EXHIBIT 99.3
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of October 30, 0000, xxxxxxx Xxxxxxxxxxxxxx Xxxxxxxxxxx (X.X.)
Capital Corporation (to be known as ING (U.S.) Capital Corporation as of
November 1, 1996) 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 Standard &
Poor's Ratings Services, a Division of XxXxxx-Xxxx Companies, Inc. and/or
Xxxxx'x Investor's Services, 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 November 1, 1996 (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 the Certificates to Xxxxxxx, Xxxxx & Co.
("Goldman") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx", and together with
Goldman, the "Underwriters") pursuant to, in the case of the Registered
Certificates, an underwriting agreement dated the date hereof (the "Underwriting
Agreement") and, in the case of the remaining Certificates (the "Non-Registered
Certificates"), 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 November 7, 1996 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on November 1, 1996 (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
$157,951,168, subject to a variance of plus
or minus 5.0%. 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 acknowledges that it is obligated to deliver to and
deposit with, or cause to be delivered to and deposited with, and further
represents and warrants that it has so delivered to and deposited with, or
caused to be delivered to and deposited with, State Street Bank and Trust
Company (the "Interim Custodian") the Mortgage File (as described on Exhibit B
hereto) for each Mortgage Loan so assigned. If the Seller cannot deliver, or
cause to be delivered, as to any Mortgage Loan, the original or a copy of any of
the documents and/or instruments referred to in clauses (ii), (iv), (viii),
(xi)(A) and (xii) of Exhibit B, with evidence of recording thereon, solely
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, or because
such original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 2(b) shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Interim
Custodian, 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
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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 Interim Custodian 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 Interim
Custodian shall be authorized to release to the Purchaser or its designee all of
the Mortgage Files in the Interim Custodian's possession relating to the
Mortgage Loans.
(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.
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(e) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale.
SECTION 3. EXAMINATION OF MORTGAGE LOAN FILES AND DUE DILIGENCE
REVIEW.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER.
(a) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates), 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 authorized, validly
existing and in good standing under the laws of the State of Delaware,
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.
(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, 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 Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller
has received service of process or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit the
Seller from entering into this Agreement or, in the Seller's good faith
and reasonable judgment, is likely to materially and adversely affect
either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, ContiFinancial Services Corporation, ING Baring (U.S.)
Corporation, 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-9 through A-45, 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
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relates to the Mortgage Loans and/or the Seller and does not represent
a restatement or aggregation of the information on the Loan Detail, the
information set forth in the Prospectus Supplement and the Memorandum
(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.
(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 B which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the Purchaser
or its successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PURCHASER.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the 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,
ContiFinancial Services Corporation, ING Baring (U.S.) Securities, Inc.
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.
(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).
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.
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(b) Notwithstanding Section 6(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
(c) In connection with any repurchase of 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) 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 circumstance
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 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 Xxxxxxx Xxxxxxxx & Wood, Two Xxxxx 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 of this
Agreement (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 Interim Custodian, 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 hereof;
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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 hereof 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 Delaware, 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) A written opinion of counsel for the Seller, substantially in the
form of Exhibit D- 3 hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the Purchaser
and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested
by the Rating Agencies in connection with the issuance of the Certificates, each
of which shall include the Purchaser and each Underwriter as an addressee; and
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(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 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.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 33-94448 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 October 22,
1996, as supplemented by the prospectus supplement dated October 30, 1996 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated October 30, 1996, relating to
the NonRegistered 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
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Securities and Exchange Commission (the "Commission") to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Peabody & 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"). This indemnity agreement will be in addition
to any liability which the Seller may otherwise have.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller (the "indemnifying party") under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; PROVIDED,
HOWEVER, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election to assume the defense of such action
and approval by the indemnified party of counsel, which approval will not be
unreasonably withheld, the indemnifying party will not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the 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
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relative fault of the indemnified and indemnifying parties in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified and indemnifying parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by PRO RATA
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 9, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
9 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. COSTS.
