Mortgage Loan is secured by a
Mortgage that does not constitute a valid first lien upon the related Mortgaged
Property, including all buildings located thereon and all fixtures attached
thereto, or if a Mortgage is subject to something other than (A) the lien of
current real property taxes and assessments not yet due and payable, (B)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, (C) exceptions and exclusions specifically referred to
in the lender's title insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan and (D) those
exceptions set forth on Schedule C-1 to Exhibit C hereto (the exceptions set
forth in the foregoing clauses (A), (B), (C) and (D) collectively, "Permitted
Encumbrances"), or if the insurer that issued the Title Policy referred to in
clause (vi) of Exhibit C hereto in respect of any Mortgage Loan was not
qualified to do business in the state in which the related Mortgaged Property is
located, and in either case such failure materially and adversely affects the
interests of holder of Certificates, (any such failure that materially and
adversely affects the interests of holders of Certificates, also a "Material
Breach"), the Seller shall be required, at its option, to either (i) cure such
Material Breach in all material respects or (ii) repurchase the affected
Mortgage Loan, in each case, within the applicable Permitted Cure Period. If any
such Material 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 foregoing, and subject to the following paragraph,
the "Permitted Cure Period" applicable to any Defect or Material 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 Defect or Material Breach, as the case may be; provided that if such Defect
or Material Breach, as the case may be, cannot be corrected or cured in all
material respects within such 90-day period, but is reasonably likely that such
Defect or Material Breach, as the case may be, 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 Material Documents Defect or Material Breach, as the
case may be, and the Seller is diligently attempting to effect such correction
or cure, then the applicable Permitted Cure Period shall, with the consent of
the Purchaser or its assignee (which consent shall not be unreasonably
withheld), be extended for an additional 90 days.
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(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 6, the then owner(s) thereof shall tender or
cause to be tendered promptly to the Seller, upon delivery of a receipt executed
by the Seller, the related Mortgage File and Servicing File, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Purchaser or the Trustee shall be endorsed or assigned, as the case may be,
to the Seller in the same manner. The form and sufficiency of all such
instruments and certificates shall be the responsibility of the Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the sole
remedies available to the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates) respecting
any Defect in a Mortgage File or any breach of any representation or warranty
made pursuant to Section 4(a) and set forth in Exhibit C, or in connection with
the circumstances described in Section 6(b). If the Seller defaults on its
obligations to repurchase any Mortgage Loan in accordance with Section 6(a) or
6(b) or disputes its obligation to repurchase any Mortgage Loan in accordance
with either such subsection, the Purchaser or its successors and assigns may
take such action as is appropriate to enforce such payment or performance,
including, without limitation, the institution and prosecution of appropriate
proceedings. The Seller shall reimburse the Purchaser for all necessary and
reasonable costs and expenses incurred in connection with such enforcement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller specified
herein shall be true and correct as of the Closing Date, and the Aggregate
Cut-off Date Balance shall be within the range permitted by Section 1 of
this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and acceptable to the Purchaser, shall be
duly executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee, the
Purchaser or the Purchaser's designee, as the case may be, all documents
and funds required to be so delivered pursuant to Section 2;
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(iv) The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to Section 3
shall be satisfactory to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) A certificate of good standing regarding the Seller from the Secretary
of State for the State of California, dated not earlier than 30 days prior to
the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser and each Underwriter
may rely;
(e) Written opinions of counsel for the Seller, substantially in the form
of Exhibits D-3A and D-3B hereto and subject to such reasonable assumptions and
qualifications as
E-397
may be requested by counsel for the Seller and acceptable to counsel for the
Purchaser, dated the Closing Date and addressed to the Purchaser and each
Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested by
the Rating Agencies in connection with the issuance of the Certificates, each of
which shall include the Purchaser and each Underwriter as an addressee; and
(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 (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 Prospectus
Supplement - The Mortgage Asset Pool", "Risk Factors - The Mortgage Loans"
and/or "Description of the Mortgage Asset Pool" or contained on Annex A to the
Prospectus Supplement (exclusive of the Loan Detail), and such information does
not represent a restatement or aggregation of information contained in the Loan
Detail; or (iii) such untrue statement, alleged untrue statement, omission or
alleged omission arises out of or is based upon a breach of the representations
and warranties of the Seller set forth
E-398
in or made pursuant to Section 4; provided, that the indemnification provided by
this Section 9 shall not apply to the extent that such untrue statement of a
material fact or omission of a material fact necessary to make the statements
made, in light of the circumstances in which they were made, not misleading, was
made as a result of an error in the manipulation of, or calculations based upon,
the Loan Detail. This indemnity agreement will be in addition to any liability
which the Seller may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-37717 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 December 17,
1997, as supplemented by the prospectus supplement dated December 17, 1997 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated December 17, 1997, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx
& Co. Incorporated, and Xxxxxx Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Xxxxxx
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx Letters, the "No-Action Letters").
(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
E-399
indemnified party of counsel, which approval will not be unreasonably withheld,
the indemnifying party will not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Purchaser and the indemnifying party,
representing all the indemnified parties under Section 9(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 9, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
E-400
(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 in accordance with the Allocation Agreement.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at 000 Xxxxxxx
Xxxx, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured
Finance Manager, facsimile no. (000) 000-0000, with a copy to the General
Counsel, GMAC Commercial Mortgage Corporation, or such other address or
facsimile number as may hereafter be furnished to the Seller in writing by the
Purchaser; and if to the Seller, addressed to GMAC Commercial Mortgage
Corporation, at 000 Xxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxxxx
00000-0000, Attention: Structured Finance Manager, facsimile no. (000) 000-0000,
