EXHIBIT 99.1
EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of August 17, 2000 (this
"Agreement"), between GMAC Commercial Mortgage Corporation, a California
corporation ("GMACCM"), and GMAC Commercial Mortgage Securities, Inc., a
Delaware corporation (the "Depositor").
Recitals
WHEREAS, on August 16, 2000, the Federal Home Loan Mortgage Corporation
("FHLMC") issued a Multifamily Mortgage Participation Certificate (including a
security entitlement thereto) with a CUSIP Number of 0000XXXX0 and a final
payment date of May 1, 2010 (the "Mortgage Certificate") representing an
undivided ownership interest in two multifamily mortgage loans originated by
GMACCM;
WHEREAS, the Depositor wishes to purchase the Mortgage Certificate from
GMACCM;
WHEREAS, the Depositor, GMACCM, as master servicer and special servicer,
and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee") and as
securities intermediary (the "Securities Intermediary"), are entering into a
Pooling and Servicing Agreement, dated as of August 1, 2000 (the "Pooling and
Servicing Agreement"), pursuant to which the Mortgage Certificate, the Mortgage
Loans and certain other mortgage assets will be deposited into a trust fund (the
"Trust Fund");
WHEREAS, the Depositor will sell the Mortgage Pass-Through Certificates,
Series 2000-C2, Class X, Class X-0, Xxxxx X-0, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O, Class R-I, Class R-II and Class R-III Certificates, which in aggregate will
evidence the entire beneficial ownership interest in the Trust Fund;
WHEREAS, the Depositor and GMACCM intend that the conveyance by GMACCM to
the Depositor of all its right, title and interest in and to the Mortgage
Certificate pursuant to this Agreement shall constitute a purchase and sale and
not a loan;
NOW THEREFORE, in consideration of the recitals and the mutual promises
herein and other good and valuable consideration, the parties agree as follows:
1. All capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
2. The Cut-off Date with respect to the Mortgage Certificate is August 1,
2000.
3. Concurrently with the execution and delivery hereof, GMACCM hereby
conveys and assigns to the Depositor without recourse all of its right, title
and interest in and to the Mortgage Certificate, all payments and distributions
received or receivable thereunder after the Cut-off Date and all accounts,
general intangibles, chattel paper, instruments, documents, money, deposit
accounts and investment property consisting of, arising from or relating to the
Mortgage Certificate or the Mortgage Certificate Securities Account and all
moneys, instruments, financial assets and other property credited thereto. In
consideration of such assignment, GMACCM will receive from the Depositor in
immediately available funds an amount equal to $89,540,000 (the "Purchase
Price").
In connection with the foregoing conveyance and assignment, GMACCM shall
deliver the Mortgage Certificate by causing FHLMC to deposit the Mortgage
Certificate in the Federal Reserve Bank account of the Securities Intermediary
and by causing the Securities Intermediary to indicate by book entry that the
"security entitlement" (as defined in Article 8 of the New York Uniform
Commercial Code) with respect to the Mortgage Certificate has been credited to a
securities account in the name of the Trustee (the "Securities Account"). The
Trustee shall establish the Securities Account with the Securities Intermediary
who shall accept such security entitlement for credit to the Securities Account.
The Depositor and GMACCM intend that the conveyance by GMACCM to the
Depositor of all its right, title and interest in and to the Mortgage
Certificate pursuant to this Section 3 shall be, and be construed as, a sale of
the Mortgage Certificate by GMACCM to the Depositor. Further, it is not intended
that such conveyance be deemed to be a pledge of the Mortgage Certificate by
GMACCM to the Depositor to secure a debt or other obligation of GMACCM. However,
in the event that the Mortgage Certificate is held to be property of GMACCM, or
if for any reason this Agreement is held or deemed to create a security interest
in the Mortgage Certificate, then it is intended that:
(a) this Agreement shall also be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction;
(b) the conveyance provided for in this Section shall be deemed to be, and
hereby is, a grant by GMACCM to the Depositor of a security interest in all of
GMACCM's right, title and interest, whether now owned or hereafter acquired, in
and to (i) the Mortgage Certificate, (ii) all payments and distributions
received or receivable thereunder, and (iii) all accounts, general intangibles,
chattel paper, instruments, documents, money, deposit accounts, security
entitlements and investment property consisting of, arising from or relating to
the Mortgage Certificate or the Mortgage Certificate Securities Account and all
moneys, instruments, financial assets and other property credited thereto;
(c) the possession by the Securities Intermediary, the Trustee, the
Custodian or any other agent of the Mortgage Certificate or such other items of
property as constitute instruments, money, investment property, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party," or possession by a purchaser or a person designated by such secured
party, for purposes of perfecting the security interest pursuant to the New York
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Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; and
(d) notifications to persons holding such property, and acknowledgements,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgements, receipts or confirmations from,
securities intermediaries, bailees or agents (as applicable) of the Trustee for
the purpose of perfecting such security interest under applicable law.
