Exhibit 99.2
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of August 21, 1998, between German American Capital Corporation as
seller (the "Seller") and GMAC Commercial Mortgage Securities, Inc. as purchaser
(the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as EXHIBIT A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard
& Poor's Ratings Services, Xxxxx'x Investors Service, Inc. and FITCH IBCA Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust Fund will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of August 1, 1998 (the "Pooling and Servicing Agreement"), among the
Purchaser as depositor, GMAC Commercial Mortgage Corporation as master servicer
(in such capacity, the "Master Servicer") and special servicer (in such
capacity, the "Special Servicer"), LaSalle National Bank as trustee (in such
capacity, the "Trustee") and ABN AMRO Bank N.V. as fiscal agent. Capitalized
terms not otherwise defined herein have the meanings assigned to them in the
Pooling and Servicing Agreement as in effect on the Closing Date.
The Purchaser intends to sell certain of the Certificates to Xxxxxx
Brothers Inc. and Deutsche Bank Securities Inc. (together, the "Underwriters")
pursuant to an underwriting agreement dated the date hereof (the "Underwriting
Agreement"). The Purchaser intends to sell the remaining Certificates (the
"Non-Registered Certificates") to Xxxxxx Brothers Inc. (the "Initial
Purchaser"), pursuant to a certificate purchase agreement dated the date hereof
(the "Certificate Purchase Agreement").
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. AGREEMENT TO PURCHASE.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on August 27, 1998 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The "Cut-off Date" with respect to any Mortgage Loan is the
Due Date for such Mortgage Loan in August 1998. As of the close of business on
their respective Cut-off Dates, the Mortgage Loans will have an aggregate
principal balance (the "Aggregate Cut-off Date Balance"), after application of
all payments of principal due thereon on or before such date, whether or not
received, of $53,016,804, subject to a variance of plus or minus 5%. The
purchase price for the Mortgage Loans shall be determined and paid to the Seller
in accordance with a term sheet (the "Allocation Agreement") that has been
agreed to by the Mortgage Loan Sellers and the Purchaser.
SECTION 2. CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, subject only to receipt by the
Seller of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdback for transaction expenses in accordance with the Allocation
Agreement), the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including all interest and principal received or
receivable by the Seller on or with respect to the Mortgage Loans after the
Cut-off Date for such Mortgage Loan, together with all of the Seller's right,
title and interest in and to the proceeds of any related title, hazard, or other
insurance policies and any escrow, reserve or other comparable accounts related
to the Mortgage Loans. The Purchaser shall be entitled to (and, to the extent
received by or on behalf of the Seller, the Seller shall deliver or cause to be
delivered to or at the direction of the Purchaser) all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date for each
such Mortgage Loan, and all other recoveries of principal and interest collected
thereon after such Cut-off Date. All scheduled payments of principal and
interest due thereon on or before the Cut-off Date for each Mortgage Loan and
collected after such Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller hereby agrees that, at least five (5) Business Days before the
Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on EXHIBIT B hereto) for each Mortgage Loan so
assigned to the extent that such Mortgage File was delivered to the Seller. On
the Closing Date, upon notification from the Seller that the purchase price
referred to in Section 1 (exclusive of any applicable holdback for transaction
expenses in accordance with the Allocation Agreement) has been received by the
Seller, the Trustee shall be authorized to release to the Purchaser or its
designee all of the Mortgage Files in the Trustee's possession relating to the
Mortgage Loans.
(c) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with EXHIBIT B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together
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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.
(d) The Seller's records will reflect the transfer of the Mortgage Loans
to the Purchaser as a sale.
SECTION 3. EXAMINATION OF MORTGAGE LOAN FILES AND DUE DILIGENCE REVIEW.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files 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) RESERVED.
(b) The Seller, as of the date hereof, hereby represents and warrants to,
and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Maryland, and
is in compliance with the laws of each State to the extent necessary to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller,
and the performance and compliance with the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
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(iii) The Seller has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law, and (C) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Seller's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Seller to perform
its obligations under this Agreement or the financial condition of the
Seller.
(vi) No litigation is pending with regard to which Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller the outcome of which, in the Seller's good
faith and reasonable judgment, could reasonably be expected to prohibit the
Seller from entering into this Agreement or materially and adversely affect
the ability of the Seller to perform its obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchaser, and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans by the Seller to the Purchaser or the consummation of any of the
other transactions contemplated hereby.
(viii) Neither the Seller 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
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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) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law (including, with respect to
any bulk sale laws), for the execution, delivery and performance of or
compliance by the Seller with this Agreement, or the consummation by the
Seller of any transaction contemplated hereby, other than (1) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with Seller's sale of the
Mortgage Loans to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as have
been obtained or made and (3) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not have
a material adverse effect on the performance by the Seller under this
Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser, 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.
