Execution Copy
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of December 17, 1997, 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 Xxxxx'x
Investor's Services, Inc. and Duff & Xxxxxx Credit Rating Co. (together, the
"Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be registered under the Securities Act of 1933, as amended
(the "Securities Act"). The Trust Fund will be created and the Certificates will
be issued pursuant to a pooling and servicing agreement to be dated as of
December 1, 1997 (the "Pooling and Servicing Agreement"), among the Purchaser as
depositor, GMAC Commercial Mortgage Corporation as master servicer (in such
capacity, the "Master Servicer") and special servicer (in such capacity, the
"Special Servicer"), and State Street Bank and Trust Company as trustee (in such
capacity, the "Trustee"). Capitalized terms not otherwise defined herein have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell certain of the Certificates to Xxxxxxx, Sachs
& Co., Deutsche Xxxxxx Xxxxxxxx Inc. and Residential Funding Securities Corp.
(together, the "Underwriters") pursuant to an underwriting agreement dated the
date hereof (the "Underwriting Agreement"). The Purchaser intends to sell the
remaining Certificates (the "Non-Registered Certificates") to Xxxxxxx, Sachs &
Co. and Deutsche Xxxxxx Xxxxxxxx Inc. (the "Initial Purchasers), pursuant to a
certificate purchase agreement dated the date hereof (the "Certificate Purchase
Agreement").
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
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SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on December 17, 1997 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on December 17, 1997 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$310,342,419, subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loans shall be determined and paid to the Seller in accordance with
the terms of an allocation agreement dated the date hereof (the "Allocation
Agreement"), to which the Seller and Purchaser, among others, are parties.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdback for transaction expenses in accordance with the Allocation
Agreement), the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including all interest and principal received or
receivable by the Seller on or with respect to the Mortgage Loans after the
Cut-off Date, together with all of the Seller's right, title and interest in and
to the proceeds of any related title, hazard, or other insurance policies and
any escrow, reserve or other comparable accounts related to the Mortgage Loans.
The Purchaser shall be entitled to (and, to the extent received by or on behalf
of the Seller, the Seller shall deliver or cause to be delivered to or at the
direction of the Purchaser) all scheduled payments of principal and interest due
on the Mortgage Loans after the Cut-off Date, and all other recoveries of
principal and interest collected thereon after the Cut-off Date. All scheduled
payments of principal and interest due thereon on or before the Cut-off Date and
collected after the Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller hereby agrees that, at least five (5) Business Days before the
Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B hereto) for each Mortgage Loan so
assigned. It is further acknowledged and agreed by the Seller that the Purchaser
intends to cause the Trustee to perform a limited review of such Mortgage Files
to enable the Trustee to confirm to the Purchaser on or before the Closing Date
that the Mortgage Note referred to in clause (i) of Exhibit B has been delivered
by the Seller with respect to each such Mortgage File. In the event Seller fails
to so deliver each such Mortgage File to the Trustee, the Purchaser and its
successors and assigns shall be entitled to pursue any rights or remedies in
respect of such failure as may be available under applicable law. If the Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, the original
or a copy of any of the documents
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and/or instruments referred to in clauses (ii), (iv), (viii), (xi)(A) and (xii)
of Exhibit B, with evidence of recording thereon, solely because of a delay
caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, or because such
original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 2(b) shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Trustee, and
either the original of such missing document or instrument, or a copy thereof,
with evidence of recording or filing, as the case may be, thereon, is delivered
to or at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee) within 180 days of the
Closing Date (or within such longer period after the Closing Date as the
Purchaser (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Purchaser (or such
subsequent owner) with evidence of such recording or filing, as the case may be,
or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no less often than quarterly, in
good faith attempting to obtain from the appropriate county recorder's or filing
office such original or copy). If the Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred to in clause (ix) of Exhibit B solely
because such policy has not yet been issued, the delivery requirements of this
Section 2(b) shall be deemed to be satisfied as to such missing item, and such
missing item shall be deemed to have been included in the related Mortgage File,
provided that the Seller has delivered to the Trustee a commitment for title
insurance "marked-up" at the closing of such Mortgage Loan, and the Seller shall
deliver to or at the direction of the Purchaser (or any subsequent owner of the
affected Mortgage Loan, including without limitation the Trustee), promptly
following the receipt thereof, the original related lender's title insurance
policy (or a copy thereof). In addition, notwithstanding anything to the
contrary contained herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. On the Closing Date, upon
notification from the Seller that the purchase price referred to in Section 1
(exclusive of any applicable holdback for transaction expenses in accordance
with the Allocation Agreement) has been received by the Seller, the Trustee
shall be authorized to release to the Purchaser or its designee all of the
Mortgage Files in the Trustee's possession relating to the Mortgage Loans.
(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
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(v) of Exhibit B and each UCC-2 and UCC-3, if any, referred to in clause (xi)(B)
of Exhibit B; provided that the Seller shall not be responsible for actually
recording or filing any such document or instrument. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Seller shall promptly prepare or cause the
preparation of a substitute therefor or cure or cause the curing of such defect,
as the case may be, and shall thereafter deliver the substitute or corrected
document to or at the direction of the Purchaser (or any subsequent owner of the
affected Mortgage Loan, including without limitation the Trustee) for recording
or filing, as appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession of
the Seller (or under its control) with respect to the Mortgage Loans, shall
(unless they are held by a sub-servicer that shall, as of the Closing Date,
begin acting on behalf of the Master Servicer pursuant to a written agreement
between such parties) be delivered by the Seller (or its agent) to the Purchaser
(or its designee) no later than the Closing Date. If a sub-servicer shall, as of
the Closing Date, begin acting on behalf of the Master Servicer with respect to
any Mortgage Loan pursuant to a written agreement between such parties, the
Seller shall deliver a copy of the related Servicing File to the Master
Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the 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.
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(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing and
in good standing under the laws of the State of Maryland, and is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance and compliance with the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law, and (C) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
(v) The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in
the Seller's good faith and reasonable judgment, is likely to affect
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
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of which, in the Seller's good faith and reasonable judgment, could
reasonably be expected to prohibit the Seller from entering into this
Agreement or materially and adversely affect the ability of the Seller to
perform its obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchasers, and their respective affiliates, that may be entitled
to any commission or compensation in connection with the sale of the
Mortgage Loans or the consummation of any of the other transactions
contemplated hereby.
(viii) Neither the Seller nor anyone acting on its behalf has (A)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (B) solicited any offer to buy or to accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (D) made any general solicitation by means
of general advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar security, or
(E) taken any other action, that (in the case of any of the acts described
in clauses (A) through (E) above) would constitute or result in a violation
of the Securities Act or any state securities law relating to or in
connection with the issuance of the Certificates or require registration or
qualification pursuant to the Securities Act or any state securities law of
any Certificate not otherwise intended to be a Registered Certificate. In
addition, the Seller will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any of the Certificates or interests therein. For
purposes of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans or
any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information set
forth on pages A-6 through A-8, inclusive, of Annex A to the Prospectus
Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent
consistent therewith, the information set forth on the diskette attached to
the Prospectus Supplement and the accompanying prospectus (the "Diskette"),
is true and correct in all material respects. Insofar as it relates to the
Mortgage Loans and/or the Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set
forth in the Prospectus Supplement and the Memorandum (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
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material fact or (in the case of the Memorandum, when read together with
the other information specified therein as being available for review by
investors) omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(x) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws),
for the execution, delivery and performance of or compliance by the Seller
with this Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) the filing or recording of financing
statements, instruments of assignment and other similar documents necessary
in connection with Seller's sale of the Mortgage Loans to the Purchaser,
(2) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (3)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of State of Delaware.