GMACCM shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Certificate and other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. Without limiting the
generality of the foregoing, GMACCM shall (x) cause the Mortgage Certificate and
security entitlement thereto to be delivered to the Securities Intermediary and
to cause the Securities Intermediary to indicate by book entry that the security
entitlement with respect to the Mortgage Certificate has been credited to the
Securities Account, as set forth above and (y) prepare and deliver to the
Depositor not less than 15 days prior to any filing date, and the Depositor
shall file, or shall cause to be filed, at the expense of GMACCM, all filings
necessary to maintain the effectiveness of any original filings necessary under
the Uniform Commercial Code as in effect in any jurisdiction to perfect the
Depositor's security interest in or lien on the Mortgage Certificate, including
without limitation (A) continuation statements and (B) such other statements as
may be occasioned by (1) any change of name of GMACCM or the Depositor, (2) any
change of location of the place of business or the chief executive office of
GMACCM or (3) any transfer of any interest of GMACCM in the Mortgage
Certificate.
(e) GMACCM's records will reflect the transfer of the Mortgage Certificate
to the Depositor as a sale.
4. GMACCM, as of the date hereof, hereby represents and warrants to, and
covenants with, the Depositor that:
(a) GMACCM is a corporation, duly organized, validly existing and in good
standing under the laws of the State of California.
(b) The execution and delivery of this Agreement by GMACCM, and the
performance and compliance with the terms of this Agreement by GMACCM, will not
violate GMACCM'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 GMACCM to carry out the
transactions contemplated by this Agreement.
(c) GMACCM has the full power and authority to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
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(d) This Agreement, assuming due authorization, execution and delivery by
the Depositor, constitutes a valid, legal and binding obligation of GMACCM,
enforceable against GMACCM in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, (B) general principles
of equity, regardless of whether such enforcement is considered in a proceeding
in equity or at law, and (C) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
(e) GMACCM 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 GMACCM's good faith
and reasonable judgment, is likely to affect materially and adversely either the
ability of GMACCM to perform its obligations under this Agreement or the
financial condition of GMACCM.
(f) No litigation is pending with regard to which GMACCM has received
service of process or, to the best of GMACCM's knowledge, threatened against
GMACCM the outcome of which, in GMACCM's good faith and reasonable judgment,
could reasonably be expected to prohibit GMACCM from entering into this
Agreement or materially and adversely affect the ability of GMACCM to perform
its obligations under this Agreement.
(g) GMACCM has not dealt with any broker, investment banker, agent or
other person, other than the Depositor, 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 Certificate or the
consummation of any of the other transactions contemplated hereby.
(h) 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 GMACCM with this
Agreement, or the consummation by GMACCM 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 GMACCM's
sale of the Mortgage Certificate to the Depositor, (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 GMACCM under this Agreement.
(i) GMACCM is the true and lawful owner of the Mortgage Certificate; title
to the Mortgage Certificate, upon payment of the Purchase Price therefor, will
on the date hereof be free and clear of all claims, liens, security interests
and encumbrances of any nature whatsoever; and it has not assigned any interest
in the Mortgage Certificate or any distributions
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thereon, except as contemplated herein; and it will defend such title forever
against any and all persons.
(j) Each of the mortgage loans underlying the Mortgage Certificate is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Internal
Revenue Code of 1986, as amended.
5. The Depositor, as of the date hereof, hereby represents and warrants
to, and covenants with, GMACCM that:
(a) The Depositor is a corporation duly organized, validly existing and in
good standing under the laws of State of Delaware.
(b) The execution and delivery of this Agreement by the Depositor, and the
performance and compliance with the terms of this Agreement by the Depositor,
will not violate the Depositor'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.
(c) The Depositor 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.
(d) This Agreement, assuming due authorization, execution and delivery by
GMACCM, constitutes a valid, legal and binding obligation of the Depositor,
enforceable against the Depositor 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.