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(iii) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Purchaser's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Purchaser to
perform its obligations under this Agreement or the financial condition of
the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters, the
Initial Purchaser and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the transactions contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution, delivery
and performance of or compliance by the Purchaser with this Agreement, or
the consummation by the Purchaser of any transaction contemplated hereby,
other than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Purchaser under this Agreement.
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(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. RESERVED.
SECTION 7. CLOSING.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Xxxxx, Xxxxx & Xxxxx, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
specified herein shall be true and correct as of the Closing Date, and the
Aggregate Cut-off Date Balance shall be within the range permitted by
Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee,
the Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied
with, and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date; and
(vi) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
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SECTION 8. CLOSING DOCUMENTS.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) An Officer's Certificate substantially in the form of Exhibit C-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter and
each Initial Purchaser 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 Maryland, dated not earlier than 30 days prior to the
Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit C-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser and each Underwriter
and each Initial Purchaser may rely;
(e) A written opinion of counsel for the Seller, substantially in the form
of Exhibit C-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 and each Initial Purchaser;
(f) The Supplemental Agreement, substantially in the form of Exhibit D
hereto, dated as of August 21, 1998, between GMAC Commercial Mortgage
Corporation ("GMACCM") and the Seller, duly executed and delivered by GMACCM
and the Seller;
(g) The Assignment Agreement, substantially in the form of Exhibit E
hereto, dated August 21, 1998, between the Seller and the Purchaser, duly
executed and delivered by the Seller and the Purchaser; and
(h) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION 9. RESERVED.
SECTION 10. RESERVED.
SECTION 11. NOTICES.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by
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overnight mail or courier service, or transmitted by facsimile and confirmed by
a similar mailed writing, if to the Purchaser, addressed to GMAC Commercial
Mortgage Securities, Inc. at 000 Xxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxx,
Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance Manager, facsimile no.
(000) 000-0000, with a copy to the General Counsel, GMAC Commercial Mortgage
Corporation, or such other address or facsimile number as may hereafter be
furnished to the Seller in writing by the Purchaser; and if to the Seller,
addressed to German American Capital Corporation, at 00 X. 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, facsimile no. (000) 000-0000,
or to such other address or facsimile number as the Seller may designate in
writing to the Purchaser.
SECTION 12. RESERVED.
SECTION 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
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 BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF
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THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES EXCEPT THAT
THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. FURTHER ASSURANCES.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 18. SUCCESSORS AND ASSIGNS.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns.
SECTION 19. AMENDMENTS.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
GMAC COMMERCIAL MORTGAGE SECURITIES,
INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall collectively consist of the
following documents:
(i) the original Mortgage Note, endorsed by the most
recent endorsee prior to the Trustee or, if none,
by the originator, without recourse, either in
blank or to the order of the Trustee in the
following form: "Pay to the order of LaSalle
National Bank, as trustee for the registered
holders of GMAC Commercial Mortgage Securities,
Inc., Mortgage Pass-Through Certificates, Series
1998-C2, without recourse";
(ii) the original or a copy of the Mortgage and, if
applicable, the originals or copies of any
intervening assignments thereof showing a complete
chain of assignment from the originator of the
Mortgage Loan to the most recent assignee of
record thereof prior to the Trustee, if any, in
each case with evidence of recording indicated
thereon;
(iii) an original assignment of the Mortgage, in
recordable form, executed by the most recent
assignee of record thereof prior to the Trustee
or, if none, by the originator, either in blank or
in favor of the Trustee (in such capacity);
(iv) the original or a copy of any related Assignment
of Leases (if such item is a document separate
from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments
thereof showing a complete chain of assignment
from the originator of the Mortgage Loan to the
most recent assignee of record thereof prior to
the Trustee, if any, in each case with evidence of
recording thereon;
(v) an original assignment of any related Assignment
of Leases (if such item is a document separate
from the Mortgage), in recordable form, executed
by the most recent assignee of record thereof
prior to the Trustee or, if none, by the
originator, either in blank or in favor of the
Trustee (in such capacity), which assignment may
be included as part of the corresponding
assignment of Mortgage referred to in clause (iii)
above;
B-1
(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 together with (A) if applicable, the original
or copies of any intervening assignments of such
guaranty showing a complete chain of assignment
from the originator of the Mortgage Loan to the
most recent assignee thereof prior to the Trustee,
if any, and (B) an original assignment of such
guaranty executed by the most recent assignee
thereof prior to the Trustee or, if none, by the
originator;
(xi) (A) file or certified copies of any UCC financing
statements and continuation statements which were
filed in order to perfect (and maintain the
perfection of) any security interest held by the
originator of the Mortgage Loan (and each assignee
of record prior to the Trustee) in and to the
personalty of the mortgagor at the Mortgaged
Property (in each case with evidence of filing
thereon) and which
B-2
were in the possession of the Seller (or its
agent) at the time the Mortgage Files were
delivered to the Trustee and (B) if any such
security interest is perfected and the earlier UCC
financing statements and continuation statements
were in the possession of the Seller, a UCC
financing statement executed by the most recent
assignee of record prior to the Trustee or, if
none, by the originator, evidencing the transfer
of such security interest, either in blank or in
favor of the Trustee;
(xii) the original or a copy of the power of attorney
(with evidence of recording thereon, if
appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or
instrument referred to above was signed on behalf
of the Mortgagor; and
(xiii) if the Mortgagor has a leasehold interest in the
related Mortgaged Property, the original ground
lease or a copy thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
B-3
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
CERTIFICATE OF OFFICER OF GERMAN AMERICAN CAPITAL CORPORATION ("GACC")
I, _________________, a _________________ of GACC (the "Seller"), hereby
certify as follows:
The Seller is a corporation duly organized and validly existing under the
laws of the State of Maryland.
