Exhibit 99.3
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of August 21, 1998, between Restructured Asset Certificates With
Enhanced Returns, Series 1998-ML Trust as seller (the "Seller"), of which
LaSalle National Bank is the trustee (in such capacity, the "Seller Trustee")
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 Standard
& Poor's Ratings Services, Xxxxx'x Investors Service, Inc. and FITCH IBCA Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust Fund will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of August 1, 1998 (the "Pooling and Servicing Agreement"), among the
Purchaser as depositor, GMAC Commercial Mortgage Corporation as master servicer
(in such capacity, the "Master Servicer") and special servicer (in such
capacity, the "Special Servicer"), LaSalle National Bank as trustee (in such
capacity, the "Trustee") and ABN AMRO Bank N.V. as fiscal agent. Capitalized
terms not otherwise defined herein have the meanings assigned to them in the
Pooling and Servicing Agreement as in effect on the Closing Date (as defined
below).
The Purchaser intends to sell certain of the Certificates to Xxxxxx
Brothers Inc. and Deutsche Bank Securities Inc. (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 Xxxxxx Brothers Inc. (the "Initial
Purchaser"), 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:
SECTION 1. AGREEMENT TO PURCHASE.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on August 27, 1998 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The "Cut-off Date" with respect to any Mortgage Loan is the
Due Date for such Mortgage Loan in August 1998. As of the close of business on
their respective Cut-off Dates, 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 $653,901,929, 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 a term sheet (the "Allocation Agreement") that has been
agreed to by the Mortgage Loan Sellers and the Purchaser.
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 for each Mortgage Loan, together with all of the Seller's right,
title and interest in and to the proceeds of any related title, hazard, or other
insurance policies and any escrow, reserve or other comparable accounts related
to the Mortgage Loans. The Purchaser shall be entitled to (and, to the extent
received by or on behalf of the Seller, the Seller shall deliver or cause to be
delivered to or at the direction of the Purchaser) all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date for such
Mortgage Loan, and all other recoveries of principal and interest collected
thereon after such Cut-off Date. All scheduled payments of principal and
interest due thereon on or before the Cut-off Date for each Mortgage Loan and
collected after such Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller hereby agrees that, at least five (5) Business Days before the
Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on EXHIBIT B hereto) for each Mortgage Loan so
assigned to the extent that such Mortgage File was delivered to the Seller.
(c) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with EXHIBIT B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession 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
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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.
(d) The Seller's records will reflect the transfer of the Mortgage Loans
to the Purchaser as a sale.
SECTION 3. EXAMINATION OF MORTGAGE LOAN FILES AND DUE DILIGENCE REVIEW.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files that may be undertaken by or on behalf of the Purchaser. The fact that
the Purchaser has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files and/or Servicing Files shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations, warranties and covenants set forth in or
contemplated by Section 4.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER.
(a) RESERVED.
(b) The Seller Trustee, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller Trustee is duly organized, validly existing and
in good standing under the laws of the United States, 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
Trustee, and the performance and compliance with the terms of this
Agreement by the Seller Trustee, will not violate the Seller Trustee'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
Trustee to carry out the transactions contemplated by this Agreement.
(iii) The Seller Trustee 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 Trustee, enforceable against the Seller Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement
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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 Trustee 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 Trustee's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Seller
Trustee to perform its obligations under this Agreement or the financial
condition of the Seller Trustee.
(vi) No litigation is pending with regard to which Seller Trustee
has received service of process or, to the best of the Seller Trustee's
knowledge, threatened against the Seller Trustee or the Seller the outcome
of which, in the Seller Trustee's good faith and reasonable judgment, could
reasonably be expected to prohibit the Seller Trustee or the Seller from
entering into this Agreement or materially and adversely affect the ability
of the Seller Trustee or the Seller to perform its obligations under this
Agreement.
(vii) The Seller Trustee has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the Underwriters,
the Initial Purchaser, and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale of
the Mortgage Loans by the Seller to the Purchaser or the consummation of
any of the other transactions contemplated hereby.
(viii) Neither the Seller Trustee nor anyone acting on its behalf
has (A) offered, pledged, sold, disposed of or otherwise transferred any
Mortgage Loan, any interest in any Mortgage Loan 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 Mortgage Loan, any
interest in any Mortgage Loan or any other similar security from any person
in any manner, (C) otherwise approached or negotiated with respect to any
Mortgage Loan, any interest in any Mortgage Loan 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
Mortgage Loan, any interest in any Mortgage Loan 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 Mortgage Loans or require
registration or qualification pursuant to the Securities Act or any state
securities law of any Mortgage Loan. In addition, the Seller Trustee 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.