with a copy to GMAC Commercial Mortgage Corporation, or to such other address or
facsimile number as the Seller may designate in writing to the Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it was a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
E-401
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder.
E-402
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.
E-403
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------
Title: Senior Vice President
-----------------------------------
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
E-404
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date and whether
such Mortgage Loan is an ARM Loan or a Fixed-Rate Loan;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity, (B) with respect to
each ARD Loan, the Anticipated Repayment Date and (C) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of an ARM Loan, the (A) Index, (B) Gross Margin, (C)
first Mortgage Rate adjustment date following the Cut-off Date and
the frequency of Mortgage Rate adjustments, and (D) maximum and
minimum lifetime Mortgage Rate, if any;
(x) whether such Mortgage Loan is an ARD Loan or a Defeasance Loan;
and
(xi) the Master Servicing Fee Rate.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
E-405
====================================================================================================================================
Seller Loan Number Property Name Property Address
====================================================================================================================================
GMAC GMAC4010 Oxford House Apartments 6451 - 0000 Xxxxxx Xxxxxx
GMAC GMAC4020 Colonial Park Apartments 220 - 260 and 000 XX 00xx Xxxxxx
GMAC GMAC4030 Victorian Village Apartments 00000 Xxxxxxxxxxx Xxxxx
XXXX XXXX0000 Sorrento Mesa Crossroads 00000 Xxxxxxx Xxxxxxx Xxxxxxxxx
GMAC GMAC4050 Xxxxxx House Apartments 0000 Xxxxxxxxxxxx Xxxxxx Xxxx
GMAC GMAC4060 Bank Street Court Apartments 24 - 00 Xxxx Xxxxxx
GMAC GMAC4070 Washington Street Retail 449 - 000 Xxxxxxxxxx Xxxxxx
GMAC GMAC4080 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
XXXX XXXX0000 Broadway Mesa 506 - 000 Xxxx Xxxxxxxx Xxxx
XXXX XXXX0000 000 Xxxxx Xxxxxx 230 Grand Street
1900, 1920-1940, and 1921-1941 Xxxxxx
GMAC GMAC4110 Beyerwood Apartments Place, and 0000-0000 Xxxxxx Xxxxxx
XXXX XXXX0000 Sedona Apartments 0000 Xxxxx Xxxxxx Xxxx
GMAC GMAC4130 Patuxent Motor Inn 00000 Xxxxx Xxxxx Xxxx
GMAC GMAC4140 Sheraton Four Points 000 Xxxxxxxxxxx Xxx
GMAC GMAC4150 Triangle Village Auto Mall 2105 North Carolina Hwy 54
GMAC GMAC4170 Central Park Apartments 000 Xxxx Xxxxxxxxx Xxxxx
XXXX XXXX0000 Xxxxxx Xxxx Xxxxxxxxxx 000 Xxxxxx X
GMAC GMAC4200 0000 Xxxxx Xxxxx Xxxxxx 0000 Xxxxx Xxxxx Xxxxxx
GMAC GMAC4210 Xxxxx Xxxxxx Square 000 Xxxxx Xxxxxxxxx Xxxxxxxxx
GMAC GMAC4220 Sunrise at the Pinnacle - Phase I Eastern side of Xxxxxxxxxxx Xxxx
XXXX XXXX0000 Xxxxx Center 000 Xxxxx Xxxx
XXXX XXXX0000 Airport Plaza 108 - 000 Xxxxx XxXxxx Xxxxxxx
GMAC GMAC4260 Yeshiva Apartment Portfolio Various Addresses
GMAC GMAC4260A Yeshiva Apartments 815 - 000 Xxxxxx Xxxxxx
GMAC GMAC4260B NP Apartment Buildings Various Addresses
GMAC GMAC4270 Presidential Golfview Condominiums 0000 Xxxxx Xxxxxxxx Xxxxxx
GMAC GMAC4280 Port Atwater Parking 000 Xxxxxxxx Xxxxxx
GMAC GMAC4290 Xxxxxxx Valley Shopping Center 0000 Xxxxxxx Xxxxxx Xxxx
GMAC GMAC4300 University Club Apartments 12024 Royal Xxxxx Xxxx
GMAC GMAC4310 Green Mountain Village Retail Center 0000 Xxxxx Xxxx Xxxxx Xxxxxxxxx
28016-28026 Oakland Oaks Court and
GMAC GMAC4320 Grand Oaks Commerce Center 28003-28023 Center Oaks Court
GMAC GMAC4330 Emerald Xxxxx Apartments 0 Xxxxxxxx Xxxxxx
XXXX XXXX0000 Santa Fe Village Apartments 4554 - 0000 Xxxxxxxx Xxxxxx
GMAC GMAC4350 Cambridge Manor Apartments 000 Xxxxxxxxxx Xxxx
XXXX XXXX0000 Xxxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxxx Xxxxxx
GMAC GMAC4370 Madison Manor Apartments 0000 Xxxxxxxxxx Xxxx
GMAC GMAC4380 Northgate Plaza Shopping Center 0000 Xxxxxxxx Xxxx
GMAC GMAC4390 Hillcroft Xxxxx Xxxxxx Xxxxxxxx 0000 Xxxxxxxxx Xxxxxx
XXXX XXXX0000 Trolley Park Apartments 500 - 000 Xxxx Xxxxxx
449 - 000 Xxxx 00xx Xxxxxx and 000 Xxxx
XXXX XXXX0000 00xx Xxxxxx Mini Storage 00xx Xxxxxx
XXXX XXXX0000 Meridian Towers 0000 Xxx Xxxxxxxxx Xxxxxx
GMAC GMAC4430 Brixton Square Apartments 0000 Xxxxx Xxxxxxxxxx Xxxxxx
====================================================================================================================================
Seller Loan Number City State Zip Code Current Rate Interest Type
====================================================================================================================================
GMAC GMAC4010 Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 7.94000 Fixed
GMAC GMAC4020 Xxxxxxx Xxxx Xxxxxxx 00000 8.02000 Fixed
GMAC GMAC4030 Xx. Xxxxx Xxxxxxxx 00000 8.12500 Fixed
GMAC GMAC4040 Xxx Xxxxx Xxxxxxxxxx 00000 8.12500 Fixed
GMAC GMAC4050 Xxxxxx Xxxxxxx Xxxx 00000 8.25000 Fixed
GMAC GMAC4060 Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 7.89000 Fixed
GMAC GMAC4070 Xxxxxx Xxxxxxxxxxxxx 0000 8.07000 Fixed
GMAC GMAC4080 Xxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxxxx 00000 8.45000 Fixed
GMAC GMAC4090 Xxxx Xxxxxxx 00000 8.54000 Fixed
GMAC GMAC4100 Xxx Xxxx Xxx Xxxx 00000 8.75000 Fixed
GMAC GMAC4110 Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 7.99000 Fixed
GMAC GMAC4120 Xxxxxx Xxxxxxxx 00000 7.96000 Fixed
GMAC GMAC4130 Xxxxxxxxxx Xxxxxxxx 00000 8.65000 Fixed
GMAC GMAC4140 Xxxxxxxx Xxxxxxxx 00000 8.65000 Fixed
GMAC GMAC4150 Xxxxxx Xxxxx Xxxxxxxx 00000 8.49000 Fixed
GMAC GMAC4170 Xxxxx Xxxxx 00000 7.45000 Fixed
GMAC GMAC4180 Xxxxx Xxxxx 00000 7.45000 Fixed
GMAC GMAC4200 Xxxxxxxx Xxx Xxxxxx 0000 8.08000 Fixed
GMAC GMAC4210 Xx Xxxxxxx Xxxxxxxxxx 00000 7.91000 Fixed
GMAC XXXX0000 Xxxxxxxx Xxxxxxxx Xxx Xxxxxx 0000 7.84000 Fixed
GMAC XXXX0000 Xxxxxxxx Xxxxxxxx Xxx Xxxxxx 0000 7.87500 Fixed
GMAC GMAC4250 Xxx Xxxxxx Xxxxxxxx 00000 8.39000 Fixed
GMAC GMAC4260 Xxxxxxxx Xxx Xxxxxx 00000 8.09000 Fixed
GMAC GMAC4260A Xxxxxxxx Xxx Xxxxxx 0000 0.00000
GMAC GMAC4260B Xxxxxxxx Xxx Xxxxxx 0000 0.00000
GMAC GMAC4270 Xxxx Xxxx Xxxxx Xxxxxxx 00000 8.12000 Fixed
GMAC GMAC4280 Xxxxxxx Xxxxxxxx 00000 7.75000 Fixed
GMAC GMAC4290 Xxxxxxx Xxxxxxxxxx 00000 8.85000 Fixed
GMAC GMAC4300 Xxxxxxx Xxxxxxx 00000 7.62500 Fixed
GMAC GMAC4310 Xxxxxxxx Xxxxxxxx 00000 8.05000 Fixed
GMAC GMAC4320 Xxxxx Xxxxxxxx 00000 7.26000 Fixed
GMAC GMAC4330 Xxxxxx Xxxx Xxxxxxxx 00000 8.37500 Fixed
GMAC GMAC4340 Xx Xxxx Xxxxx 00000 9.07000 Fixed
GMAC GMAC4350 Xxxxxxxx Xxx Xxxx 00000 8.12500 Fixed
GMAC GMAC4360 Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 8.62500 Adjustable
GMAC GMAC4370 Xxxxxxxxxx Xxxxxxxxxxxx 00000 8.98000 Fixed
GMAC GMAC4380 Xxxxxxx Xxxxxxxx 00000 9.37500 Fixed
GMAC GMAC4390 Xxxxxxx Xxxxx 00000 8.93000 Fixed
GMAC GMAC4400 Xxxx Xxxxx Xxxxxxxxxxx 0000 8.00000 Fixed
GMAC GMAC4410 Xxx Xxxx Xxx Xxxx 00000 8.68750 Adjustable
GMAC GMAC4420 Xxxxxxxxxx Xxxxxxxx xx Xxxxxxxx 00000 8.10000 Adjustable
GMAC GMAC4430 Xxxxx Xxxxxxxx 00000 7.75000 Fixed
====================================================================================================================================
Seller Loan Number Original Balance Cut-off Date Balance Remaining Term Maturity Date Due Date
====================================================================================================================================
GMAC GMAC4010 3,675,000.00 3,659,236.08 116 8/1/07 01
GMAC GMAC4020 3,000,000.00 2,991,900.13 176 8/1/12 01
GMAC GMAC4030 7,200,000.00 7,185,774.72 117 9/1/07 01
GMAC GMAC4040 2,850,000.00 2,844,369.16 117 9/1/07 01
GMAC GMAC4050 8,500,000.00 8,483,627.47 117 9/1/07 01
GMAC GMAC4060 2,560,000.00 2,554,695.96 81 9/1/04 01
GMAC GMAC4070 2,750,000.00 2,744,505.83 117 9/1/07 01
GMAC GMAC4080 1,350,000.00 1,347,503.66 81 9/1/04 01
GMAC GMAC4090 4,100,000.00 4,088,075.84 81 9/1/04 01
GMAC GMAC4100 3,000,000.00 2,952,486.13 117 9/1/07 01
GMAC GMAC4110 2,500,000.00 2,494,923.78 117 9/1/07 01
GMAC GMAC4120 7,000,000.00 6,985,700.18 117 9/1/07 01