Costs relating to the transactions contemplated hereby shall be borne
by the respective parties hereto 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:
Xx. Xxxxx Xxxxxx, facsimile no. (000) 000-0000, with a copy to GMAC Mortgage
Corporation, 0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxx Xxxxxxxx, facsimile no. (000) 000-0000 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 ING (U.S.) Capital Corporation at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxx Xxxxxx, facsimile
no. (000) 000-0000, with a copy to ING (U.S.) Capital
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Corporation at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel, 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. 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 representations, warranties,
covenants and indemnities may be enforced by or on behalf of any such person or
entity against the Seller to the same extent as if it was a party hereto.
SECTION 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14. SEVERABILITY OF PROVISIONS.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
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. 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.
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The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. SUCCESSORS AND ASSIGNS.
The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. AMENDMENTS.
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary hereof without the prior
consent of that person.
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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.
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By:_______________________________________
Name:
Title:
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:______________________________________
Name:
Title:
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, a
Fixed-Rate Loan or a Step-Down Loan;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B)
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) the Loan Group.
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.
ING CAPITAL MORTGAGE LOAN SCHEDULE
Loan Control Property Property Interest
Counter Number Property Name Property Address Property City State Zip Rate
9 ING56062 000 Xxxxxxxxxx Xxxxx 000 Xxxxxxxxxx Xx. Xxxxx Xxxx XX 00000 8.750
10 ING56062 Tech Center X-00 Xxxx Xx.,000-000 Xxxxx Xx Xxxxx Xxxx XX 00000 8.750
11 ING57027 Dadeland 0000 Xxxxx Xxxxxxx Xx. Xxxxx XX 00000 9.655
14 ING57012 0xx & 0xx Xxxxxxx 0xx & 4th Battery Xxxxxxx XX 00000 9.906
15 ING56875 Centra 600 000 Xxx Xxxxxxx Xxxx Xxxxxx Xxxx XX 00000 9.825
16 ING56911 Lantana Cascade 0000 X. Xxxxxxxx Xxx Xxxxxxx XX 00000 8.160
17 ING57094 0000 Xxxxxxxxxxx Xxxxxx 0000 Xxxxxxxxxxx Xxxxxx, X.X. Xxxxxxxxxx XX XX 00000 10.005
18 ING56279 Radisson Agoura Hills 00000 Xxxxxx Xxxx Xxxxxx Xxxx XX 00000 9.850
20 ING57026 Westwind/Oak Ridge 0000-0000 Xxxx Xxxxx Xx Xxxxx Xxx XX 00000 9.988
28 ING56347 Xxxxxxx Medical 000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000 9.020
29 ING56874 Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000 8.750
40 ING57095 0000 Xxx Xxxxxx 0000 Xxx Xxxxxx Xxxxxxxxxx XX XX 00000 9.483
42 ING56510 Georgetowne Apartments 0000 Xxxxx 000 Xxxxx Xxxxx XX 00000 9.558
46 ING0002 The Dome Building 0000-0000 Xxxxxxxx Xxxx. Xxx Xxxxxxx XX 00000 9.320
47 XXX00000 Xxxxx Xxx Xxx 00000 & 00000 Xxxxxx Xxx Xxx Xxx Xxxxx XX 00000 10.682
Way; 12865 Xxxxxxxx Xxxxxx Xxx
Xxx
00 XXX00000 Xxxxxxx Xxxxx 0000-00 0xx Xxxxxx Xxxxx Xxxxxx XX 00000 9.960
53 ING0003 Woodlands of Kennesaw 0000 X. Xxxx Xxxxxxx Xxxxxxxx XX 00000 9.470
58 ING56616 Lemme Building 00-00 Xxxxx Xxxxxx Xxxxxxx XX 00000 8.410
60 ING55989 The Grand 0000 Xxxxx Xxxxxxxx Xxxxx Xxxxx XX 00000 9.860
61 ING55638 Xxxxxxx Xxxxx 0000 Xxxxxxxx Xxxxx Xx XX 00000 10.750
62 XXX00000 Xxxxxxx Xxxxxx Xxxxxx 0000 Xxxxxxx Xxxxx Xxxxxxxx Xxxx XX 00000 10.103