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(ix) 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 Trustee with this Agreement, or the consummation
by the Seller Trustee 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 Trustee under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser, the
party discovering such breach shall give prompt written notice to the other
party hereto.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser's organizational
documents or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the 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.
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(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 Purchaser and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the transactions contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution, delivery
and performance of or compliance by the Purchaser with this Agreement, or
the consummation by the Purchaser of any transaction contemplated hereby,
other than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. RESERVED.
SECTION 7. CLOSING.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Xxxxx, Xxxxx & Xxxxx, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
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(i) All of the representations and warranties of the Seller
Trustee specified herein shall be true and correct as of the Closing Date,
and the Aggregate Cut-off Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee,
the Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its sole determination;
(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; and
(vi) 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 C-1
hereto, executed by the Secretary or an assistant secretary of the Seller
Trustee, and dated the Closing Date, and upon which the Purchaser and each
Underwriter and the Initial Purchaser may rely, attaching thereto as exhibits
the organizational documents of the Seller;
(c) A certificate of the Seller substantially in the form of Exhibit C-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser and each Underwriter
and each Initial Purchaser may rely;
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(d) Written opinions of counsel for the Seller Trustee and counsel for the
Seller, in such form and substance and subject to such reasonable assumptions
and qualifications as may be requested by counsel for the Seller and acceptable
to counsel for the Purchaser, dated the Closing Date and addressed to the
Purchaser and each Underwriter and each Initial Purchaser;
(e) The Supplemental Agreement, substantially in the form of Exhibit D
hereto, dated as of August 21, 1998, between GMAC Commercial Mortgage
Corporation ("GMACCM" and the Seller, duly executed and delivered by GMACCM and
the Seller;
(f) The Assignment Agreement, substantially in the form of Exhibit E
hereto, dated August 21, 1998, between the Seller and the Purchaser, duly
executed and delivered by the Seller and the Purchaser;
(g) The Indemnification Agreement, substantially in the form of Exhibit F
hereto, dated as of August 21, 1998, between GMACCM and Xxxxxx Xxx, Inc., duly
executed and delivered by GMACCM and Xxxxxx Xxx, Inc.; and
(h) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION 9. RESERVED.
SECTION 10. RESERVED.
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 Xxxxxx XXX Inc. as Sponsor and
LaSalle National Bank as Trustee for Restructured Asset Certificates With
Enhanced Returns, Series 1998-ML Trust, at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000-0000 Attention: RACERS Series 1998-ML, facsimile no.
(000) 000-0000, or to such other address or facsimile number as the Seller may
designate in writing to the Purchaser.
SECTION 12. RESERVED.
SECTION 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
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All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of the Seller
submitted pursuant hereto, shall remain operative and in full force and effect
and shall survive delivery of the Mortgage Loans by the Seller to the Purchaser
or its designee.
SECTION 14. SEVERABILITY OF PROVISIONS.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 17. FURTHER ASSURANCES.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 18. SUCCESSORS AND ASSIGNS.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller
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may be merged or consolidated, or any corporation or other entity resulting from
any merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser, and their permitted successors and assigns.
SECTION 19. AMENDMENTS.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced.
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IN WITNESS WHEREOF, the 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.