GMAC GMAC4130 3,900,000.00 3,888,860.41 117 9/1/07 01
GMAC GMAC4140 4,620,000.00 4,606,803.88 117 9/1/07 01
GMAC GMAC4150 3,075,000.00 3,069,360.26 117 9/1/07 01
GMAC GMAC4170 4,925,000.00 4,925,000.00 118 10/1/07 01
GMAC GMAC4180 3,630,000.00 3,630,000.00 118 10/1/07 01
GMAC GMAC4200 1,300,000.00 1,295,924.88 117 9/1/07 01
GMAC GMAC4210 7,750,000.00 7,739,373.38 118 10/1/07 01
GMAC GMAC4220 4,500,000.00 4,493,741.88 118 10/1/07 01
GMAC GMAC4240 24,000,000.00 23,966,858.31 118 10/1/07 01
GMAC GMAC4250 7,700,000.00 7,690,424.09 82 10/1/04 01
GMAC GMAC4260 6,225,000.00 6,216,770.08 119 10/31/07 01
GMAC GMAC4260A - - 0 00
GMAC GMAC4260B - - 0 00
GMAC GMAC4270 5,600,000.00 5,592,641.37 118 10/1/07 01
GMAC GMAC4280 8,000,000.00 7,988,670.91 82 10/1/04 01
GMAC GMAC4290 10,125,000.00 10,029,274.24 110 2/1/07 01
GMAC GMAC4300 17,000,000.00 16,975,313.60 118 10/1/07 01
GMAC GMAC4310 1,300,000.00 1,298,267.29 118 10/1/07 01
GMAC GMAC4320 1,500,000.00 1,490,719.21 118 10/1/07 01
GMAC GMAC4330 3,525,000.00 3,510,856.09 113 5/1/07 01
GMAC GMAC4340 2,250,000.00 2,238,368.38 113 5/1/07 01
GMAC GMAC4350 2,000,000.00 1,948,902.41 97 1/1/06 01
GMAC GMAC4360 525,000.00 504,807.76 263 11/1/19 01
GMAC GMAC4370 2,040,000.00 2,009,090.99 104 8/1/06 01
GMAC GMAC4380 7,000,000.00 6,731,399.50 75 3/1/04 01
GMAC GMAC4390 1,150,000.00 1,142,722.00 73 1/1/04 01
GMAC GMAC4400 3,970,000.00 3,961,623.30 118 10/1/07 01
GMAC GMAC4410 6,500,000.00 6,486,923.41 75 3/1/04 01
GMAC GMAC4420 4,200,000.00 4,194,424.32 81 9/1/04 01
GMAC GMAC4430 1,140,000.00 1,138,385.60 118 10/1/07 01
E-406
====================================================================================================================================
Seller Loan Number Monthly Payment Index Margin Next Rate Adjustment Rate Adjustment Frequency
====================================================================================================================================
GMAC GMAC4010 28,218.33 Not Applicable - Not Applicable
GMAC GMAC4020 22,054.78 Not Applicable - Not Applicable
GMAC GMAC4030 53,459.80 Not Applicable - Not Applicable
GMAC GMAC4040 21,161.17 Not Applicable - Not Applicable
GMAC GMAC4050 63,857.66 Not Applicable - Not Applicable
GMAC GMAC4060 18,588.44 Not Applicable - Not Applicable
GMAC GMAC4070 20,312.88 Not Applicable - Not Applicable
GMAC GMAC4080 10,332.53 Not Applicable - Not Applicable
GMAC GMAC4090 33,124.90 Not Applicable - Not Applicable
GMAC GMAC4100 37,598.03 Not Applicable - Not Applicable
GMAC GMAC4110 18,326.69 Not Applicable - Not Applicable
GMAC GMAC4120 51,168.46 Not Applicable - Not Applicable
GMAC GMAC4130 31,799.06 Not Applicable - Not Applicable
GMAC GMAC4140 37,669.65 Not Applicable - Not Applicable
GMAC GMAC4150 23,622.30 Not Applicable - Not Applicable
GMAC GMAC4170 34,267.75 Not Applicable - Not Applicable
GMAC GMAC4180 25,257.25 Not Applicable - Not Applicable
GMAC GMAC4200 10,102.60 Not Applicable - Not Applicable
GMAC GMAC4210 56,381.27 Not Applicable - Not Applicable
GMAC GMAC4220 32,518.87 Not Applicable - Not Applicable
GMAC GMAC4240 174,016.65 Not Applicable - Not Applicable
GMAC GMAC4250 58,607.11 Not Applicable - Not Applicable
GMAC GMAC4260 46,068.01 Not Applicable - Not Applicable
GMAC GMAC4260A - Not Applicable - Not Applicable
GMAC GMAC4260B - Not Applicable - Not Applicable
GMAC GMAC4270 41,560.24 Not Applicable - Not Applicable
GMAC GMAC4280 57,312.98 Not Applicable - Not Applicable
GMAC GMAC4290 83,931.04 Not Applicable - Not Applicable
GMAC GMAC4300 120,324.94 Not Applicable - Not Applicable
GMAC GMAC4310 9,584.29 Not Applicable - Not Applicable
GMAC GMAC4320 13,701.40 Not Applicable - Not Applicable
GMAC GMAC4330 26,792.55 Not Applicable - Not Applicable
GMAC GMAC4340 18,630.61 Not Applicable - Not Applicable
GMAC GMAC4350 15,602.30 Not Applicable - Not Applicable
GMAC GMAC4360 4,278.91 One Year Treasury 3.000 Annually
GMAC GMAC4370 17,091.68 Not Applicable - Not Applicable
GMAC GMAC4380 70,513.07 Not Applicable - Not Applicable
GMAC GMAC4390 9,195.30 Not Applicable - Not Applicable
GMAC GMAC4400 30,641.10 Not Applicable - Not Applicable
GMAC GMAC4410 53,440.62 One Month LIBOR 3.000 Monthly
GMAC GMAC4420 31,455.88 One Month LIBOR 2.100 Monthly
GMAC GMAC4430 8,167.10 Not Applicable - Not Applicable
=====================================================================================================================
Seller Loan Number Rate Cap Rate Floor ARD Loan Defeasance Loan Master Servicing Fee
=====================================================================================================================
GMAC GMAC4010 - - No NAP 0.0200
GMAC GMAC4020 - - No NAP 0.0200
GMAC GMAC4030 - - No NAP 0.0200
GMAC GMAC4040 - - No NAP 0.0200
GMAC GMAC4050 - - No NAP 0.0200
GMAC GMAC4060 - - No NAP 0.0200
GMAC GMAC4070 - - No NAP 0.0200
GMAC GMAC4080 - - No NAP 0.0200
GMAC GMAC4090 - - No NAP 0.0200
GMAC GMAC4100 - - No NAP 0.0200
GMAC GMAC4110 - - No NAP 0.0200
GMAC GMAC4120 - - No NAP 0.0200
GMAC GMAC4130 - - No NAP 0.0200
GMAC GMAC4140 - - No NAP 0.0200
GMAC GMAC4150 - - No NAP 0.0200
GMAC GMAC4170 - - No NAP 0.0200
GMAC GMAC4180 - - No NAP 0.0200
GMAC GMAC4200 - - No NAP 0.0200
GMAC GMAC4210 - - No NAP 0.0200
GMAC GMAC4220 - - No NAP 0.0200
GMAC GMAC4240 - - No NAP 0.0200
GMAC GMAC4250 - - No NAP 0.0200
GMAC GMAC4260 - - No NAP 0.0200
GMAC GMAC4260A - - No No 0.0200
GMAC GMAC4260B - - No No 0.0200
GMAC GMAC4270 - - No NAP 0.0200
GMAC GMAC4280 - - No NAP 0.0200
GMAC GMAC4290 - - No NAP 0.0200
GMAC GMAC4300 - - No NAP 0.0200
GMAC GMAC4310 - - No NAP 0.0200
GMAC GMAC4320 - - No NAP 0.0200
GMAC GMAC4330 - - No NAP 0.0200
GMAC GMAC4340 - - No NAP 0.0200
GMAC GMAC4350 - - No NAP 0.0200
GMAC GMAC4360 11.250 7.250 No NAP 0.0200
GMAC GMAC4370 - - No NAP 0.0200
GMAC GMAC4380 - - No NAP 0.0200
GMAC GMAC4390 - - No NAP 0.0200
GMAC GMAC4400 - - No NAP 0.0200
GMAC GMAC4410 11.438 5.688 No NAP 0.0200
GMAC GMAC4420 - - No NAP 0.0200
GMAC GMAC4430 - - No NAP 0.0200
E-407
====================================================================================================================================
Seller Loan Number Property Name Property Address
====================================================================================================================================
GMAC GMAC4440 Pacific Plaza 5900 - 0000 Xxxxxxx Xxxxxxxxx
GMAC GMAC4450 Pine View Apartments 0000 Xxxxx Xxxx Xxxxx Xxxx
XXXX XXXX0000 Longwood Apartments I 0000 Xxxxxxxxx Xxxx
GMAC GMAC4470 Heatherwood Apartments II 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
GMAC GMAC4480 Palms To Pines - Coast Savings 00-000 Xxxxxxx 000
XXXX XXXX0000 Palms to Pines - In Line Shops 72 - 608 and 72 - 624 El Paso
GMAC GMAC4500 Redwood Road Office 0000 Xxxxx Xxxxxxx Xxxx
GMAC GMAC4510 TRW Warehouse 2410 - 0000 Xxxxx Xx Xxxxxx
GMAC GMAC4515 TRW Warehouse 2410 - 0000 Xxxxx Xx Xxxxxx
GMAC GMAC4520 One Westside Plaza 00000 Xxxx Xxxxxxx Xxxxxxxxx
GMAC GMAC4530 Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxxx Drive
GMAC GMAC4540 Monterey Beach Hotel 0000 Xxxx Xxxxx Xxxxx
GMAC GMAC4550 Xxxxx Xxxxx Apartments 4009 - 0000 Xxxxxxx Xxxxxx
GMAC GMAC4560 Xxxxxxxxx Xxxxxxxx Xxxxxx 0000 Xxx Xxxxxx
GMAC GMAC4580 Viacon Building 00000 XX 0xx Xxxxxx
GMAC GMAC4590 Bunker Hill Towers Apartments 222 and 000 Xxxxx Xxxxxxxx Xxxxxx
GMAC GMAC4600 Tivoli Apartments (formerly Maple Hills Apartments) 0000 Xxxx Xxxxx Xxxx
GMAC GMAC4610 Montreux on the Plaza Apartments 0000 Xxxxxx Xxxxxx
5815, 5825, 5835, 5845 and 5855 Live
GMAC GMAC4620 Oakbrook Corporate Center Oak Parkway
GMAC GMAC4630 11211 Katy Freeway 00000 Xxxx Xxxxxxx
GMAC GMAC4640 0000 Xxxx Xxxx One 0000 Xxxx Xxxx One
GMAC GMAC4650 Federal Way Center 0000 Xxxxx 000xx Xxxxxx
GMAC GMAC4660 Caldor Distribution Center 0000 Xxxxxxxxxxx Xxxxxx
GMAC GMAC4670 Marketplace Shopping Center 0000 Xxxxxx Xxxxxx
GMAC GMAC4680 The Xxxxxxxx Apartments 17 - 00 Xxxx 00xx Xxxxxx
5944-5995 Pacific Ctr Blvd, 5940-5960
Mira Mesa Dist. Center and Pacific Mesa Ct, 10151-10211 Pacific
GMAC GMAC4690 Sorrento View Business Park Mesa Blvd.