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 August 21, 1998 (the
"Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
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IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August _ __, 1998.
By:
-------------------------------
Name:
Title:
I, [name], [title], hereby certify that ________________ is a duly elected
or appointed, as the case may be, qualified and acting ______________ of the
Seller and that the signatures appearing above is his or her genuine signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August _ __, 1998.
By:
-------------------------------
Name:
Title:
C-2
EXHIBIT C-2
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF GERMAN AMERICAN CAPITAL CORPORATION
In connection with the execution and delivery by German American Capital
Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
August 21, 1998 (the "Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. and the Seller, the Seller 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 ___th day of August, 1998.
GERMAN AMERICAN CAPITAL CORPORATION
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
C-3
EXHIBIT C-3
FORM OF OPINION I OF COUNSEL TO THE SELLER
August [__], 1998
GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
Xxxxxx Brothers Inc.
Deutsche Bank Securities Inc.
Fitch IBCA Inc.
Xxxxx'x Investors Service, Inc.
Standard & Poor's Ratings Service
LaSalle National Bank
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1998-C2
--------------------------------------------------
Ladies and Gentlemen:
I am General Counsel to German American Capital Corporation (the "Seller").
In that capacity, I am familiar with the issuance of certain Mortgage
Pass-Through Certificates, Series 1998-C2 (the "Certificates"), evidencing
undivided interests in a trust fund (the "Trust Fund") consisting primarily of
certain mortgage loans (the "Mortgage Loans"), pursuant to a Pooling and
Servicing Agreement, dated as of August 1, 1998 (the "Pooling and Servicing
Agreement"), among GMAC Commercial Mortgage Securities, Inc. as depositor (the
"Depositor"), GMAC Commercial Mortgage Corporation ("GMACCM") as master servicer
and special servicer, LaSalle National Bank as trustee (the "Trustee") and ABN
AMRO Bank N.V. as fiscal agent.
Certain of the Mortgage Loans were purchased by the Depositor from German
American Capital Corporation ("GACC"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of August 21, 1998
(the "GACC Mortgage Loan Purchase Agreement"), between the Depositor and GACC.
Certain of the Mortgage Loans were purchased by
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the Depositor from the GMACCM, pursuant to, and for the consideration described
in, the Mortgage Loan Purchase Agreement, dated as of August 21, 1998 (the
"GMACCM Mortgage Loan Purchase Agreement"), between the Depositor and GMACCM.
Certain of the Mortgage Loans were purchased by the Depositor from Xxxxxx
Brothers Holdings, Inc. ("LB Holdings"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of August 21, 1998
(the "LB Holdings Mortgage Loan Purchase Agreement") between the Depositor and
LB Holdings. Certain of the Mortgage Loans were purchased by the Depositor from
the Structured Asset Certificates With Enhanced Returns, Series 1998-ML Trust
("ML Trust") pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of August 21, 1998 (the "ML Trust Mortgage
Loan Purchase Agreement") between the Depositor and the ML Trust. The GACC
Mortgage Loan Purchase Agreement is referred to herein as the "Agreement."