(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
Purchasers and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the transactions contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, 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. Repurchases.
(a) Within 90 days of the earlier of discovery or receipt of notice by the
Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement) in respect of the
Mortgage File for any Mortgage Loan or a breach of any representation or
warranty made pursuant to Section 4(a) and set forth in Exhibit C, which Defect
or breach, as the case may be, materially and adversely affects the value of any
Mortgage Loan or the interests therein of the Purchaser or its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), the Seller shall cure such Defect or breach, as the case may be,
in all material respects or repurchase the affected Mortgage Loan from the then
owner(s) thereof at the applicable Purchase Price (as defined in the Pooling and
Servicing Agreement) by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s);
provided, however, that in lieu of effecting any such repurchase, the Seller
will be permitted to deliver a Qualifying Substitute Mortgage Loan and to pay a
cash amount equal to the applicable Substitution Shortfall Amount, subject to
the terms and conditions of the Pooling and Servicing Agreement.
If the Seller is notified of a defect in any Mortgage File that corresponds
to information set forth in the Mortgage Loan Schedule, the Seller shall
promptly correct such defect and provide a new, corrected Mortgage Loan Schedule
to the Purchaser, which corrected Mortgage Loan Schedule shall be deemed to
amend and replace the existing Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 6(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) 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 or substitution for a Mortgage
Loan contemplated by this Section 6, the then owner(s) thereof shall tender or
cause to be tendered promptly to the Seller, upon delivery of a receipt executed
by the Seller, the related Mortgage File and Servicing File, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Purchaser or the Trustee shall be endorsed or assigned, as the case may be,
to the Seller in the same manner. The form and sufficiency of all such
instruments and certificates shall be the responsibility of the Seller.
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(d) Except as provided in Section 2(b), this Section 6 provides the sole
remedies available to the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates) respecting
any Defect in a Mortgage File or any breach of any representation or warranty
made pursuant to Section 4(a) and set forth in Exhibit C, or in connection with
the circumstances described in Section 6(b). If the Seller defaults on its
obligations to repurchase any Mortgage Loan in accordance with Section 6(a) or
6(b) or disputes its obligation to repurchase any Mortgage Loan in accordance
with either such subsection, the Purchaser or its successors and assigns may
take such action as is appropriate to enforce such payment or performance,
including, without limitation, the institution and prosecution of appropriate
proceedings. The Seller shall reimburse the Purchaser for all necessary and
reasonable costs and expenses incurred in connection with such enforcement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller specified
herein shall be true and correct as of the Closing Date, and the Aggregate
Cut-off Date Balance shall be within the range permitted by Section 1 of
this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and acceptable to the Purchaser, shall be
duly executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee, the
Purchaser or the Purchaser's designee, as the case may be, all documents
and funds required to be so delivered pursuant to Section 2;
(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
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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 Maryland, dated not earlier than 30 days prior to the
Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser and each Underwriter
may rely;
(e) Written opinions of counsel for the Seller, substantially in the form
of Exhibits D-3A and D-3B hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the Purchaser
and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested by
the Rating Agencies in connection with the issuance of the Certificates, each of
which shall include the Purchaser and each Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
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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.
This indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-37717 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated December 17,
E-493
1997, as supplemented by the prospectus supplement dated December 17, 1997 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated December 17, 1997, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Xxxxxx, 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").
(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
E-494
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 9, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) 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.
E-495
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at 000 Xxxxxxx
Xxxx, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured
Finance Manager, facsimile no. (000) 000-0000, with a copy to the General
Counsel, GMAC Commercial Mortgage Corporation, or such other address or
facsimile number as may hereafter be furnished to the Seller in writing by the
Purchaser; and if to the Seller, addressed to 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. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it was a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
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.
E-496
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. 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
E-497
which would have a material adverse effect on any third party beneficiary under
Section 12 hereof without the prior consent of that person.
E-498
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/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------
Title: Vice President
---------------------------
By: /s/ Xxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxx
---------------------------
Title: Vice President
---------------------------
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
---------------------------
Title: Vice President
---------------------------
E-499
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of
the related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date and
whether such Mortgage Loan is an ARM Loan or a Fixed-Rate
Loan;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity (B) with respect
to each ARD Loan, the Anticipated Repayment Date and (C)
Stated Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of an ARM Loan, the (A) Index, (B) Gross Margin,
(C) first Mortgage Rate adjustment date following the