GMAC GMAC4700 Sun Prairie Apartments 0000 Xxxxx Xxxxx
XXXX XXXX0000 Hauppauge Shopping Center 000 Xxxxxxxx Xxxxxxxx Xxxxxxx
XXXX XXXX0000 Deer Shore Shopping Center Deer Park Avenue and Bayshore Road
GMAC GMAC4730 Xxxx Building 4343 Xxx Xxxxxx Avenue
GMAC GMAC4740 Pamida Home Value Center Xxxx Xxxxxxx 00 at 0xx Xxxxxx
XXXX XXXX0000 Xxxx Xxx Self Storage 0000 Xxxx Xxxxx Xxxxxx
GMAC GMAC4760 Crystal Court Apartments I 0000 Xxxxxxx Xxxxx Xxxxx
GMAC GMAC4770 Crystal Court Apartments II 1969 Xxxxxxx Xxxxx Drive
GMAC GMAC4780 Longwood Apartments II 0000 Xxxxxxxxx Xxxx
GMAC GMAC4790 La Crosse Apartments 000 Xxxxxxxxxx Xxxxxxxxx
XXXX XXXX0000 Country Villa Nursing Center 000 Xxxxx Xxxxxxxx Xxxxxx
GMAC GMAC4810 Washoe Progressive Care Center 0000 Xxxxx Xxxxxxxxx
GMAC GMAC4820 Walnut Hills Convalescent Center 0000 Xxxxx Xxxx
XXXX XXXX0000 Quality Care of Waco 0000 Xxxxx Xxxxxx
GMAC GMAC4840 The Columbus Apartments 0000 Xxxxx Xxxxxxxx Xxxxxx
00 Xxxxx Xxxxx Xxxx, 4 Old Xxxxxx
Road, 3 - 22 Commerce Drive, 5 - 14
GMAC GMAC4850 Commerce Park Finance Drive
====================================================================================================================================
Seller Loan Number City State Zip Code Current Rate Interest Type
====================================================================================================================================
GMAC GMAC4440 Xxxxxxxxxx Xxxx Xxxxxxxxxx 00000 7.66000 Fixed
GMAC GMAC4450 Xxxxxxx Xxxxxxx 00000 7.75000 Fixed
GMAC GMAC4460 Xxxxx Xxxxxxx 00000 7.75000 Fixed
GMAC GMAC4470 Xxxxxxxxx Xxxxxxx 00000 7.75000 Fixed
GMAC GMAC4480 Xxxx Xxxxxx Xxxxxxxxxx 00000 7.87500 Fixed
GMAC GMAC4490 Xxxx Xxxxxx Xxxxxxxxxx 00000 8.12500 Fixed
GMAC GMAC4500 Xxxxxxxxxxxx Xxxx 00000 8.26000 Fixed
GMAC GMAC4510 Xxxxxxx Xxxxx Xxxxxxxxxx 00000 7.89000 Fixed
GMAC GMAC4515 Xxxxxxx Xxxxx Xxxxxxxxxx 00000 7.19000 Fixed
GMAC GMAC4520 Xxx Xxxxxxx Xxxxxxxxxx 00000 7.35000 Fixed
GMAC GMAC4530 Creve Couer Missouri 63132 7.65000 Fixed
GMAC GMAC4540 Xxxxxxxx Xxxxxxxxxx 00000 8.12500 Fixed
GMAC GMAC4550 Xxxxxxxxxx Xxxxxxxxxx 00000 7.62500 Fixed
GMAC GMAC4560 Xxxxxxx Xxxxx 00000 8.71875 Adjustable
GMAC GMAC4580 Xxxxx Xxxxxxx 00000 8.12500 Fixed
GMAC GMAC4590 Xxx Xxxxxxx Xxxxxxxxxx 00000 7.39000 Fixed
GMAC GMAC4600 Walled Xxxx Xxxxxxxx 00000 7.59000 Fixed
GMAC GMAC4610 Xxxxxx Xxxx Xxxxxxxx 00000 7.62500 Fixed
GMAC GMAC4620 Xxxxxxxx Xxxxxxx 00000 8.25000 Fixed
GMAC GMAC4630 Xxxxxxx Xxxxx 00000 7.90000 Fixed
GMAC GMAC4640 Xxxxx Xxxx Xxxxx 00000 7.90000 Fixed
GMAC GMAC4650 Xxxxxxx Xxx Xxxxxxxxxx 00000 8.15000 Fixed
GMAC GMAC4660 Xxxxxxxxx Xxxxxxxxxxxxx 0000 7.67000 Fixed
GMAC GMAC4670 Xxxxxxxxxxxxxx Xxxxxxxx 00000 7.59000 Fixed
GMAC GMAC4680 Xxx Xxxx Xxx Xxxx 00000 7.02000 Fixed
GMAC GMAC4690 Xxx Xxxxx Xxxxxxxxxx 00000 7.41000 Fixed
GMAC GMAC4700 Xxxx Xxx Xxxxxx Xxxx 00000 7.34000 Fixed
GMAC GMAC4710 Xxxxxxxxx Xxx Xxxx 00000 7.91000 Fixed
GMAC XXXX0000 Xxxxx Xxxxxxx Xxx Xxxx 00000 7.91000 Fixed
GMAC GMAC4730 Xxxxxxx Xxxxx Xxxxxxxxxx 00000 7.54000 Fixed
GMAC XXXX0000 Xxxxx Xxxxxxxx 00000 7.99000 Fixed
GMAC GMAC4750 Xxxxxxxx Xxxxxxxx 00000 8.28000 Fixed
GMAC GMAC4760 Xxxxxxxx Xxxxxxx 00000 7.50000 Fixed
GMAC GMAC4770 Xxxxxxxx Xxxxxxx 00000 7.50000 Fixed
GMAC GMAC4780 Xxxxx Xxxxxxx 00000 7.50000 Fixed
GMAC GMAC4790 Xxxxxxx Xxxx Xxxxxxxxx 00000 7.27000 Fixed
GMAC GMAC4800 Xxx Xxxxxxx Xxxxxxxxxx 00000 8.83000 Fixed
GMAC GMAC4810 Xxxxxx Xxxxxx 00000 8.84000 Fixed
GMAC GMAC4820 Xxxxxx Xxxxx 00000 8.53000 Fixed
GMAC GMAC4830 Xxxx Xxxxx 00000 8.53000 Fixed
GMAC GMAC4840 Xxxxxxxx Xxxxxxxxxx 00000 7.30000 Fixed
GMAC GMAC4850 Xxxxxxx Xxxxxxxxxxx 0000 8.10000 Fixed
====================================================================================================================================
Seller Loan Number Original Balance Cut-off Date Balance Remaining Term Maturity Date Due Date
====================================================================================================================================
GMAC GMAC4440 13,100,000.00 13,081,110.09 119 11/1/07 01
GMAC GMAC4450 1,620,000.00 1,618,856.62 83 11/1/04 01
GMAC GMAC4460 1,037,000.00 1,036,268.10 83 11/1/04 01
GMAC GMAC4470 710,000.00 709,498.89 83 11/1/04 01
GMAC GMAC4480 2,800,000.00 2,798,073.06 143 11/1/09 01
GMAC GMAC4490 2,500,000.00 2,498,364.65 119 11/1/07 01
GMAC GMAC4500 2,200,000.00 2,198,600.00 131 11/1/08 01
GMAC GMAC4510 6,030,000.00 6,025,862.77 155 11/1/10 01
GMAC GMAC4515 3,000,000.00 2,982,847.98 119 11/1/07 01
GMAC GMAC4520 27,450,000.00 27,424,139.09 179 11/1/12 01
GMAC GMAC4530 3,500,000.00 3,497,479.50 119 11/1/07 01
GMAC GMAC4540 17,250,000.00 17,232,227.02 119 11/1/07 01
GMAC GMAC4550 2,400,000.00 2,398,262.95 119 11/1/07 01
GMAC GMAC4560 1,700,000.00 1,698,325.08 83 11/1/04 01
GMAC GMAC4580 2,437,500.00 2,435,905.54 119 11/1/07 01
GMAC GMAC4590 18,500,000.00 18,485,965.09 119 11/1/07 01
GMAC GMAC4600 2,400,000.00 2,398,250.70 119 11/1/07 01
GMAC GMAC4610 5,100,000.00 5,096,308.77 119 11/1/07 01
GMAC GMAC4620 2,100,000.00 2,098,660.90 119 11/1/07 01
GMAC GMAC4630 1,750,000.00 1,748,801.74 83 10/31/04 01
GMAC GMAC4640 2,000,000.00 1,998,630.56 83 10/31/04 01
GMAC GMAC4650 6,200,000.00 6,195,964.95 120 11/24/07 01
GMAC GMAC4660 17,500,000.00 17,487,448.08 119 11/1/07 01
GMAC GMAC4670 7,700,000.00 7,694,387.66 119 11/1/07 01
GMAC GMAC4680 13,000,000.00 13,000,000.00 120 12/1/07 01
GMAC GMAC4690 8,650,000.00 8,643,463.88 119 10/31/07 01
GMAC GMAC4700 11,600,000.00 11,591,111.53 119 11/1/07 01
GMAC GMAC4710 3,575,000.00 3,572,088.29 143 11/1/09 01
GMAC GMAC4720 5,625,000.00 5,620,418.64 143 11/1/09 01
GMAC GMAC4730 7,550,000.00 7,544,441.53 131 11/1/08 01
GMAC GMAC4740 1,390,000.00 1,389,065.44 119 11/1/07 01
GMAC GMAC4750 1,375,000.00 1,373,618.73 119 11/1/07 01