65 ING56668 Holiday Inn Grand Rapids 000 00xx Xxxxxx, X.X. Xxxxx Xxxxxx XX 00000 9.560
71 ING55648 Broadmoor Shopping Center 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx XX 00000 10.750
72 ING55649 Hobbs Plaza 0000 Xxxxx Xxxxxx Xx Xxxxx XX 00000 10.750
87 ING56937 Abington Grove 000 X. Xxxxxx Xx. Xxxxxxxx XX 00000 10.050
Next
Loan Rate Original Cut-Off Date Remaining Maturity Payment Payment
Counter Type Balance Balance Term Date Due Date Amount Index Margin
9 Fixed 12231000 12185012 68 7/1/02 12/1/96 100556.38 0.000
10 Fixed 6500250 6475809 68 7/1/02 12/1/96 53441.39 0.000
11 Fixed 16100000 16100000 117 8/1/06 12/1/96 129544.26 0.000
14 Fixed 12382600 12382600 68 7/1/02 12/1/96 102223.74 0.000
15 Fixed 11876625 11876625 114 5/1/06 12/1/96 97239.70 0.000
16 Fixed 9950000 9950000 49 11/22/00 12/1/96 68559.66 0.000
17 Fixed 9200000 9200000 50 12/31/00 12/1/96 76702.69 0.000
18 Fixed 8585000 8585000 60 11/1/01 12/1/96 81995.73 0.000
20 Fixed 7537500 7537500 57 8/1/01 12/1/96 62739.07 0.000
28 Fixed 6554925 6554925 108 11/1/05 12/1/96 58976.36 0.000
29 Fixed 6500000 6500000 114 5/1/06 12/1/96 53439.34 0.000
40 Fixed 5340000 5340000 50 12/31/00 12/1/96 42200.64 0.000
42 Fixed 5200000 5200000 110 1/1/06 12/1/96 41417.24 0.000
46 Fixed 4700000 4697599 119 10/1/06 12/1/96 38904.39 0.000
47 Fixed 4545000 4545000 54 5/1/01 12/1/96 40455.12 0.000
52 Fixed 4242000 4225636 43 6/1/00 12/1/96 38427.54 0.000
53 Fixed 4215000 4204910 56 6/5/01 12/1/96 35745.60 0.000
58 Fixed 4000000 3967749 76 3/1/03 12/1/96 31966.84 0.000
60 Fixed 3700000 3615529 104 7/1/05 12/1/96 35363.28 0.000
61 Fixed 3500000 3468114 38 1/1/00 12/1/96 32671.85 0.000
62 Fixed 3425500 3425500 58 9/1/01 12/1/96 28840.56 0.000
65 Fixed 3264000 3254865 76 3/1/03 12/1/96 30552.76 0.000
71 Fixed 2100000 2080869 38 1/1/00 12/1/96 19603.11 0.000
72 Fixed 600000 594534 38 1/1/00 12/1/96 5600.89 0.000
87 Fixed 2023400 1983391 60 11/1/01 12/1/96 18458.02 0.000
Next Interest
Loan Interest Adjustment Life Life
Counter Adj Date Frequency Cap Floor Group
9 0.000 0.000 Group 2
10 0.000 0.000 Group 2
11 0.000 0.000 Group 2
14 0.000 0.000 Group 2
15 0.000 0.000 Group 2
16 0.000 0.000 Group 2
17 0.000 0.000 Group 2
18 0.000 0.000 Group 2
20 0.000 0.000 Group 2
28 0.000 0.000 Group 2
29 0.000 0.000 Group 2
40 0.000 0.000 Group 2
42 0.000 0.000 Group 2
46 0.000 0.000 Group 2
47 0.000 0.000 Group 2
52 0.000 0.000 Group 2
53 0.000 0.000 Group 2
58 0.000 0.000 Group 2
60 0.000 0.000 Group 2
61 0.000 0.000 Group 2
62 0.000 0.000 Group 2
65 0.000 0.000 Group 2
71 0.000 0.000 Group 2
72 0.000 0.000 Group 2
87 0.000 0.000 Group 2
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 1996-C1, 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 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
which was in the possession of the Seller at the time
the Mortgage Files were delivered to the Trustee;
(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
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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 Interim Custodian and (B)
if any such security interest is perfected and the
earlier UCC financing statements and continuation
statements were in the possession of the Seller, a
UCC financing statement executed by the most recent
assignee of record prior to the Trustee or, if none,
by the originator, evidencing the transfer of such
security interest, either in blank or in favor of the
Trustee;
(xii) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate)
granted by the mortgagor if the Mortgage, Mortgage
Note or other document or instrument referred to
above was signed on behalf of the mortgagor; 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, the Trustee or the Interim Custodian, such
term shall not be deemed to include such documents and instruments required to
be included therein unless they are actually so received.