Cut-off Date and the frequency of Mortgage Rate adjustments,
and (D) maximum and minimum lifetime Mortgage Rate, if any;
(x) whether such Mortgage Loan is an ARD Loan or a Defeasance
Loan; and
(xi) the Master Servicing Fee Rate.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
E-500
====================================================================================================================================
Seller Loan Number Property Name Property Xxxxxxx Xxxx Xxxxx Xxx Xxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXX XX0000 Integrated Health Services - Center Xxxxxxx Xxxxxxx Xxxxxxx
XXX XX0000 IHS of Hanover House 00 Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxx 00000
DMG GA0120 IHS of Cheyenne Mountain 000 Xxxxxxxxxx Xxxx Xx. Xxxxxxxx Xxxxxxx Xxxxxxxx 00000
DMG GA0121 IHS of Cheyenne Place 000 Xxxxxxxxxx Xxxx Xxxx Xxxxxxxx Xxxxxxx Xxxxxxxx 00000
DMG GA0122 IHS of Mesa Manor 0000 Xxxxx 00xx Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxx 00000
DMG GA0123 IHS of Pikes Peak 0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx 00000
DMG GA0124 IHS of Pueblo 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxx 00000
DMG GA0125 IHS of Fort Xxxxx 00000 Xxxx Xxxx Xxxxxxx Xxxx Xxxxx Xxxxxxx 00000
DMG GA0126 IHS of Bradenton 0000 00xx Xxxxxx Xxxx Xxxxxxxxx Xxxxxxx 00000
DMG GA0127 IHS of Orange Park Care Ctr. 0000 Xxxxxxxxxxxx Xxxxxx Xx. Xxxxxx Xxxx Xxxxxxx 00000
DMG GA0128 IHS of Palm Bay Convalescent Ctr. 0000 Xxxx Xxxxxxx Xxxx. Xxxx Xxx Xxxxxxx 00000
DMG GA0129 IHS of Port Charlotte Care Center 0000 Xxxxxx Xxxx Xxxx Xxxxxxxxx Xxxxxxx 00000
DMG GA0130 IHS of Sebring 0000 Xxxxxxxxxx Xxxx. Xxxxxxx Xxxxxxx 00000
DMG GA0131 IHS of Winter Park Care Center 0000 Xxxxxxx Xxxx Xxxxxx Xxxx Xxxxxxx 00000
DMG GA0132 The Shores Retirement Community 0000 0xx Xxxxxx Xxxx Xxxxxxxxx Xxxxxxx 00000
DMG GA0133 IHS of Buckhead/Heritage 00 Xxxxxxxxx Xxxx Xxxxx, XX Xxxxxxx Xxxxxxx 00000
DMG GA0134 IHS of Shoreham 000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx 00000
DMG GA0135 IHS of Boise 0000 Xxxxxx Xxxx Xxxxx Xxxxx 00000
DMG GA0136 IHS of Great Bend Manor 0000 Xxxxxx Xxxxxxx 00 Xxxxx Xxxx Xxxxxx 00000
DMG GA0137 IHS of Wichita/Northeast 0000 X. 00xx Xxxxxx X. Xxxxxxx Xxxxxx 00000
DMG GA0138 IHS of Mayfair Manor 0000 Xxxxx Xxxxx XX Xxxxxxxxx Xxxxxxxx 00000
DMG GA0139 IHS of Shreveport/Centenary 000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx 00000
DMG GA0140 IHS of Heritage Manor of Alexandria 0000 XxxXxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxx 00000
DMG GA0141 IHS of Heritage Manor of Gonzales 000 Xxxx Xxxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxxx 00000
DMG GA0142 IHS of Heritage Manor of Kaplan 0000 Xxxx 0xx Xxxxxx Xxxxxx Xxxxxxxxx 00000
DMG GA0143 IHS of Heritage Manor of Lafayette 000 Xxxxxx Xxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxx 00000
DMG GA0144 IHS of Heritage Manor of Many I 000 Xxxxxxxxxxxx Xxxxxxx Xxxx Xxxxxxxxx 00000
DMG GA0145 IHS of Heritage Manor of Many II 000 Xxxxxx Xxxxx Xxxx Xxxx Xxxxxxxxx 00000
DMG GA0146 IHS of Heritage Manor of Marrero 0000 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxxx 00000
DMG GA0147 IHS of Minden/Meadowview 000 Xxxxxxxxxx Xx. Xxxxxx Xxxxxxxxx 00000
DMG GA0148 IHS of Heritage Manor of New Iberia I 0000 Xxxx Xxxxxx Xxx Xxxxxx Xxxxxxxxx 00000
DMG GA0149 IHS of Heritage Manor of New Iberia II 000 Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxxxxxx 00000
DMG GA0150 IHS of Claiborne/Heritage Manor of
Shreveport 1536 Claiborne Xxxxxxxxxx Xxxxxxxxx 00000
DMG GA0151 IHS of Heritage Manor of Thibodaux 0000 Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxx 00000
DMG GA0152 IHS of Heritage Manor of Vivian 000 Xxxxx Xxxxx Xx. Xxxxxx Xxxxxxxxx 00000
DMG GA0153 IHS of Charlotte at Hawthorne 000 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxxxx 00000
DMG GA0154 IHS of Pierremont Heritage Manor 000 Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxx 00000
DMG GA0155 IHS of Nashville/Xxxxxxxx 0000 XxXxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx 00000
DMG GA0156 IHS of Heritage Manor of Plainview 0000 Xxxx 00xx Xxxxxx Xxxxxxxxx Xxxxx 00000
DMG GA0157 IHS of Heritage Manor of Iowa Park 0000 Xxxxx Xxxxx Xxxxxx Xxxx Xxxx Xxxxx 00000
DMG GA0158 IHS of Wichita Falls/Midwestern 000 Xxxxxxxxxx Xxxxxxx Xxxxxxx Xxxxx Xxxxx 00000
DMG GA0159 IHS of Terrell Care Center 000 Xxxx Xxxx Xxxxxx Xxxxxxx Xxxxx 00000
DMG GA0160 IHS of Terrell Convalescent Center 0000 X. Xxxxxxx Xxxxxx Xxxxxxx Xxxxx 00000
DMG GA0161 IHS Jeffersonian Xxxxx-Xxxxxxx Xxxx Xxxxx Xxxxxxx 0 Xxxxxxx Xxxx Xxxx Xxxxxxxx 00000
DMG XX0000 Xxxxx - Xxxxxxxxx #0000 0000 Xxxxx Xxxx 00 Xxxx Xxxxxxxxx Xxxxxxx 00000
DMG GA0191 Kmart - Xxxxx #0000 0 Xxxxx Xxxxx Xxxxx (Xxxxxxx) Xxxx Xxxxxxxx 00000
DMG XX0000 Xxxxx - Xxxxxxx #0000 000 Xxxx Xxxxxxxx Xxx Xxxxxxx Xxxxxxxxxx 00000
DMG GA0193 Kmart - Laredo #4809 0000 Xxx Xxxxx Xxxx Xxxxxx Xxxxx 00000
DMG XX0000 Xxxxx - Xxxxx Xxxxx #0000 000 Xxxx X Xxxxxx Xxxxx Xxxxx Xxxxxxxxxx 00000
DMG XX0000 Xxxxx - Xxxxxxx #0000 0000 Xxxxxxx Xxxx Xxxxxxx Xxxxxxxxxxx 00000
DMG XX0000 Xxxxx - Xxxxxxxxxxx #0000 0000 Xxxxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxxxxx 00000
DMG TA0662 Lincoln Place Apartments 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxxxx Xxxxxxxxxx 00000
DMG TA0972 Lincoln Place II 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxxxx Xxxxxxxxxx 00000
DMG TA1453 Fruitvale Shopping Center 0000-0000 Xxxx 0xx Xxxxxx Xxxxxxx Xxxxxxxxxx 00000
DMG TA1456 Cedar Brook Corporate Center 4 and 0 Xxxxx Xxxxx Xxxxx Xxxxxxxx Xxx Xxxxxx 00000
DMG TA1474 Monterey Resources Building 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx Xxxxxxxxxx 00000
DMG TA1650 Village View Apartments 0000 Xxxxxx Xxxx Xxxxxx Xxxxx 00000
====================================================================================================================================
Seller Loan Number Current Rate Interest Type Original Balance Cut-off Date Balance Remaining Term Maturity Date Due Date
====================================================================================================================================
DMG GA0118 8.29400 Fixed 165,500,000.00 165,290,099.27 118 9/30/07 01
DMG GA0119 8.29400 Fixed 6,033,078.00 6,025,426.40 118 9/30/07 01
DMG GA0120 8.29400 Fixed 7,150,315.00 7,141,246.42 118 9/30/07 01
DMG GA0121 8.29400 Fixed 3,426,193.00 3,421,847.64 118 9/30/07 01
DMG GA0122 8.29400 Fixed 4,617,912.00 4,612,055.21 118 9/30/07 01
DMG GA0123 8.29400 Fixed 6,703,420.00 6,694,918.21 118 9/30/07 01
DMG GA0124 8.29400 Fixed 11,023,402.00 11,009,421.27 118 9/30/07 01
DMG GA0125 8.29400 Fixed 7,671,692.00 7,661,962.17 118 9/30/07 01
DMG GA0126 8.29400 Fixed 6,852,385.00 6,843,694.29 118 9/30/07 01
DMG GA0127 8.29400 Fixed 2,681,368.00 2,677,967.29 118 9/30/07 01
DMG GA0128 8.29400 Fixed 5,139,289.00 5,132,770.96 118 9/30/07 01
DMG GA0129 8.29400 Fixed 6,554,455.00 6,546,142.15 118 9/30/07 01
DMG GA0130 8.29400 Fixed 1,638,614.00 1,636,535.79 118 9/30/07 01
DMG GA0131 8.29400 Fixed 3,873,087.00 3,868,174.86 118 9/30/07 01
DMG GA0132 8.29400 Fixed 10,502,025.00 10,488,705.52 118 9/30/07 01
DMG GA0133 8.29400 Fixed 3,798,605.00 3,793,787.31 118 9/30/07 01