GMAC GMAC4760 1,222,000.00 1,221,093.10 83 11/1/04 01
GMAC GMAC4770 1,494,000.00 1,492,891.24 83 11/1/04 01
GMAC GMAC4780 711,000.00 710,472.33 83 11/1/04 01
GMAC GMAC4790 6,100,000.00 6,095,260.30 119 11/1/07 01
GMAC GMAC4800 4,100,000.00 4,093,461.65 118 9/2/07 01
GMAC GMAC4810 3,938,000.00 3,884,426.80 175 7/1/12 01
GMAC GMAC4820 2,000,000.00 1,998,071.67 119 11/1/07 01
GMAC GMAC4830 5,700,000.00 5,694,504.26 119 11/1/07 01
GMAC GMAC4840 4,540,000.00 4,540,000.00 120 12/1/07 01
GMAC GMAC4850 23,000,000.00 23,000,000.00 120 12/1/07 01
E-408
====================================================================================================================================
Seller Loan Number Monthly Payment Index Margin Next Rate Adjustment Rate Adjustment Frequency
====================================================================================================================================
GMAC GMAC4440 93,036.57 Not Applicable - Not Applicable
GMAC GMAC4450 11,605.88 Not Applicable - Not Applicable
GMAC GMAC4460 7,429.19 Not Applicable - Not Applicable
GMAC GMAC4470 5,086.53 Not Applicable - Not Applicable
GMAC GMAC4480 20,301.94 Not Applicable - Not Applicable
GMAC GMAC4490 18,562.43 Not Applicable - Not Applicable
GMAC GMAC4500 16,543.33 Not Applicable - Not Applicable
GMAC GMAC4510 43,784.48 Not Applicable - Not Applicable
GMAC GMAC4515 35,127.02 Not Applicable - Not Applicable
GMAC GMAC4520 193,992.16 Not Applicable - Not Applicable
GMAC GMAC4530 24,833.00 Not Applicable - Not Applicable
GMAC GMAC4540 134,569.86 Not Applicable - Not Applicable
GMAC GMAC4550 16,987.05 Not Applicable - Not Applicable
GMAC GMAC4560 13,939.66 One Month LIBOR 2.750 Monthly
GMAC GMAC4580 18,098.37 Not Applicable - Not Applicable
GMAC GMAC4590 127,964.08 Not Applicable - Not Applicable
GMAC GMAC4600 16,929.30 Not Applicable - Not Applicable
GMAC GMAC4610 36,097.48 Not Applicable - Not Applicable
GMAC GMAC4620 15,776.60 Not Applicable - Not Applicable
GMAC GMAC4630 12,719.09 Not Applicable - Not Applicable
GMAC GMAC4640 14,536.11 Not Applicable - Not Applicable
GMAC GMAC4650 46,143.38 Not Applicable - Not Applicable
GMAC GMAC4660 124,406.09 Not Applicable - Not Applicable
GMAC GMAC4670 54,314.84 Not Applicable - Not Applicable
GMAC GMAC4680 87,548.17 Not Applicable - Not Applicable
GMAC GMAC4690 59,949.87 Not Applicable - Not Applicable
GMAC GMAC4700 79,841.80 Not Applicable - Not Applicable
GMAC GMAC4710 26,476.92 Not Applicable - Not Applicable
GMAC GMAC4720 41,659.49 Not Applicable - Not Applicable
GMAC GMAC4730 52,997.64 Not Applicable - Not Applicable
GMAC GMAC4740 10,189.64 Not Applicable - Not Applicable
GMAC GMAC4750 10,868.77 Not Applicable - Not Applicable
GMAC GMAC4760 8,544.40 Not Applicable - Not Applicable
GMAC GMAC4770 10,446.26 Not Applicable - Not Applicable
GMAC GMAC4780 4,971.42 Not Applicable - Not Applicable
GMAC GMAC4790 41,695.53 Not Applicable - Not Applicable
GMAC GMAC4800 33,931.02 Not Applicable - Not Applicable
GMAC GMAC4810 39,567.87 Not Applicable - Not Applicable
GMAC GMAC4820 16,145.00 Not Applicable - Not Applicable
GMAC GMAC4830 46,013.24 Not Applicable - Not Applicable
GMAC GMAC4840 31,124.92 Not Applicable - Not Applicable
GMAC GMAC4850 170,371.97 Not Applicable - Not Applicable
=====================================================================================================================
Seller Loan Number Rate Cap Rate Floor ARD Loan Defeasance Loan Master Servicing Fee
=====================================================================================================================
GMAC GMAC4440 - - No NAP 0.0200
GMAC GMAC4450 - - No NAP 0.0200
GMAC GMAC4460 - - No NAP 0.0200
GMAC GMAC4470 - - No NAP 0.0200
GMAC GMAC4480 - - No NAP 0.0200
GMAC GMAC4490 - - No NAP 0.0200
GMAC GMAC4500 - - No NAP 0.0200
GMAC GMAC4510 - - No NAP 0.0200
GMAC GMAC4515 - - No NAP 0.0200
GMAC GMAC4520 - - No NAP 0.0200
GMAC GMAC4530 - - No NAP 0.0200
GMAC GMAC4540 - - No NAP 0.0200
GMAC GMAC4550 - - No NAP 0.0200
GMAC GMAC4560 - - No NAP 0.0200
GMAC GMAC4580 - - No NAP 0.0200
GMAC GMAC4590 - - No NAP 0.0200
GMAC GMAC4600 - - No NAP 0.0200
GMAC GMAC4610 - - No NAP 0.0200
GMAC GMAC4620 - - No NAP 0.0200
GMAC GMAC4630 - - No NAP 0.0200
GMAC GMAC4640 - - No NAP 0.0200
GMAC GMAC4650 - - No NAP 0.0200
GMAC GMAC4660 - - No NAP 0.0200
GMAC GMAC4670 - - No NAP 0.0200
GMAC GMAC4680 - - No NAP 0.0200
GMAC GMAC4690 - - No NAP 0.0200
GMAC GMAC4700 - - No NAP 0.0200
GMAC GMAC4710 - - No NAP 0.0200
GMAC GMAC4720 - - No NAP 0.0200
GMAC GMAC4730 - - No NAP 0.0200
GMAC GMAC4740 - - No NAP 0.0200
GMAC GMAC4750 - - No NAP 0.0200
GMAC GMAC4760 - - No NAP 0.0200
GMAC GMAC4770 - - No NAP 0.0200
GMAC GMAC4780 - - No NAP 0.0200
GMAC GMAC4790 - - No NAP 0.0200
GMAC GMAC4800 - - No NAP 0.0200
GMAC GMAC4810 - - No NAP 0.0200
GMAC GMAC4820 - - No NAP 0.0200
GMAC GMAC4830 - - No NAP 0.0200
GMAC GMAC4840 - - No NAP 0.0200
GMAC GMAC4850 - - No NAP 0.0200
E-409
====================================================================================================================================
Seller Loan Number Property Name Property Address
====================================================================================================================================
GMAC GMAC4860 CVS Drugstore 295 and 000 Xxxx Xxxxxxxxx Xxxx
GMAC GMAC4870 Canterbury Court Apartments 0000 Xxxxxxx Xxxx
GMAC GMAC4880 Village of Canterbury Apartments 0000 Xxxxxxxxx Xxxxxx
GMAC GMAC4900 Xxxxx Xxxxx Xxxxxxxx 000 Xxxxx Xxxxxx
GMAC GMAC4910 Northern Lights Hotel 000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx
XXXX XXXX0000 Highline Club Apartments 22123 Solomon Xxxxxxxxx
XXXX XXXX0000 Landmark Apartment and Xxxxxxx Xxxxxx Apartments 000 Xxxx Xx. / 000 Xxxx 0xx Xx.