RESTRUCTURED ASSET CERTIFICATES WITH ENHANCED
RETURNS, SERIES 1998-ML TRUST
By: LaSalle National Bank, not in its
individual capacity, but solely as
trustee under the Trust Agreement, dated
as of June 26, 1998, as amended and
restated, between Xxxxxx Xxx Inc., as
sponsor, and LaSalle National Bank, as
trustee.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
-----------------------------------
Title: First Vice President
----------------------------------
GMAC COMMERCIAL MORTGAGE SECURITIES,
INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall collectively consist of the
following documents:
(i) the original Mortgage Note, endorsed by the most
recent endorsee prior to the Trustee or, if none,
by the originator, without recourse, either in
blank or to the order of the Trustee in the
following form: "Pay to the order of LaSalle
National Bank, as trustee for the registered
holders of GMAC Commercial Mortgage Securities,
Inc., Mortgage Pass-Through Certificates, Series
1998-C2, without recourse";
(ii) the original or a copy of the Mortgage and, if
applicable, the originals or copies of any
intervening assignments thereof showing a complete
chain of assignment from the originator of the
Mortgage Loan to the most recent assignee of
record thereof prior to the Trustee, if any, in
each case with evidence of recording indicated
thereon;
(iii) an original assignment of the Mortgage, in
recordable form, executed by the most recent
assignee of record thereof prior to the Trustee
or, if none, by the originator, either in blank or
in favor of the Trustee (in such capacity);
(iv) the original or a copy of any related Assignment
of Leases (if such item is a document separate
from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments
thereof showing a complete chain of assignment
from the originator of the Mortgage Loan to the
most recent assignee of record thereof prior to
the Trustee, if any, in each case with evidence of
recording thereon;
(v) an original assignment of any related Assignment
of Leases (if such item is a document separate
from the Mortgage), in recordable form, executed
by the most recent assignee of record thereof
prior to the Trustee or, if none, by the
originator, either in blank or in favor of the
Trustee (in such capacity), which assignment may
be included as part of the corresponding
assignment of Mortgage referred to in clause (iii)
above;
(vi) an original or copy of any related Security
Agreement (if such item is a document separate
from the Mortgage) and, if applicable, the
B-1
originals or copies of any intervening assignments
thereof showing a complete chain of assignment
from the originator of the Mortgage Loan to the
most recent assignee of record thereof prior to
the Trustee, if any;
(vii) an original assignment of any related Security
Agreement (if such item is a document separate
from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee
or, if none, by the originator, either in blank or
in favor of the Trustee (in such capacity), which
assignment may be included as part of the
corresponding assignment of Mortgage referred to
in clause (iii) above;
(viii) originals or copies of all assumption,
modification, written assurance and substitution
agreements, with evidence of recording thereon if
appropriate, in those instances 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
B-2
and continuation statements were in the possession
of the Seller, a UCC financing statement executed
by the most recent assignee of record prior to the
Trustee or, if none, by the originator, evidencing
the transfer of such security interest, either in
blank or in favor of the Trustee;
(xii) the original or a copy of the power of attorney
(with evidence of recording thereon, if
appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or
instrument referred to above was not signed by the
Mortgagor; 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.
B-3
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER TRUSTEE
CERTIFICATE OF LASALLE NATIONAL BANK
I, Xxxx X. Xxxxxxxx, a Trust Administrator of LaSalle National Bank, not in
its individual capacity but solely as trustee (in such capacity, the "Seller
Trustee") for the Restructured Asset Certificates With Enhanced Returns, Series
1998-ML Trust (the "Seller"), hereby certify as follows:
The Seller Trustee is duly organized and validly existing under the laws of
the United States.
Attached hereto as EXHIBIT I are true and correct copies of the Amended and
Restated Trust Agreement 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 LaSalle National Bank, in its capacity as
Seller Trustee of the Seller, and his genuine signature is set forth opposite
his name:
Name Office Signature
---- ------ ---------
Xxxxxxx X. Xxxxx First Vice President _________________________
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated August 21, 1998 (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.
C-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August __, 1998.
By:
-------------------------------
Name:
Title:
I, ________________________, hereby certify that ________________ is a duly
elected or appointed, as the case may be, qualified and acting ______________ of
LaSalle National Bank and that the signatures appearing above is his or her
genuine signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August _ __, 1998.
By:
-------------------------------
Name:
Title:
C-2
EXHIBIT C-2
FORM OF CERTIFICATE OF THE SELLER TRUSTEE
CERTIFICATE OF LASALLE NATIONAL BANK
In connection with the execution and delivery by Restructured Asset
Certificates With Enhanced Returns, Series 1998-ML Trust (the "Seller") of, and
the consummation of the transaction contemplated by, that certain Mortgage Loan
Purchase Agreement, dated as of August 21, 1998 (the "Purchase Agreement"),
between GMAC Commercial Mortgage Securities, Inc. and the Seller, the Seller
Trustee hereby certifies that (i) the representations and warranties of the
Seller Trustee 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 ___th day of August, 1998.
By: LASALLE NATIONAL BANK, not in its
individual capacity, but solely as
trustee of the Restructured Asset
Certificates With Enhanced Returns,
Series 1998-ML Trust.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
X-0
XXXXXXX X
XXXX XX XXXXXXXXXXXX XXXXXXXXX
X-0
EXHIBIT E
FORM OF ASSIGNMENT
E-1
EXHIBIT F
FORM OF INDEMNIFICATION AGREEMENT
F-1