DMG GA0134 8.29400 Fixed 3,202,745.00 3,198,683.04 118 9/30/07 01
DMG GA0135 8.29400 Fixed 3,277,228.00 3,273,071.56 118 9/30/07 01
DMG GA0136 8.29400 Fixed 1,340,684.00 1,338,983.65 118 9/30/07 01
DMG GA0137 8.29400 Fixed 1,117,237.00 1,115,820.04 118 9/30/07 01
DMG GA0138 8.29400 Fixed 5,735,149.00 5,727,875.25 118 9/30/07 01
DMG GA0139 8.29400 Fixed 1,489,649.00 1,487,759.71 118 9/30/07 01
DMG GA0140 8.29400 Fixed 446,895.00 446,328.21 118 9/30/07 01
DMG GA0141 8.29400 Fixed 2,830,333.00 2,826,743.35 118 9/30/07 01
DMG GA0142 8.29400 Fixed 2,830,333.00 2,826,743.35 118 9/30/07 01
DMG GA0143 8.29400 Fixed 893,789.00 892,655.42 118 9/30/07 01
DMG GA0144 8.29400 Fixed 4,394,464.00 4,388,890.61 118 9/30/07 01
DMG GA0145 8.29400 Fixed 1,787,579.00 1,785,311.85 118 9/30/07 01
DMG GA0146 8.29400 Fixed 2,904,815.00 2,901,130.90 118 9/30/07 01
DMG GA0147 8.29400 Fixed 6,256,526.00 6,248,591.00 118 9/30/07 01
DMG GA0148 8.29400 Fixed 3,053,780.00 3,049,906.96 118 9/30/07 01
DMG GA0149 8.29400 Fixed 1,936,544.00 1,934,087.93 118 9/30/07 01
DMG GA0150 8.29400 Fixed 1,415,167.00 1,413,372.18 118 9/30/07 01
DMG GA0151 8.29400 Fixed 2,011,026.00 2,008,475.46 118 9/30/07 01
DMG GA0152 8.29400 Fixed 2,606,886.00 2,603,579.75 118 9/30/07 01
DMG GA0153 8.29400 Fixed 10,502,025.00 10,488,705.52 118 9/30/07 01
DMG GA0154 8.29400 Fixed 4,022,052.00 4,016,950.92 118 9/30/07 01
DMG GA0155 8.29400 Fixed 5,809,631.00 5,802,262.79 118 9/30/07 01
DMG GA0156 8.29400 Fixed 893,789.00 892,655.42 118 9/30/07 01
DMG GA0157 8.29400 Fixed 446,895.00 446,328.21 118 9/30/07 01
DMG GA0158 8.29400 Fixed 1,638,614.00 1,636,535.79 118 9/30/07 01
DMG GA0159 8.29400 Fixed 1,266,202.00 1,264,596.10 118 9/30/07 01
DMG GA0160 8.29400 Fixed 1,713,096.00 1,710,923.31 118 9/30/07 01
DMG GA0161 8.29400 Fixed 2,011,026.00 2,008,475.46 118 9/30/07 01
DMG GA0190 8.84150 Fixed 7,895,834.47 7,888,603.65 299 11/1/22 01
DMG GA0191 8.84150 Fixed 5,016,365.19 5,011,771.32 299 11/1/22 01
DMG GA0192 8.84150 Fixed 4,993,930.75 4,989,357.43 299 11/1/22 01
DMG GA0193 8.84150 Fixed 9,344,210.18 9,335,652.97 299 11/1/22 01
DMG GA0194 8.84150 Fixed 15,724,552.74 15,710,152.56 299 11/1/22 01
DMG GA0195 8.84150 Fixed 13,917,955.16 13,905,209.42 299 11/1/22 01
DMG GA0196 8.84150 Fixed 6,276,165.59 6,270,418.03 299 11/1/22 01
DMG TA0662 7.59000 Fixed 6,720,000.00 6,715,101.95 59 11/1/02 01
DMG TA0972 7.61000 Fixed 26,700,000.00 26,680,617.01 83 11/1/04 01
DMG TA1453 7.35000 Fixed 21,000,000.00 21,000,000.00 180 12/1/12 01
DMG TA1456 7.44000 Fixed 12,600,000.00 12,600,000.00 120 12/1/07 01
DMG TA1474 7.58000 Fixed 6,250,000.00 6,245,435.38 119 11/1/07 01
DMG TA1650 7.25500 Fixed 8,700,000.00 8,700,000.00 120 12/1/07 01
E-501
======================================================================================================================
Seller Loan Number Monthly Payment Index Margin Next Rate Adjustment Rate Adjustment Frequency
======================================================================================================================
DMG GA0118 1,248,469.28 Not Applicable - Not Applicable
DMG GA0119 45,511.25 Not Applicable - Not Applicable
DMG GA0120 53,939.27 Not Applicable - Not Applicable
DMG GA0121 25,845.90 Not Applicable - Not Applicable
DMG GA0122 34,835.78 Not Applicable - Not Applicable
DMG GA0123 50,568.06 Not Applicable - Not Applicable
DMG GA0124 83,156.37 Not Applicable - Not Applicable
DMG GA0125 57,872.34 Not Applicable - Not Applicable
DMG GA0126 51,691.79 Not Applicable - Not Applicable
DMG GA0127 20,227.22 Not Applicable - Not Applicable
DMG GA0128 38,768.85 Not Applicable - Not Applicable
DMG GA0129 49,444.32 Not Applicable - Not Applicable
DMG GA0130 12,361.08 Not Applicable - Not Applicable
DMG GA0131 29,217.10 Not Applicable - Not Applicable
DMG GA0132 79,223.30 Not Applicable - Not Applicable
DMG GA0133 28,655.24 Not Applicable - Not Applicable
DMG GA0134 24,160.29 Not Applicable - Not Applicable
DMG GA0135 24,722.17 Not Applicable - Not Applicable
DMG GA0136 10,113.61 Not Applicable - Not Applicable
DMG GA0137 8,428.01 Not Applicable - Not Applicable
DMG GA0138 43,263.79 Not Applicable - Not Applicable
DMG GA0139 11,237.35 Not Applicable - Not Applicable
DMG GA0140 3,371.21 Not Applicable - Not Applicable
DMG GA0141 21,350.96 Not Applicable - Not Applicable
DMG GA0142 21,350.96 Not Applicable - Not Applicable
DMG GA0143 6,742.41 Not Applicable - Not Applicable
DMG GA0144 33,150.17 Not Applicable - Not Applicable
DMG GA0145 13,484.82 Not Applicable - Not Applicable
DMG GA0146 21,912.82 Not Applicable - Not Applicable
DMG GA0147 47,196.86 Not Applicable - Not Applicable
DMG GA0148 23,036.56 Not Applicable - Not Applicable
DMG GA0149 14,608.55 Not Applicable - Not Applicable
DMG GA0150 10,675.48 Not Applicable - Not Applicable
DMG GA0151 15,170.42 Not Applicable - Not Applicable
DMG GA0152 19,665.36 Not Applicable - Not Applicable
DMG GA0153 79,223.30 Not Applicable - Not Applicable
DMG GA0154 30,340.84 Not Applicable - Not Applicable
DMG GA0155 43,825.65 Not Applicable - Not Applicable
DMG GA0156 6,742.41 Not Applicable - Not Applicable
DMG GA0157 3,371.21 Not Applicable - Not Applicable
DMG GA0158 12,361.08 Not Applicable - Not Applicable
DMG GA0159 9,551.75 Not Applicable - Not Applicable
DMG GA0160 12,922.95 Not Applicable - Not Applicable
DMG GA0161 15,170.42 Not Applicable - Not Applicable
DMG GA0190 65,406.67 Not Applicable - Not Applicable
DMG GA0191 41,554.03 Not Applicable - Not Applicable
DMG GA0192 141,368.19 Not Applicable - Not Applicable
DMG GA0193 177,404.57 Not Applicable - Not Applicable
DMG GA0194 30,257.37 Not Applicable - Not Applicable
DMG GA0195 15,292.07 Not Applicable - Not Applicable
DMG GA0196 151,989.83 Not Applicable - Not Applicable
DMG TA0662 147,402.05 Not Applicable - Not Applicable
DMG TA0972 88,705.49 Not Applicable - Not Applicable
DMG TA1453 44,684.14 Not Applicable - Not Applicable
DMG TA1456 87,583.94 Not Applicable - Not Applicable
DMG TA1474 44,043.79 Not Applicable - Not Applicable
DMG TA1650 59,378.84 Not Applicable - Not Applicable
============================================================================================================
Seller Loan Number ncy Rate Cap Rate Floor ARD Loan Defeasance Loan Master Servicing Fee
============================================================================================================
DMG GA0118 - - No Yes 0.0225
DMG GA0119 - - No Yes 0.0225
DMG GA0120 - - No Yes 0.0225
DMG GA0121 - - No Yes 0.0225
DMG GA0122 - - No Yes 0.0225
DMG GA0123 - - No Yes 0.0225
DMG GA0124 - - No Yes 0.0225
DMG GA0125 - - No Yes 0.0225
DMG GA0126 - - No Yes 0.0225
DMG GA0127 - - No Yes 0.0225
DMG GA0128 - - No Yes 0.0225
DMG GA0129 - - No Yes 0.0225
DMG GA0130 - - No Yes 0.0225
DMG GA0131 - - No Yes 0.0225
DMG GA0132 - - No Yes 0.0225
DMG GA0133 - - No Yes 0.0225
DMG GA0134 - - No Yes 0.0225
DMG GA0135 - - No Yes 0.0225
DMG GA0136 - - No Yes 0.0225
DMG GA0137 - - No Yes 0.0225
DMG GA0138 - - No Yes 0.0225
DMG GA0139 - - No Yes 0.0225
DMG GA0140 - - No Yes 0.0225
DMG GA0141 - - No Yes 0.0225
DMG GA0142 - - No Yes 0.0225
DMG GA0143 - - No Yes 0.0225
DMG GA0144 - - No Yes 0.0225
DMG GA0145 - - No Yes 0.0225
DMG GA0146 - - No Yes 0.0225
DMG GA0147 - - No Yes 0.0225