[XXX-7675:~1.NY01] 11/19/96 8:26pm
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, that:
(i) 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
primary service such Mortgage Loan).
(ii) 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) 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) Such Mortgage Loan was not, as of the Cut-off Date, 30
days or more delinquent in respect of any Monthly Payment of principal
and/or interest required thereunder, without giving effect to any
applicable grace period.
(v) The Mortgage for such Mortgage Loan constitutes a valid
first lien upon the related Mortgaged Property, including all buildings
located thereon and all fixtures attached thereto, subject only to (and
such Mortgaged Property is free and clear of all encumbrances and liens
having priority over the lien of such Mortgage, except for) (A) the
lien of current real property taxes and assessments not yet due and
payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, and (C) exceptions and
exclusions specifically referred to in the lender's title insurance
policy issued or, as evidenced by a "marked-up" commitment, to be
issued in respect of such Mortgage Loan (the exceptions set forth in
the foregoing clauses (A), (B) and (C) collectively, "Permitted
Encumbrances"). The Permitted Encumbrances do not materially interfere
with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property, or the
current ability of the related Mortgaged Property to generate net
operating income sufficient to service the Mortgage Loan.
(vi) The lien of the related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of the related Mortgage
Loan, its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the related 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
any Mortgage Loan, a policy meeting the foregoing description is
evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). To the Seller's actual knowledge, no material
claims have been made under such title policy and no claims have been
paid thereunder.
(vii) The Seller has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage
or Mortgage Note.
(viii) There is no valid offset, defense or counterclaim to
such Mortgage Loan.
(ix) The Seller has not received actual notice (A) that there
is any proceeding pending or threatened for the total or partial
condemnation of the related Mortgaged Property or (B) that there is any
material damage at the related Mortgaged Property that materially and
adversely affects the value of such Mortgaged Property.
(x) At origination, such Mortgage Loan complied in all
material respects with all requirements of federal, state and local
laws, including, without limitation, laws relating to usury, relating
to the origination of such Mortgage Loan.
-2-
(xi) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage for such Mortgage Loan
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) All improvements upon the related Mortgaged Property
securing a Mortgage Loan 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 insurable replacement cost of the
improvements located on the related Mortgaged Property, and if
applicable, 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 securing any Mortgage Loan 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 the
related Mortgage Property. All other insurance required under the
Mortgage for such Mortgage Loan is in full force and effect with
respect to the related Mortgaged Property.
(xiv) 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 condition or
circumstance affecting such Mortgaged Property that was not disclosed
in the related report(s). The Seller has not taken any action with
respect to such Mortgage Loan or the related Mortgaged Property that
could subject the Purchaser, or its successors and assigns in respect
of the Mortgage Loan, to any liability under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") or any other applicable federal, state or local
environmental law, and the Seller has not received any actual notice of
a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property
that was not disclosed in the related report.
(xv) Such Mortgage Loan is not cross-collateralized with a
mortgage loan outside the Mortgage Pool.
(xvi) The terms of the Mortgage and the Mortgage Note for such
Mortgage Loan have not been impaired, waived, altered or modified in
any material respect, except as specifically set forth in the related
Mortgage File.
(xvii) There are no delinquent taxes, ground rents, water
charges, sewer rents, insurance premiums, assessments or other similar
outstanding charges affecting the related Mortgaged Property.
(xviii) Except in the case of Mortgage Loans as to which the
interest of the related mortgagor in the related Mortgaged Property is
a leasehold estate, the interest of the related mortgagor in each
related Mortgaged Property consists of a fee simple estate in real
property.
(xix) Such Mortgage Loan is a whole loan and not a
participation interest.
(xx) 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 assignee,
and the assignment of the related assignment of
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leases, if any, referred to in clause (v) of Exhibit B constitutes the
legal, valid and binding assignment thereof from the relevant assignor
to the Trustee.