(e) The Depositor 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
Depositor's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(f) No litigation is pending or, to the best of the Depositor's knowledge,
threatened against the Depositor which would prohibit the Depositor from
entering into this Agreement or, in the Depositor's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(g) The Depositor has not dealt with any broker, investment banker, agent
or other person, other than GMACCM, the Underwriters, the Initial Purchaser and
their respective
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affiliates, that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Certificate or the consummation of any of the
transactions contemplated hereby.
(h) 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 Depositor with this Agreement, or the consummation by the
Depositor 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 Depositor under this
Agreement.
6. The closing of the sale of the Mortgage Certificate (the "Closing")
shall be held at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the
Closing Date.
(a) The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of GMACCM
specified herein shall be true and correct as of the Closing Date;
(ii) All documents specified in Section 7 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Depositor, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) GMACCM shall have caused the Mortgage Certificate
(including a security entitlement thereto) to be transferred and assigned
to the Securities Intermediary pursuant to Section 3 hereof;
(iv) 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 GMACCM 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;
(v) GMACCM shall have paid or agreed to pay all fees,
costs and expenses payable by it to the Depositor pursuant to this
Agreement; and
(vi) Neither the Underwriting Agreement nor the
Certificate Purchase Agreement shall have been terminated in accordance
with its terms.
(b) Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Depositor to
purchase the Mortgage Certificate on the Closing Date.
7. The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Depositor and GMACCM;
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(b) An Officer's Certificate substantially in the form of Exhibit A
hereto, executed by the secretary or an assistant secretary of GMACCM, and dated
the Closing Date, and upon which the Depositor and each Underwriter may rely,
attaching thereto as exhibits the organizational documents of GMACCM;
(c) A certificate of good standing regarding GMACCM from the Secretary of
State for the State of California, dated not earlier than 30 days prior to the
Closing Date; and
(e) Such further certificates, opinions and documents as the Depositor may
reasonably request.
8. 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 GMACCM, addressed to GMAC Commercial Mortgage Corporation at 000 Xxxxxx
Xxxx, 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 Depositor in writing by GMACCM; and if to the
Depositor, addressed to GMAC Commercial Mortgage Corporation at 000 Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance Manager,
facsimile no. (000) 000-0000, with a copy to the General Counsel, GMAC
Commercial Mortgage Securities, Inc., or such other address or facsimile number
as may hereafter be furnished to GMACCM.
9. The invalidity or unenforceability of any one or more phrases,
sentences, paragraphs or Sections in this Agreement shall not affect the
validity or enforceability of the remaining portions of this Agreement or any
part thereof.
10. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their successors and assigns and the
controlling persons referred to herein, and no other person shall have any right
or obligation hereunder. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be considered
an original, and all such counterparts shall constitute one and the same
instrument. Any person into which GMACCM may be merged, consolidated or
converted, or any corporation resulting from any merger or consolidation to
which GMACCM shall be a party, or any person succeeding to the business of
GMACCM, shall be the successor of GMACCM, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be duly executed by their respective officers hereunto
duly authorized, this 8th day of August, 2000.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
Acknowledged and agreed as to Section 3:
XXXXX FARGO BANK MINNESOTA, N.A.,
as Securities Intermediary
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Vice President
EXHIBIT A
FORM OF CERTIFICATE OF AN OFFICER OF GMACCM
Certificate of Officer of GMAC Commercial Mortgage Corporation ("GMACCM")
I, __________________ , a ___________________of GMACCM, hereby certify
as follows:
GMACCM is a corporation duly organized and validly existing under the
laws of the State of California.
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of GMACCM, 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 GMACCM are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of GMACCM and his genuine signature is set forth
opposite his name:
Name Office Signature
---- ------ ---------
Xxxxx Xxxxxxx Vice President
Each person listed above who signed, either manually or by facsimile
signature, the Assignment and Assumption Agreement, dated as of August 17, 2000
(the "Assignment and Assumption Agreement"), between the GMACCM and GMAC
Commercial Mortgage Securities, Inc. providing for the purchase by GMAC
Commercial Mortgage Securities, Inc. from GMACCM of the Mortgage Certificate,
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 Assignment and Assumption Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August ____, 2000.
By:
--------------------------
Name:
Title:
I, [name], [title], hereby certify that is a duly elected or appointed,
as the case may be, qualified and acting of GMACCM and that the signature
appearing above is [his] genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August _____, 2000.
By:
--------------------------
Name:
Title:
A-2