DMG GA0148 - - No Yes 0.0225
DMG GA0149 - - No Yes 0.0225
DMG GA0150 - - No Yes 0.0225
DMG GA0151 - - No Yes 0.0225
DMG GA0152 - - No Yes 0.0225
DMG GA0153 - - No Yes 0.0225
DMG GA0154 - - No Yes 0.0225
DMG GA0155 - - No Yes 0.0225
DMG GA0156 - - No Yes 0.0225
DMG GA0157 - - No Yes 0.0225
DMG GA0158 - - No Yes 0.0225
DMG GA0159 - - No Yes 0.0225
DMG GA0160 - - No Yes 0.0225
DMG GA0161 - - No Yes 0.0225
DMG GA0190 - - No Yes 0.0225
DMG GA0191 - - No Yes 0.0225
DMG GA0192 - - No Yes 0.0225
DMG GA0193 - - No Yes 0.0225
DMG GA0194 - - No Yes 0.0225
DMG GA0195 - - No Yes 0.0225
DMG GA0196 - - No Yes 0.0225
DMG TA0662 - - Yes Yes 0.0225
DMG TA0972 - - Yes Yes 0.0225
DMG TA1453 - - Yes Yes 0.0225
DMG TA1456 - - Yes Yes 0.0225
DMG TA1474 - - Yes Yes 0.0225
DMG TA1650 - - Yes Yes 0.0225
E-502
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most recent
endorsee prior to the Trustee or, if none, by the
originator, without recourse, either in blank or to the
order of the Trustee in the following form: "Pay to the
order of State Street Bank and Trust Company, as trustee for
the registered holders of GMAC Commercial Mortgage
Securities, Inc., Mortgage Pass-Through Certificates, Series
1997-C2, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable,
the originals or copies of any intervening assignments
thereof showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any, in each case
with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior
to the Trustee or, if none, by the originator, either in
blank or in favor of the Trustee (in such capacity);
(iv) the original or a copy of the related (Assignment of Leases)
(if such item is a document separate from the Mortgage) and,
if applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment
from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording thereon;
(v) an original assignment of any related (Assignment of Leases)
(if such item is a document separate from the Mortgage), in
recordable form, executed by the most recent assignee of
record thereof prior to the Trustee or, if none, by the
originator, either in blank or in favor of the Trustee (in
such capacity), which assignment may be included as part of
the corresponding assignment of Mortgage referred to in
clause (iii) above;
(vi) an original or copy of any related security agreement (if
such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of
E-503
assignment from the originator of the Mortgage Loan to the
most recent assignee of record thereof prior to the Trustee,
if any;
(vii) an original assignment of any related security agreement (if
such item is a document separate from the Mortgage) executed
by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, either in blank or
in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of
Mortgage referred to in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of
recording thereon if appropriate, in those instances where
the terms or provisions of the Mortgage, Mortgage Note or
any related security document have been modified or the
Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance
policy issued as of the date of the origination of the
Mortgage Loan, together with all endorsements or riders (or
copies thereof) that were issued with or subsequent to the
issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgaged Property;
(x) the original or a copy of any guaranty of the obligations of
the mortgagor under the Mortgage Loan together with (A) if
applicable, the original or copies of any intervening
assignments of such guaranty showing a complete chain of
assignment from the originator of the Mortgage Loan to the
most recent assignee thereof prior to the Trustee, if any,
and (B) an original assignment of such guaranty executed by
the most recent assignee thereof prior to the Trustee or, if
none, by the originator;
(xi) (A) file or certified copies of any UCC financing statements
and continuation statements which were filed in order to
perfect (and maintain the perfection of) any security
interest held by the originator of the Mortgage Loan (and
each assignee of record prior to the Trustee) in and to the
personalty of the mortgagor at the Mortgaged Property (in
each case with evidence of filing thereon) and which were in
the possession of the Seller (or its agent) at the time the
Mortgage Files were delivered to the Trustee and (B) if any
such security interest is perfected and the earlier UCC
financing statements and continuation statements were in the
possession of the Seller, a UCC financing statement executed
by the most recent assignee of record prior to the Trustee
or, if none, by the originator,
E-504
evidencing the transfer of such security interest, either in
blank or in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate) granted by
the Mortgagor if the Mortgage, Mortgage Note or other
document or instrument referred to above was signed on
behalf of the Mortgagor; and
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy
thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
E-505
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule C-1 hereto that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer
thereof to the Purchaser, the Seller had good and marketable title to, and
was the sole owner and holder of, such Mortgage Loan, free and clear of any
and all liens, encumbrances and other interests on, in or to such Mortgage
Loan (other than, in certain cases, the right of a subservicer to directly
service such Mortgage Loan). Such transfer validly assigns ownership of
such Mortgage Loan to the Purchaser free and clear of any pledge, lien,
encumbrance or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right
and authority to sell, assign and transfer such Mortgage Loan. No provision
of the Mortgage Note, Mortgage or other loan document relating to such
Mortgage Loan prohibits or restricts the Seller's right to assign or
transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct
in all material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the Cut-off
Date, and has not been during the twelve-month period prior thereto, 30
days or more delinquent in respect of any debt service payment required
thereunder, without giving effect to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a valid
first lien upon the related Mortgaged Property, including all buildings
located thereon and all fixtures attached thereto, such lien being subject
only to (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
Mortgaged Property to generate net operating income sufficient to service
the Mortgage Loan. If the Mortgaged Property is operated as a nursing
facility, a hospitality property or a multifamily property,
E-506
the Mortgage, together with any separate security agreement, similar
agreement and UCC financing statement, if any, establishes and creates a
first priority, perfected security interest, to the extent such security
interest can be perfected by the recordation of a Mortgage or the filing of
a UCC financing statement, in all personal property owned by the Mortgagor
that is used in, and is reasonably necessary to, the operation of the
related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by