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan that
were required to be delivered to the mortgagee under the terms of the
related loan documents, have been received and, to the extent of any
remaining balances thereof are in the possession, or under the control,
of the Seller or its agents (which shall include the Master Servicer).
(xxii) 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.
(xxiii) 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 lies 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); no improvements on adjoining
properties materially encroach upon such Mortgaged Property to any
material extent; and no improvement located on or forming part of such
Mortgaged Property is in material violation of any applicable zoning
laws or ordinances (except to the extent that they may constitute legal
non-conforming uses).
(xxiv) 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) There is no material default, breach or event of
acceleration existing under the related Mortgage or Mortgage Note, and
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 by any other representation and
warranty made by the Seller in any of paragraphs (iv), (xiv), (xvii),
(xxi), (xxiii) and (xxix) of this Exhibit C.
(xxvi) If the Mortgage Loan is an ARM Loan, all of the terms
of the related Mortgage Note pertaining to interest rate adjustments,
payment adjustments and adjustments of the principal balance are
enforceable, such adjustments will not affect the priority of the
mortgage lien, 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) The Mortgage Loan does not contain any equity
participation by the lender or provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property.
(xxviii) 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) To the Seller's knowledge, based on due diligence
customarily performed in the origination of comparable mortgage loans,
as of the date of origination of the Mortgage Loan, (A) the related
mortgagor 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
(B) all such licenses, permits and authorizations were valid and in
full force and effect.
(xxx) The servicing and collection practices used with respect
to the Mortgage Loans have been in all material respects legal and
prudent and have met customary standards utilized by prudent
institutional commercial and multifamily mortgage loan servicers.
(xxxi) 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
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adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be
provided thereby.
(xxxii) The provisions of the related Mortgage provide 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 mortgagee.
(xxxiii) The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the noncontingent
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) Any Mortgage Loan that was "significantly modified"
prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code 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) To the Seller's actual knowledge, there are no pending
or threatened actions, suits or proceedings by or before any court or
governmental authority against or affecting the Mortgagor under any
Mortgage Loan 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.
(xxxvi) If such Mortgage Loan is secured in whole or in part
by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (or portion thereof) (a "GROUND LEASE"), but not by
the related fee interest in such Mortgaged Property (or portion
thereof) (the "FEE INTEREST"):
(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 permits the interest
of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material
change in the terms of such Ground Lease since its
recordation, with the exception of written
instruments which are a part of the related Mortgage
File;
(B) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with,
the related Mortgage, other than the 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,
except with respect to one Mortgage Loan, with
respect to which any further assignment requires the
consent of the lessor, but which consent cannot be
unreasonably withheld;
(D) At the Closing Date, such Ground Lease is in full
force and effect and no default has occurred under
such Ground Lease, nor to the actual knowledge of the
Seller, is there any existing condition which, but
for the
-5-
passage of time or the giving of notice, or both,
would result in a default under the terms of such
Ground Lease;
(E) Such Ground Lease requires the lessor thereunder 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 received by the
mortgagee from the lessor, 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 in the manner
described in such Ground Lease;
(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 (10) 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, with any
excess proceeds available for application at the
option of the mortgagee; and
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender;
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 lessee in the
relevant portion of the Mortgaged Property subject to
such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security
provided by the related Mortgage.
(xxxvii) 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.
(xxxviii) Except as described in the next sentence, the
related Mortgage Note or Mortgage does not require the mortgagee to
release all or any portion of the related Mortgaged Property from the
lien of the related Mortgage except upon payment in full of all amounts
due under such Mortgage Loan. The Mortgages relating to the Mortgage
Loans secured by properties described as 000 Xxxxxxxxxx Xxxxx and Tech
Center in the Mortgage Loan Schedule require the mortgagee to grant
releases of portions of the related Mortgaged Properties upon the
payment of a specified release price.
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, the Trustee and/or the Interim Custodian and
shall inure to the benefit of the Purchaser, and its successors and assigns
(including without limitation the Trustee and the holders of the Certificates)
notwithstanding any restrictive or qualified endorsement or assignment.
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
CERTIFICATE OF OFFICER OF ING (U.S.) CAPITAL CORPORATION ("ING CAPITAL")
I, _________________, a __________ of ING Capital (the "Seller"),
hereby certify as follows:
The Seller is a Corporation duly organized and validly existing under
the laws of the State of Delaware.