The Depositor has sold the Class X, Class X-0, Xxxxx X-0, Class B, Class C,
Class D and Class E Certificates (collectively, the "Publicly Offered
Certificates") to the underwriters pursuant to the Underwriting Agreement, dated
as of August 21, 1998 (the "Underwriting Agreement"), among the Depositor,
GMACCM and the underwriters named therein and sold the Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class R-I, Class R-II and Class
R-III Certificates (collectively, the "Privately Offered Certificates") to
Xxxxxx Brothers Inc. as initial purchaser pursuant to the Certificate Purchase
Agreement, dated as of August 21, 1998 (the "Certificate Purchase Agreement"),
among the Depositor, GMACCM and the initial purchaser.
In connection with the transactions described above, the Seller and GMACCM
have entered into a Supplemental Agreement, dated as of August 21, 1998 (the
"Supplemental Agreement") and an Indemnification Agreement (the "Indemnification
Agreement"), dated August 21, 1998, in order to facilitate such transactions and
in contemplation of the assignment by the Purchaser to the Depositor of all of
its right, title and interest in and to the GACC Mortgage Loan Purchase
Agreement. The GACC Mortgage Loan Purchase Agreement, the Supplemental
Agreement and the Indemnification Agreement are referred to herein as the
"Agreements." Capitalized terms not defined herein have the meanings set forth
in the Pooling and Servicing Agreement and the Agreement. This opinion is
rendered pursuant to Section 8(e) of the GACC Trust Mortgage Loan Purchase
Agreement.
In connection with rendering this opinion letter, I have examined or have
caused persons under my supervision to examine the Agreements and such other
records and other documents as I have deemed necessary. I have further assumed
that there is not and will not be any other agreement that materially
supplements or otherwise modifies the agreements expressed in the Agreements.
As to matters of fact, I have examined and relied upon representations of
parties contained in the Agreements and, where I have deemed appropriate,
representations and certifications of officers of GMACCM, the Depositor, the
Seller, the Trustee, other transaction participants or public officials. I have
assumed the authenticity of all documents submitted to me as originals, the
genuineness of all signatures other than officers of the Seller and the
conformity to the originals of all documents submitted to me as copies. I have
assumed that all parties, except for
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the Seller, had the corporate power and authority to enter into and perform all
obligations thereunder. As to such parties, I also have assumed the due
authorization by all requisite corporate action, the due execution and delivery
and the enforceability of such documents. I have further assumed the conformity
of the Mortgage Loans and related documents to the requirements of the
Agreements.
In rendering this opinion letter, I do not express any opinion concerning
any law other than the law of the State of New York, the General Corporation Law
of the State of Delaware and the federal law of the United States, and I do not
express any opinion concerning the application of the "doing business" laws or
the securities laws of any jurisdiction other than the federal securities laws
of the United States. To the extent that any of the matters upon which I am
opining herein are governed by laws ("Other Laws") other than the laws
identified in the preceding sentence, I have assumed with your permission and
without independent verification or investigation as to the reasonableness of
such assumption, that such Other Laws and judicial interpretation thereof do not
vary in any respect material to this opinion from the corresponding laws of the
State of New York and judicial interpretations thereof. I do not express any
opinion on any issue not expressly addressed below.
Based upon the foregoing, I am of the opinion that:
1. The Seller is duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Maryland and has the requisite
power and authority, corporate or other, to own its properties and conduct
its business, as presently conducted by it, and to enter into and perform
its obligations under the Agreements.
2. The Agreements have been duly and validly authorized, executed and
delivered by the Seller and, upon due authorization, execution and delivery
by the other parties thereto, will constitute the valid, legal and binding
agreements of the Seller enforceable against the Seller in accordance with
their terms, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the rights of creditors, (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law,
and (iii) public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the enforceability
of the provisions of the Agreements which purport to provide
indemnification with respect to securities law violations.
3. No consent, approval, authorization or order or federal court or
governmental agency or body is required for the consummation by the Seller
of the transactions contemplated by the terms of the Agreements, except for
those consents, approvals, authorizations or orders which previously have
been obtained.
4. Neither the consummation of any of the transactions contemplated by, nor
the fulfillment by the Seller of any other of the terms of, the Agreements,
will result in a material breach of any
C-6
term or provision of the charter or bylaws of the Seller or any state or
federal statute or regulation or conflict with, result in a material
breach, violation or acceleration of or constitute a material default under
the terms of any indenture or other material agreement or instrument to
which the Seller is a party or by which it is bound or any order or
regulation of any state or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Seller.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon without my
prior written consent. Copies of this opinion letter may not be furnished to
any other person or entity, nor may any portion of this opinion letter be
quoted, circulated or referred to in any other document without my prior written
consent.
Very truly yours,
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EXHIBIT D
FORM OF SUPPLEMENTAL AGREEMENT
D-1
EXHIBIT E
FORM OF ASSIGNMENT
E-1