an ALTA lender's title insurance policy ("Title Policy"), or its equivalent
as adopted in the applicable jurisdiction, issued by a nationally
recognized title insurance company, insuring the originator of such
Mortgage Loan, its successors and assigns, as to the first priority lien of
the Mortgage in the original principal amount of the Mortgage Loan after
all advances of principal, subject only to Permitted Encumbrances (or, if a
title insurance policy has not yet been issued in respect of the Mortgage
Loan, a policy meeting the foregoing description is evidenced by a
commitment for title insurance "marked-up" at the closing of such loan).
Each Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) is in full force and effect, all premiums thereon have
been paid and, to the Seller's knowledge, no material claims have been made
thereunder and no claims have been paid thereunder. The Seller has not, by
act or omission, done anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment
of the related Mortgage Loan to the Trustee, such Title Policy (or, if it
has yet to be issued, the coverage to be provided thereby) will inure to
the benefit of the Trustee without the consent of or notice to the insurer.
To the Seller's actual knowledge, the insurer that issued such Title Policy
is qualified to do business in the state in which the related Mortgaged
Property is located,
(vii) No Waivers by Seller of Material Defaults. The Seller has not
waived any material default, breach, violation or event of acceleration
existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid
offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or
obtained in connection with or otherwise following the Seller's acquisition
of) such Mortgage Loan, the related Mortgaged Property is, to the Seller's
knowledge, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. The Seller has no
actual notice of the commencement of a proceeding for the condemnation of
all or any material portion of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for
future advances thereunder.
E-507
(xii) Enforceability. The related Mortgage Note and Mortgage and all
other documents and instruments evidencing, guaranteeing, insuring or
otherwise securing such Mortgage Loan have been duly and properly executed
by the parties thereto, and each is the legal, valid and binding obligation
of the maker thereof (subject to any non-recourse provisions contained in
any of the foregoing agreements and any applicable state anti-deficiency
legislation), enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws relating to or affecting the rights
of creditors generally and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(xiii) Insurance. All improvements upon the related Mortgaged Property
are insured against loss by hazards of extended coverage in an amount
(subject to a customary deductible) at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
replacement cost of the improvements located on such Mortgaged Property and
the related hazard insurance policy contains appropriate endorsements to
avoid the application of co-insurance and does not permit reduction in
insurance proceeds for depreciation. If any portion of the related
Mortgaged Property was, at the time of the origination of such Mortgage
Loan, in an area identified in the Federal Register by the Flood Emergency
Management Agency as having special flood hazards, and flood insurance was
available, a flood insurance policy meeting any requirements of the then
current guidelines of the Federal Insurance Administration is in effect
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (1) the outstanding principal balance
of such Mortgage Loan, (2) the full insurable value of such Mortgaged
Property, (3) the maximum amount of insurance available under the National
Flood Insurance Act of 1968, as amended, and (4) 100% of the replacement
cost of the improvements located on such Mortgaged Property. In addition,
the Mortgage requires the Mortgagor to maintain in respect of the Mortgaged
Property comprehensive general liability insurance in amounts generally
required by the Seller, and at least six months rental or business
interruption insurance, and all such insurance required by the Mortgage to
be maintained is in full force and effect. Each such insurance policy
requires prior notice to the holder of the Mortgage of termination or
cancellation, and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property was
subject to one or more environmental site assessments (or an update of a
previously conducted assessment), which was (were) performed on behalf of
the Seller, or as to which the related report was delivered to the Seller
in connection with its origination or acquisition of such Mortgage Loan;
and the Seller, having made no independent inquiry other than reviewing the
resulting report(s) and/or employing an environmental consultant to perform
the assessment(s) referenced herein, has no knowledge of any material and
adverse environmental conditions or circumstance affecting such Mortgaged
Property that was not disclosed in the related report(s). The Seller has
not taken any action with respect to such Mortgage Loan or the related
Mortgaged Property that could subject the Purchaser, or its
E-508
successors and assigns in respect of the Mortgage Loan, to any liability
under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA") or any other applicable federal, state
or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state
or local environmental law with respect to the related Mortgaged Property
that was not disclosed in the related report. The related Mortgage or loan
documents in the related Mortgage File requires the Mortgagor to comply
with all applicable federal, state and local environmental laws and
regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will
not be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and
the Mortgage Note have not been impaired, waived, altered or modified in
any material respect, except as specifically set forth in the related
Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For
purposes of this representation and warranty, real property taxes and
assessments shall not be considered unpaid until the date on which interest
and/or penalties would be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. The interest of
the related Mortgagor in the related Mortgaged Property consists of a fee
simple estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage referred
to in clause (iii) of Exhibit B constitutes the legal, valid and binding
assignment of such Mortgage from the relevant assignor to the Trustee. The
Assignment of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases,
licenses or other agreements pursuant to which any person is entitled to
occupy, use or possess all or any portion of the real property subject to
the related Mortgage, and each assignor thereunder has the full right to
assign the same. The related assignment of any Assignment of Leases, not
included in a Mortgage, executed and delivered in favor of the Trustee is
in recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's
right, title and interest in, to and under such Assignment of Leases.