GMAC GMAC4930A Landmark Apartments 000 Xxxx Xxxxxx
XXXX XXXX0000X Xxxxxxx Xxxxxx Apartments 000 Xxxx 0xx Xxxxxx
GMAC GMAC4940 Stadium Club Apartments 000 Xxxxxx Xxxxx
GMAC GMAC4970 Xxxxx Xxxx Xxxxxxx 00 Xxxxx Xxxx
GMAC GMAC4980 Xxxxxxxxx Xxxxxxx Xxxxxxxxxx 00xx Xxxxxx and 00xx Xxxxxx
165, 185, 193, 201, 205, 209, 210, 325-
333, 345, 355, 361, and 000 Xxxxxxx
XXXX XXXX0000 Xxxxxxx Xxxx Apartments Avenue
====================================================================================================================================
Seller Loan Number City State Zip Code Current Rate Interest Type
====================================================================================================================================
GMAC GMAC4860 Xxxxx Xxxxxxxxxxxx 00000 7.37500 Fixed
GMAC GMAC4870 Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 7.18000 Fixed
GMAC GMAC4880 Xxxxxx Xxxxxxxx 00000 7.09000 Fixed
GMAC GMAC4900 Xxxxx Xxxxx 00000 7.50000 Fixed
GMAC GMAC4910 Xxxxxxxxx Xxxxxx 00000 8.35000 Fixed
GMAC GMAC4920 Xxxx Xxxxxxxx 00000 7.26000 Fixed
GMAC GMAC4930 Various Iowa 7.85000 Fixed
GMAC GMAC4930A Xxxxxxxxx Xxxx 00000 0.00000
GMAC GMAC4930B Xxxxxxxx Xxxx 00000 0.00000
GMAC GMAC4940 Xxxxxxxxxx Xxxxxxx 00000 7.87500 Fixed
GMAC GMAC4970 Xxxxx Xxx Xxxx 00000 8.50000 Fixed
GMAC GMAC4980 Woodside (Queens) Xxx Xxxx 00000 8.62500 Fixed
GMAC GMAC4990 Xxxxxxxx Xxx Xxxx 00000 9.00000 Fixed
====================================================================================================================================
Seller Loan Number Original Balance Cut-off Date Balance Remaining Term Maturity Date Due Date
====================================================================================================================================
GMAC GMAC4860 2,100,000.00 2,100,000.00 240 12/1/17 01
GMAC GMAC4870 4,700,000.00 4,700,000.00 120 12/1/07 01
GMAC GMAC4880 13,500,000.00 13,500,000.00 121 1/1/08 01
GMAC GMAC4900 1,800,000.00 1,797,948.16 119 11/1/07 01
GMAC GMAC4910 5,000,000.00 5,000,000.00 120 12/1/07 01
GMAC GMAC4920 9,000,000.00 9,000,000.00 120 12/1/07 01
GMAC GMAC4930 3,000,000.00 3,000,000.00 120 12/1/07 01
GMAC GMAC4930A - - 0 00
GMAC GMAC4930B - - 0 00
GMAC GMAC4940 1,750,000.00 1,748,122.18 83 11/1/04 01
GMAC GMAC4970 22,750,000.00 22,622,389.01 351 3/1/27 01
GMAC GMAC4980 15,000,000.00 14,899,006.98 349 1/1/27 01
GMAC GMAC4990 17,000,000.00 16,923,733.73 352 4/1/27 01
E-410
====================================================================================================================================
Seller Loan Number Monthly Payment Index Margin Next Rate Adjustment Rate Adjustment Frequency
====================================================================================================================================
GMAC GMAC4860 16,757.31 Not Applicable - Not Applicable
GMAC GMAC4870 31,839.44 Not Applicable - Not Applicable
GMAC GMAC4880 90,633.30 Not Applicable - Not Applicable
GMAC GMAC4900 13,301.84 Not Applicable - Not Applicable
GMAC GMAC4910 39,757.20 Not Applicable - Not Applicable
GMAC GMAC4920 61,456.92 Not Applicable - Not Applicable
GMAC GMAC4930 22,857.18 Not Applicable - Not Applicable
GMAC GMAC4930A - Not Applicable - Not Applicable
GMAC GMAC4930B - Not Applicable - Not Applicable
GMAC GMAC4940 13,362.19 Not Applicable - Not Applicable
GMAC GMAC4970 174,927.82 Not Applicable - Not Applicable
GMAC GMAC4980 116,668.46 Not Applicable - Not Applicable
GMAC GMAC4990 136,785.84 Not Applicable - Not Applicable
=====================================================================================================================
Seller Loan Number Rate Cap Rate Floor ARD Loan Defeasance Loan Master Servicing Fee
=====================================================================================================================
GMAC GMAC4860 - - No NAP 0.0200
GMAC GMAC4870 - - No NAP 0.0200
GMAC GMAC4880 - - No NAP 0.0200
GMAC GMAC4900 - - No NAP 0.0200
GMAC GMAC4910 - - No NAP 0.0200
GMAC GMAC4920 - - No NAP 0.0200
GMAC GMAC4930 - - No NAP 0.0200
GMAC GMAC4930A - - No No 0.0200
GMAC GMAC4930B - - No No 0.0200
GMAC GMAC4940 - - No NAP 0.0200
GMAC GMAC4970 - - No NAP 0.0200
GMAC GMAC4980 - - No NAP 0.0200
GMAC GMAC4990 - - No NAP 0.0200
E-411
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 State Street Bank and Trust Company, as trustee
for the registered holders of GMAC Commercial Mortgage Securities,
Inc., Mortgage Pass-Through Certificates, Series 1997-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 the 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
E-412
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 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 issued
as of the date of the origination of the Mortgage Loan, 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,
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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; and
(xiii) if the Mortgagor has a leasehold interest in the related Mortgaged
Property, the original ground lease or a copy thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
E-414
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule C-1 hereto, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Purchaser, the Seller had good and marketable title to, and was the sole
owner and holder of, such Mortgage Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to such Mortgage Loan (other than, in
certain cases, the right of a subservicer to directly service such Mortgage
Loan). Such transfer validly assigns ownership of such Mortgage Loan to the
Purchaser free and clear of any pledge, lien, encumbrance or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right and
authority to sell, assign and transfer such Mortgage Loan. No provision of the
Mortgage Note, Mortgage or other loan document relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such Mortgage
Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such Mortgage
Loan set forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the Cut-off Date, and
has not been during the twelve-month period prior thereto, 30 days or more
delinquent in respect of any debt service payment required thereunder, without
giving effect to any applicable grace period.
(v) Permitted Encumbrances. The Permitted Encumbrances (as defined in the
Mortgage Loan Purchase Agreement of which this Exhibit C forms a part) do not
materially interfere with the security intended to be provided by the related
Mortgage, the current use or operation of the related Mortgaged Property or the
current ability of the Mortgaged Property to generate net operating income
sufficient to service the Mortgage Loan. If the Mortgaged Property is operated
as a nursing facility, a hospitality property or a multifamily property, the
Mortgage, together with any separate security agreement, similar agreement and
UCC financing statement, if any, establishes and creates a first priority,
perfected security interest, to the extent such security interest can be
perfected by the recordation of a Mortgage or the filing of a UCC financing
E-415
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.
(vii) No Waivers by Seller of Material Defaults. The Seller has not waived
any material default, breach, violation or event of acceleration existing under
the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of the
commencement of a proceeding for the condemnation of all or any material portion
of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
E-416
(xii) Enforceability. The related Mortgage Note and Mortgage and all other
documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged Property are
insured against loss by hazards of extended coverage in an amount (subject to a
customary deductible) at least equal to the lesser of the outstanding principal
balance of such Mortgage Loan and 100% of the full replacement cost of the
improvements located on such Mortgaged Property and the related hazard insurance
policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. If any portion of the related Mortgaged Property was, at the time
of the origination of such Mortgage Loan, in an area identified in the Federal
Register by the Flood Emergency Management Agency as having special flood
hazards, 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, and (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 comprehensive general liability insurance in amounts
generally required by the Seller, and at least six 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 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
E-417
the Purchaser, or its successors and assigns in respect of the Mortgage Loan, to
any liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage or loan documents in
the related Mortgage File requires the Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such Mortgage
Loan is not cross-collateralized with any mortgage loan that will not be
included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and the
Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground rents,
assessments for improvements or other similar outstanding charges affecting the
related Mortgaged Property which are or may become a lien of priority equal to
or higher than the lien of the related Mortgage. For purposes of this
representation 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
six 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
E-418
is in recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Assignment of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that are,
as of the Closing Date, required to be deposited with the mortgagee or its agent
have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of origination
of such Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage, except those which are
insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the title insurance referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel and/or other due diligence customarily performed
by the Seller, the improvements located on or forming part of such Mortgaged
Property comply in all material respects with applicable zoning laws and
ordinances (except to the extent that they may constitute legal non-conforming
uses).