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 October 30, 1996
(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.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
July 10, 1996.
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 are such officer's genuine
signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
__________, 1996.
By:_________________________________
Name:
Title:
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF ING (U.S) CAPITAL CORPORATION
In connection with the execution and delivery by ING (U.S.) Capital
Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
October 30, 1996 (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 7th day of November, 1996.
ING (U.S.) CAPITAL CORPORATION
By:______________________________________
Name:
Title:
EXHIBIT D-3
FORM OF OPINION OF COUNSEL TO THE SELLER
November 7, 1996
GMAC Commercial Mortgage Securities, Inc.
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Mortgage Loan Purchase Agreement, dated as of October 30, 0000,
xxxxxxx Xxxxxxxxxxxxxx Xxxxxxxxxxx (X.X.) Capital Corporation
(known as ING (U.S.) Capital Corporation as of November 1,
1996) and GMAC Commercial Mortgage Securities, Inc.
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as counsel of
ING (U.S.) Capital Corporation (the "Seller"), pursuant to Section 8(e) of the
Mortgage Loan Purchase Agreement, dated as of October 30, 1996 (the "Purchase
Agreement"), between GMAC Commercial Mortgage Securities, Inc. (the "Purchaser")
and the Seller, relating to the sale by the Seller of certain mortgage loans
(the "Mortgage Loans"). Capitalized terms not otherwise defined herein have the
meanings set assigned to them in the Purchase Agreement.
I (or attorneys under my supervision) have examined originals or
copies, certified or otherwise identified to my satisfaction, of such corporate
records of the Seller, certificates of public officials, officers of the Seller
and other persons and other documents, agreements and instruments and have made
such other investigations as I have deemed necessary or appropriate for purposes
of this opinion.
Based upon the foregoing, I am of the opinion that:
1. The Seller is a Corporation validly existing under the laws of
the State of Delaware, with full power authority under such
laws to own its properties and assets and to conduct its
business as contemplated in the Purchase Agreement and to
enter into and perform its obligations under the Purchase
Agreement.
2. The Purchase Agreement has been duly authorized, executed and
delivered by the Seller and, upon due authorization, execution
and delivery by the Purchaser, will constitute a valid, legal
and binding agreement of the Seller, enforceable against the
Seller in accordance with its 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, (b) general principles of equity, whether
enforcement is sought in a proceeding in equity or at
law, and (c) public policy considerations underlying the
securities laws, to the extent such public policy
considerations limit the enforceability of the provisions of
such agreement that purport to provide indemnification from
securities law liabilities.
3. No consent, approval, authorization or order of any court,
governmental agency or body is required in connection with the
execution and delivery by the Seller of the Purchase
Agreement, except for those consents, approvals,
authorizations or orders that previously have been obtained.
4. The transfer of the Mortgage Loans as provided in the Purchase
Agreement and the fulfillment of the terms of the Purchase
Agreement will not conflict with or result in a violation of
the Certificate of Incorporation or the By-Laws of the Seller
or any agreement or instrument, order, writ, judgment or
decree known to us to which the Seller is a party or is
subject.
5. To the best of our knowledge, there are no actions or
proceedings against the Seller, pending (with regard to which
the Seller has received service of process) or overtly
threatened in writing before any court, governmental agency or
arbitrator which affect the enforceability of the Purchase
Agreement, or which would draw into question the validity of
the Purchase Agreement or any action taken or to be taken in
connection with the Seller's obligations contemplated therein,
or which would materially impair the Seller's ability to
perform under the terms of the Purchase Agreement.
6. Nothing has come to our attention that would lead us to
believe that, insofar as it relates to the characteristics of
the Mortgage Loans, the real properties that secure such or
the related borrowers or relates to the description of the
Seller, the Prospectus (other than any accounting, financial
or statistical information included therein, as to which no
opinion is expressed), at the date of the Prospectus
Supplement or at the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
The opinions expressed herein are limited to the laws of the State of
Delaware, the State of New York and the federal law of the United States.
This opinion is given to you for your sole benefit, and no other person
or entity is entitled to rely hereon without our express written consent.
Very truly yours,