E-509
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that
are, as of the Closing Date, required to be deposited with the mortgagee or
its agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the
Seller, as of the Closing Date, the related Mortgaged Property was and is
free and clear of any mechanics' and materialmen's liens or liens in the
nature thereof which create a lien prior to that created by the related
Mortgage, except those which are insured against by the Title Policy
referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination
of such Mortgage Loan), as of the date of such origination, no improvement
that was included for the purpose of determining the appraised value of the
related Mortgaged Property at the time of origination of such Mortgage Loan
lay outside the boundaries and building restriction lines of such property
to any material extent (unless affirmatively covered by the title insurance
referred to in paragraph (vi) above), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent.
To the Seller's knowledge, based upon opinions of counsel and/or other due
diligence customarily performed by the Seller, the improvements located on
or forming part of such Mortgaged Property comply in all material respects
with applicable zoning laws and ordinances (except to the extent that they
may constitute legal non-conforming uses).
(xxiv) Originator Authorized. To the extent required under applicable
law as of the Closing Date, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related
Mortgaged Property is located at all times when it held the Mortgage Loan
to the extent necessary to ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge, there exists
no material default, breach or event of acceleration under the related
Mortgage or Mortgage Note, and (B) the Seller has not received actual
notice of any event (other than payments due but not yet delinquent) that,
with the passage of time or with notice and the expiration of any grace or
cure period, would constitute such a material default, breach or event of
acceleration; provided, however, that this representation and warranty does
not cover any default, breach or event of acceleration that specifically
pertains to any matter otherwise covered or addressed by any other
representation and warranty made by the Seller herein.
(xxvi) Inspection. In connection with the origination or acquisition
of each Mortgage Loan, the Seller inspected or caused to be inspected the
Mortgaged Property.
(xxvii) No Equity Participation or Contingent Interest. The Mortgage
Loan contains no equity participation by the lender, and does not provide
for any contingent or
E-510
additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Loan.
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage
loans by the Seller, as of the date of origination of the Mortgage Loan,
the related Mortgagor or operator of the related Mortgaged Property was in
possession of all material licenses, permits and authorizations required by
applicable laws for the ownership and operation of the related Mortgaged
Property as it was then operated and if a related Mortgaged Property is
improved by a skilled nursing, congregate care or assisted living facility,
the most recent inspection or survey by governmental authorities having
jurisdiction in connection with such licenses, permits and authorizations
did not cite such Mortgaged Property for material violations (which shall
include only "Level A" (or equivalent) violations in the case of skilled
nursing facilities) that had not been cured or as to which a plan of
correction had not been submitted to and accepted by such governmental
authorities. To the extent such facility participates in Medicaid or
Medicare, such facility is in compliance in all material respects with the
requirements of such program.
(xxx) Servicing. The servicing and collection practices used with
respect to the Mortgage Loan have complied with applicable law in all
material respects and are consistent with the servicing standard set forth
in Section 3.01(a) of the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. The related Mortgage or Mortgage Note,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph (xii)) such as
to render the rights and remedies of the holders thereof adequate for the
practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage
provides that insurance proceeds and condemnation proceeds will be applied
either to restore or repair the Mortgaged Property, or to repay the
principal of the Mortgage Loan or otherwise at the option of the holder of
the Mortgage, except that with respect to the Credit Lease Loans, the
proceeds will go to the tenant unless there is an event of default under
the Credit Lease.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount
of the Mortgage Loan and either: (A) such Mortgage Loan is secured by an
interest in real property having a fair market value (1) at the date the
Mortgage Loan was originated at least equal to 80 percent of the original
E-511
principal balance of the Mortgage Loan or (2) at the Closing Date at least
equal to 80 percent of the principal balance of the Mortgage Loan on such
date; provided that for purposes hereof, the fair market value of the real
property interest must first be reduced by (X) the amount of any lien on
the real property interest that is senior to the Mortgage Loan and (Y) a
proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxxiii)
shall be made on a pro rata basis in accordance with the fair market values
of the Mortgaged Properties securing such cross-collateralized Mortgage
Loans; or (B) substantially all the proceeds of such Mortgage Loan were
used to acquire, improve or protect the real property which served as the
only security for such Mortgage Loan (other than a recourse feature or
other third party credit enhancement within the meaning of Treasury
Regulations Section 1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a
taxable exchange under Section 1001 of the Code, it either (A) was modified
as a result of the default or reasonably foreseeable default of such
Mortgage Loan or (B) satisfies the provisions of either clause (A)(1) of
paragraph (xxxiii) (substituting the date of the last such modification for
the date the Mortgage Loan was originated) or clause (A)(2) of paragraph
(xxxiii), including the proviso thereto.
(xxxv) Credit Lease Loans. With respect to each Mortgage Loan which is
a credit lease loan (a "Credit Lease Loan"):
(a) To the Seller's knowledge, each credit lease ("Credit Lease") contains
customary and enforceable provisions which render the rights and
remedies of the lessor thereunder adequate for the enforcement and
satisfaction of the lessor's rights thereunder;
(b) To the Seller's knowledge, in reliance on a tenant estoppel
certificate and representation made by the tenant under the credit
lease or representations made by the related borrower under the
Mortgage Loan documents, as of the closing date of each Credit Lease
Loan (a) each credit lease was in full force and effect, and no
default by the borrower or the tenant has occurred under the credit
lease, nor is there any existing condition which, but for the passage
of time or the giving of notice, or both, would result in a default
under the terms of the Credit Lease, (b) none of the terms of the
credit lease have been impaired, waived, altered or modified in any
respect (except as described in the related tenant estoppel), (c) no
tenant has been released, in whole or in part, from its obligations
under the credit leases, (d) there is no right of rescission, offset,
abatement, diminution, defense or counterclaim to any credit lease,
nor will the operation of any of the terms of the credit leases, or
the exercise of any rights thereunder, render the credit lease
unenforceable, in whole or in part, or subject to any right of
rescission, offset,
E-512
abatement, diminution, defense or counterclaim, and no such right of
rescission, offset, abatement, diminution, defense or counterclaim has
been asserted with respect thereto and (e) each credit lease has a
term ending on or after the final maturity of the related Credit Lease
Loan;
(c) The Mortgaged Property is not subject to any lease other than the
related Credit Lease, no Person has any possessory interest in, or
right to occupy, the Mortgaged Property except under and pursuant to
such Credit Lease and the tenant under the related Credit Lease is in
occupancy of the Mortgaged Property;
(d) The lease payments under the related Credit Lease are sufficient to
pay the entire amount of scheduled interest and principal on the
Credit Lease Loan, subject to the rights of the Tenant to terminate
the Credit Lease or offset, xxxxx, suspend or otherwise diminish any
amounts payable by the tenant under the Credit Lease which have been
disclosed to Purchaser, each Credit Lease Loan fully amortizes over
its original term, and, there is no "balloon" payment of rent due
under the Credit Leases;
(e) Under the terms of the Credit Leases, the lessee is not permitted to
assign its interest or obligations under the Credit Lease unless such
lessee remains fully liable thereunder;
(f) The mortgagee is entitled to notice of any event of default from the
tenant under Credit Leases;
(g) Each tenant under a Credit Lease is required to make all rental
payments directly to the mortgagee, its successors and assigns under
the related Credit Lease Loan;
(h) Each Credit Lease Loan provides that the related Credit Lease cannot
be modified without the consent of the mortgages thereunder; and
(i) Each Credit Lease Loan under which a Credit Lease may be terminated
upon the occurrence of a casualty or condemnation requires upon such
termination the payment in full by the Tenant of: (a) the principal
balance of the loan and (b) all accrued and unpaid interest on the
Mortgage Loan. Under the Credit Lease for each Credit Lease Loan, upon
the occurrence of a casualty or condemnation the Tenant has no right
of rent abatement.