(xxiv) Originator Authorized. To the extent required under applicable law
as of the Closing Date, the originator of such Mortgage Loan was authorized to
do business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent necessary to
ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge, there exists no
material default, breach or event of acceleration under the related Mortgage or
Mortgage Note, and (B) the Seller has not received actual notice of any event
(other than payments due but not yet delinquent) that, with the passage of time
or with notice and the expiration of any grace or cure period, would constitute
such a material default, breach or event of acceleration; provided, however,
that this representation and warranty does not cover any default, breach or
event of acceleration that specifically pertains to any matter otherwise covered
or addressed by any other representation and warranty made by the Seller herein.
E-419
(xxvi) Adjustable Mortgage Rate. If the Mortgage Loan has an adjustable
Mortgage Rate, all of the terms of the related Mortgage Note pertaining to
interest rate adjustments, payment adjustments and adjustments of the principal
balance are enforceable and such adjustments will not affect the priority of the
lien of the related Mortgage, and all such adjustments and all calculations made
before the Cut-off Date were made correctly and in full compliance with the
terms of the related Mortgage and Mortgage Note.
(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.
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor or operator of the related Mortgaged Property was in possession of all
material licenses, permits and authorizations required by applicable laws for
the ownership and operation of the related Mortgaged Property as it was then
operated and if a related Mortgaged Property is improved by a skilled nursing,
congregate care or assisted living facility, the most recent inspection or
survey by governmental authorities having jurisdiction in connection with such
licenses, permits and authorizations did not cite such Mortgaged Property for
material violations (which shall include only "Level A" (or equivalent)
violations in the case of skilled nursing facilities) that had not been cured or
as to which a plan of correction had not been submitted to and accepted by such
governmental authorities. To the extent such facility particpates in Medicaid or
Medicare, such facility is in compliance in all material respects with the
requirements of such program.
(xxx) Servicing. The servicing and collection practices used with respect
to the Mortgage Loan have complied with applicable law in all material respects
and are consistent with the servicing standard set forth in Section 3.01(a) of
the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. The related Mortgage or Mortgage Note, together
with applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in paragraph (xii)) such as to render the
rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
E-420
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage provides
that insurance proceeds and condemnation proceeds will be applied 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 each 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) Inspection. In connection with the origination or acquisition of
each Mortgage Loan, the Seller inspected or caused to be inspected the Mortgaged
Property.
(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 estate in real estate or, if the related Mortgage Loan is
secured in whole or
E-421
in part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest in
the Ground Lease but not by the related fee interest in such Mortgaged Property
(the "Fee Interest") or if the Mortgage Loan is secured in whole or in part by a
Ground Lease and a Fee Interest, either (1) the ground lessor's fee interest is
subordinated to the lien of the Mortgage or (2) the following apply to such
Ground Lease:
(a) To the actual knowledge of the Seller, such Ground Lease or a
memorandum thereof has been or will be duly recorded; such Ground
Lease (or the related estoppel letter or lender protection agreement
between the Seller and related lessor) permits the interest of the
lessee thereunder to be encumbered by the related Mortgage; and there
has been no material change in the payment terms of such Ground Lease
since the origination of the related Mortgage Loan, with the exception
of material changes reflected in written instruments that are a part
of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to any liens
or encumbrances superior to, or of equal priority with, the related
Mortgage, other than the ground lessor's related fee interest and
Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by the Purchaser
and its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(d) Such Ground Lease is in full force and effect, and the Seller has
received no notice that an event of default has occurred thereunder,
and, to the Seller's actual knowledge, there exists no condition that,
but for the passage of time or the giving of notice, or both, would
result in an event of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement, requires
the lessor under such Ground Lease to give notice of any default by
the lessee to the mortgagee, provided that the mortgagee 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;
E-422
(f) A mortgagee 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 other than in respect of a
total or substantially total loss or taking, will be applied either to
the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee 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; and
(i) Such Ground Lease does not impose any restrictions on subletting which
would be viewed, as of the date of origination of the related Mortgage
Loan, as commercially unreasonable by the Seller; and such Ground
Lease contains a covenant that the lessor thereunder is not permitted,
in the absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any subtenant of the lessee, or in any
manner, which would materially adversely affect the security provided
by the related Mortgage.
(j) Such Ground Lease requires the lessor to enter into a new lease in the
event of a termination of the Ground Lease by reason of a default by
the Mortgagor under the Ground Lease, including, rejection of the
ground lease in a bankruptcy proceeding.
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment
E-423
of a release price, 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 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.
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.
E-424
SCHEDULE C-1 to EXHIBIT C
REPRESENTATIONS AND WARRANTIES EXCEPTIONS
Exception to representation (xxxvii)(b) Leasehold Estate
West End Self Storage (GMAC 4750) - A mortgage exists on the ground
lessor's fee interest. However, a subordination and non-disturbance
agreement has been executed and delivered by the holder of such mortgage.
Representation (xxiii) No Material Encroachment
Crystal Court Apartments I (GMAC 4760) - The property is developed with
multiple buildings, some of which encroach against setback lines on a
property line common with the property which is collateral for Crystal
Court Apartments II (GMAC 4770). However, the subject property is a legal
non-conforming use.
Crystal Court Apartments II (GMAC 4770) - The property is developed with
multiple buildings, some of which encroach against setback lines on a property
line common with the property which is collateral for Crystal Court Apartments I
(GMAC 4760). However, the subject property is a legal non-conforming use.
X-000
XXXXXXX X-0
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of GMAC Commercial Mortgage Corporation ("GMACCM")
I, _________________, a _________________ of GMACCM (the "Seller"), hereby
certify as follows:
The Seller is a corporation duly organized and validly existing under the
laws of the State of California.
Attached hereto as Exhibit I are true and correct copies of the Certificate
of Incorporation and By-Laws of the Seller, which Certificate of Incorporation
and By-Laws are on the date hereof, and have been at all times in full force and
effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Seller and his genuine signature is set
forth opposite his name:
Name Office Signature
---- ------ ---------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of December 17, 1997
(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.
E-426
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
December [ ], 1997.
By:________________________________
Name:
Title:
I, [name], [title], hereby certify that ________________ is a duly elected
or appointed, as the case may be, qualified and acting ______________ of the
Seller and that the signatures appearing above is her genuine signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
December [ ], 1997.
By:________________________________
Name:
Title:
X-000
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SELLER
Certificate of GMAC Commercial Mortgage Corporation
In connection with the execution and delivery by GMAC Commercial Mortgage
Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
December 17, 1997 (the "Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. and the Seller, the Seller hereby certifies that (i) the
representations and warranties of the Seller in the Purchase Agreement are true
and correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Purchase Agreement.
Certified this ___ day of December, 1997.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:________________________________
Name:
Title:
E-428
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
December [ ], 1997
To: Persons on Annex A
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C2
Ladies and Gentlemen:
I am General Counsel to GMAC Commercial Mortgage Corporation (the
"Seller"). In that capacity, I am familiar with the issuance of certain Mortgage
Pass-Through Certificates, Series 1997-C2 (the "Certificates"), evidencing
undivided interests in a trust fund (the "Trust Fund") consisting primarily of
certain mortgage loans (the "Mortgage Loans"), pursuant to a Pooling and
Servicing Agreement, dated as of December 1, 1997 (the "Pooling and Servicing
Agreement"), among GMAC Commercial Mortgage Securities, Inc. (the "Company") as
depositor, the Seller as master servicer and special servicer and State Street
Bank and Trust Company as trustee (the "Trustee").
Certain of the Mortgage Loans were purchased by the Company from Xxxxxxx
Xxxxx Mortgage Company ("GSMC"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of December 17,
1997 (the "Goldman Mortgage Loan Purchase Agreement"), between Goldman and the
Company. Certain of the Mortgage Loans were purchased by the Company from the
Seller, pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of December 17, 1997 (the "GMACCM Mortgage Loan
Purchase Agreement"), between the Company and the Seller. Certain of the
Mortgage Loans were purchased by the Company from German American Capital
Corporation ("GACC"), pursuant to, and for the consideration described in, the
Mortgage Loan Purchase Agreement, dated as of December 17, 1997 (the "GACC
Mortgage Loan Purchase Agreement"), between GACC and the Company. The Pooling
and Servicing Agreement and the GMACCM Mortgage Loan Purchase Agreement are
referred to herein together as the "Agreements". Capitalized terms not defined
herein have the meanings set forth in the Agreements. This opinion is rendered
pursuant to Section 8(e) of the GMACCM Mortgage Loan Purchase Agreement.
E-429
December [ ], 1997
Page 2
The Company has sold the Class X, Class A-1, Class A-2, Class A-3, Class B,
Class C, Class D and Class E Certificates (collectively, the "Publicly Offered
Certificates") to Xxxxxxx, Sachs & Co. and Deutsche Xxxxxx Xxxxxxxx Inc. as
representatives (the "Representatives") for themselves and the other
underwriters (the "Underwriters") named in the Underwriting Agreement, dated as
of December 17, 1997 (the "Underwriting Agreement"), among the Company, the
Seller, and the Representatives, and sold the Class F, Class G, Class H, Class
J, Class K, Class R-I, Class R-II and Class R-III Certificates (collectively,
the "Privately Offered Certificates") to Xxxxxxx, Sachs & Co. and Deutsche
Xxxxxx Xxxxxxxx Inc. as initial purchasers (the "Initial Purchasers") pursuant
to the Certificate Purchase Agreement, dated as of December 17, 1997 (the
"Certificate Purchase Agreement"), among the Company, the Seller and the Initial
Purchasers.
In connection with rendering this opinion letter, I have examined or have
caused persons under my supervision to examine the Agreements and such other
records and other documents as I have deemed necessary. I have further assumed
that there is not and will not be any other agreement that materially
supplements or otherwise modifies the agreements expressed in the Agreements. As
to matters of fact, I have examined and relied upon representations of parties
contained in the Agreements and, where I have deemed appropriate,
representations and certifications of officers of the Company, the Seller, the
Trustee, other transaction participants or public officials. I have assumed the
authenticity of all documents submitted to me as originals, the genuineness of
all signatures other than officers of the Seller and the conformity to the
originals of all documents submitted to me as copies. I have assumed that all
parties, except for the Company and] the Seller, had the corporate power and
authority to enter into and perform all obligations thereunder. As to such
parties, I also have assumed the due authorization by all requisite corporate
action, the due execution and delivery and the enforceability of such documents.
I have further assumed the conformity of the Mortgage Loans and related
documents to the requirements of the Agreements.
In rendering this opinion letter, I do not express any opinion concerning
any law other than the law of the Commonwealth of Pennsylvania, the General
Corporation Law of the State of Delaware and the federal law of the United
States, and I do not express any opinion concerning the application of the
"doing business" laws or the securities laws of any jurisdiction other than the
federal securities laws of the United States. To the extent that any of the
matters upon which I am opining herein are governed by laws ("Other Laws") other
than the laws identified in the preceding sentence, I have assumed with your
permission and without independent verification or investigation as to the
reasonableness of such assumption, that such Other Laws and judicial
interpretation thereof do not vary in any respect material to this opinion from
the corresponding laws of the Commonwealth of Pennsylvania and judicial
interpretations thereof. I do not express any opinion on any issue not expressly
addressed below.
E-430
December [ ], 1997
Page 3
Based upon the foregoing, I am of the opinion that:
1. The Seller is duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of California, and has the
requisite power and authority, corporate or other, to own its properties
and conduct its business, as presently conducted by it, and to enter into
and perform its obligations under the Agreements.
2. Each of the Agreements has been duly and validly authorized, executed and
delivered by the Seller and, upon due authorization, execution and delivery
by the other parties thereto, will constitute the valid, legal and binding
agreements of the Seller, enforceable against the Seller in accordance with
their terms, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the rights of creditors, (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law,
and (iii) public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the enforceability
of the provisions of the Agreements which purport to provide
indemnification with respect to securities law violations.
3. No consent, approval, authorization or order of the Commonwealth of
Pennsylvania, or federal court or governmental agency or body is required
for the consummation by the Seller of the transactions contemplated by the
terms of the Agreements, except for those consents, approvals,
authorizations or orders which previously have been obtained.
4. Neither the consummation of any of the transactions contemplated by, nor
the fulfillment by the Seller of any other of the terms of, the Agreements,
will result in a material breach of any term or provision of the charter or
bylaws of the Seller or any Commonwealth of Pennsylvania or federal statute
or regulation or conflict with, result in a material breach, violation or
acceleration of or constitute a material default under the terms of any
indenture or other material agreement or instrument to which the Seller is
a party or by which it is bound or any order or regulation of any
Commonwealth of Pennsylvania or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Seller.
E-431
December [ ], 1997
Page 4
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity, except Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP, is entitled to rely hereon without prior written consent. Copies of this
opinion letter may not be furnished to any other person or entity, nor may any
portion of this opinion letter be quoted, circulated or referred to in any other
document without my prior written consent.
Very truly yours,
Xxxxx Xxxxxxx-Xxxx
General Counsel
E-432
December [ ], 1997
Page 5
Annex A
GMAC Commercial Mortgage Securities, Inc.
Xxxxxxx, Xxxxx & Co.
Deutsche Xxxxxx Xxxxxxxx Inc.
Residential Funding Securities Corporation
State Street Bank and Trust Company
Moody's Investor's Service, Inc.
Duff & Xxxxxx Credit Rating Co.
E-433
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
December 23, 1997
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C2
--------------------------------------------------
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as special
counsel to GMAC Commercial Mortgage Corporation ("GMACCM"), pursuant to Section
8(e) of the Mortgage Loan Purchase Agreement, dated December 17, 1997 (the
"GMACCM Mortgage Loan Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. (the "Purchaser") and GMACCM as the Seller, (in such capacity
the "Seller"), relating to the sale by the Seller of certain mortgage loans (the
"Mortgage Loans"), and pursuant to Section 6.11 of the Underwriting Agreement,
dated September 25, 1997, between the Purchaser and Xxxxxxx, Sachs & Co. and
Deutsche Mortgan Xxxxxxxx Inc., relating to that certain Pooling and Servicing
Agreement, dated as of December 1, 1997, among GMACCM as special servicer and
master servicer (in such respective capacities, the "Special Servicer" and the
"Master Servicer"), Purchaser, and State Street Bank and Trust Company, as
trustee (the "Pooling and Servicing Agreement," and together with the GMACCM
Mortgage Loan Purchase Agreement, the "Agreements"). Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Agreements.
In rendering this opinion, we have examined and relied upon executed copies
of the Agreements and originals or copies, certified or otherwise identified to
our satisfaction, of such certificates and other documents as we have deemed
appropriate for the purposes of rendering this opinion. We have examined and
relied upon, among other things, the documents and opinions delivered to you at
the closing being held today relating to the Certificates, as well as (a) the
Prospectus and the Memorandum, (b) an executed copy of the Mortgage Loan
Purchase Agreement, and (c) an executed copy of the Pooling and Servicing
Agreement.
E-434
Page 2
In conducting our examination, we have assumed, without investigation, the
legal capacity of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents. We have,
with your permission, also relied upon the opinion of even date herewith of
Xxxxx Xxxxxxx-Xxxx, Esq., General Counsel to GMACCM, addressed to you. As to any
facts material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of GMACCM and others.
We are members of the bar of the State of New York and do not purport to be
experts on or to express any opinion herein concerning any laws other than the
laws of the State of New York and the federal laws of the United States of
America. We express no opinion herein as to the laws of any other jurisdiction.
Based upon the matters stated herein and upon such investigation as we have
deemed necessary, we are of the opinion that the Agreements have been duly
authorized, executed and delivered by GMACCM and, upon due authorization,
execution and delivery by the Purchaser, will each constitute a valid, legal and
binding agreement of GMACCM, enforceable against GMACCM in accordance with its
respective terms, except as enforceability may be limited by (a) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws relating to or affecting the enforcement of creditors rights
generally and (b) general principles of equity, whether enforcement is sought in
a proceeding in equity or at law.
In rendering the opinions expressed above, we express no opinion regarding
any severability provision in the Agreements or regarding the legal, valid and
binding effect or the enforceability of any indemnification provision in the
Agreements to the extent that any such provisions may be deemed to cover matters
under the federal securities laws. The opinions expressed above are subject to
the further qualification that certain of the remedial provisions in the
Agreements may be limited or rendered ineffective or unenforceable in whole or
in part under the laws of the State of New York (but the inclusion of such
provisions does not make the remedies provided by the Agreements inadequate for
the practical realization of the rights and benefits purported to be provided
thereby, except for the economic consequences of procedural or other delay).
E-435
We have not ourselves checked the accuracy or completeness of, or otherwise
independently verified, the information furnished with respect to the Prospectus
or the Memorandum. In addition, as you are aware, we did not examine or review
the Mortgage Files. However, in the course of the preparation by the Purchaser
of the Prospectus and the Memorandum, we have participated in conferences with
certain officers of GMACCM, the Purchaser, counsel to the Purchaser and your
representatives, during which the contents of the Prospectus and the Memorandum
and related matters were discussed. On the basis of the discussions referred to
above, although we are not passing upon, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Prospectus and the Memorandum, and without independent check or verification
except as stated, no facts have come to our attention that have caused us to
believe that either the Prospectus or the Memorandum (other than financial and
statistical data included or not included therein or incorporated by reference
therein, as to which we express no opinion), as of its issue date, contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring to the
actual knowledge of the Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP attorneys who have
represented you in connection with the transactions contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation to determine the existence or absence of such facts
and no inference as to our knowledge concerning such facts should be drawn from
the fact that such representation has been undertaken by us.
This letter is limited to the specific issues addressed herein and the
opinion rendered above is limited in all respects to laws and facts existing on
the date hereof. By rendering this opinion, we do not undertake to advise you
with respect to any other matter or of any change in such laws or facts or in
the interpretations of such laws which may occur after the date hereof.
We are furnishing this opinion to you solely for your benefit. This opinion
is not to be used, circulated, quoted or otherwise referred to for any other
purpose, except that the persons listed on Exhibit A hereto may rely upon this
opinion in connection with their rating of the Certificates to the same extent
as if this opinion had been addressed to them.
Very truly yours,
XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP
E-436