(xxxvi) Litigation. To the Seller's actual knowledge, there are no
pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the related Mortgagor or the
related Mortgaged Property that, if determined adversely to such Mortgagor
or Mortgaged Property, would materially and adversely affect the value of
the Mortgaged Property or
E-513
the ability of the Mortgagor to pay principal, interest or any other
amounts due under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple estate in real estate or, if the related
Mortgage Loan is secured in whole or in part by the interest of a Mortgagor
as a lessee under a ground lease of a Mortgaged Property (a "Ground
Lease"), by the related Mortgagor's interest in the Ground Lease but not by
the related fee interest in such Mortgaged Property (the "Fee Interest") or
if the Mortgage Loan is secured in whole or in part by a Ground Lease and a
Fee Interest, either (1) the ground lessor's fee interest is subordinated
to the lien of the Mortgage or (2) the following apply to such Ground
Lease:
(a) To the actual knowledge of the Seller, such Ground Lease or a
memorandum thereof has been or will be duly recorded; such Ground
Lease (or the related estoppel letter or lender protection
agreement between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected
in written instruments that are a part of the related Mortgage
File;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the ground lessor's related fee
interest and Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor;
(d) Such Ground Lease is in full force and effect, and the Seller has
received no notice that an event of default has occurred
thereunder, and, to the Seller's actual knowledge, there exists
no condition that, but for the passage of time or the giving of
notice, or both, would result in an event of default under the
terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the mortgagee, provided that the
mortgagee has provided the lessor with notice of its lien in
accordance with the provisions of such Ground Lease, and such
Ground Lease, or an estoppel letter or other agreement, further
provides
E-514
that no notice of termination given under such Ground Lease is
effective against the mortgagee unless a copy has been delivered
to the mortgagee;
(f) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
(g) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than ten years
beyond the Stated Maturity Date of the related Mortgage Loan;
(h) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds other than in
respect of a total or substantially total loss or taking, will be
applied either to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in such
cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or to the
payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon; and
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the
related Mortgage Loan, as commercially unreasonable by the
Seller; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of any subtenant of the lessee, or in any manner, which would
materially adversely affect the security provided by the related
Mortgage.
(j) Such Ground Lease requires the lessor to enter into a new lease
in the event of a termination of the Ground Lease by reason of a
default by the Mortgagor under the Ground Lease, including,
rejection of the ground lease in a bankruptcy proceeding.
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
E-515
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment
of a release price, the related Mortgage Note or Mortgage does not require
the holder thereof to release all or any portion of the Mortgaged Property
from the lien of the related Mortgage except upon payment in full of all
amounts due under such Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal
priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage
or similar conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor
is not a debtor in any state or federal bankruptcy or insolvency
proceeding.
(xlii) Due Organization of Mortgagor. As of the date of origination of
such Mortgage, each related Mortgagor which is not a natural person was
duly organized and validly existing under the laws of the state of its
jurisdiction.
(xliii) Defeasance Provisions. Any Mortgage Loan which contains a
provision for any defeasance of mortgage collateral either (A) requires the
consent of the holder of the Mortgage Loan to any defeasance, or (B)
permits defeasance (i) no earlier than two years after the Closing Date (as
defined in the Pooling and Servicing Agreement, dated as of December 1,
1997), (ii) only with substitute collateral constituting "government
securities" within the meaning of Treas. Reg. ss. 1.860G-2(a)(8)(i), and
(iii) only to facilitate the disposition of mortgage real property and not
as a part of an arrangement to collateralize a REMIC offering with
obligations that are not real estate mortgages.
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
E-516
EXHIBIT D-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 December 17, 1997 (the
"Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
E-517
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
_______ __, 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 is her genuine signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
_______ __, 1997.
By:
-------------------------
Name:
Title:
X-000
XXXXXXX X-0
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
December 17, 1997 (the "Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. and the Seller, the Seller hereby certifies that (i) the
representations and warranties of the Seller in the Purchase Agreement are true
and correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Purchase Agreement.
Certified this ___st day of _______, 1997.
GERMAN AMERICAN CAPITAL CORPORATION
By:
-------------------------
Name:
Title:
E-519
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
December [ ], 1997
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
[Rating Agencies]
[Trustee]
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-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 1997-C2 (the "Certificates"), evidencing
undivided interests in a trust fund (the "Trust Fund") consisting primarily of
certain mortgage loans (the "Mortgage Loans"), pursuant to a Pooling and
Servicing Agreement, dated as of December 1, 1997 (the "Pooling and Servicing
Agreement"), among GMAC Commercial Mortgage Securities, Inc. as depositor (the
"Depositor"), GMAC Commercial Mortgage Corporation ("GMACCM") as master servicer
and special servicer, and State Street Bank and Trust Company as trustee (the
"Trustee").
Certain of the Mortgage Loans were purchased by the Depositor from Xxxxxxx
Xxxxx Mortgage Company ("GSMC"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of December 17,
1997 (the "Goldman Mortgage Loan Purchase Agreement"), between GSMC and the
Depositor. Certain of the Mortgage Loans were purchased by the Depositor from
the GMACCM, pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of December 17, 1997 (the "GMACCM Mortgage
Loan Purchase Agreement"), between the Depositor and GMACCM. Certain of the
Mortgage Loans were purchased by the Depositor from German
E-520
American Capital Corporation ("GACC"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of December 17,
1997 (the "GACC Mortgage Loan Purchase Agreement"), between GACC and the
Depositor. The GACC Mortgage Loan Purchase Agreement is referred to herein as
the "Agreement". 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 Mortgage Loan Purchase Agreement.
The Depositor has sold the Class X, Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D and Class E Certificates (collectively, the "Publicly
Offered Certificates") to the underwriters pursuant to the Underwriting
Agreement, dated as of December 17, 1997 (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 R-I, Class R-II and Class R-III
Certificates (collectively, the "Privately Offered Certificates") to Xxxxxxx,
Xxxxx & Co. and Deutsche Xxxxxx Xxxxxxxx Inc. as initial purchasers pursuant to
the Certificate Purchase Agreement, dated as of December 17, 1997 (the
"Certificate Purchase Agreement"), among the Depositor, GMACCM and initial
purchasers.
In connection with rendering this opinion letter, I have examined or have
caused persons under my supervision to examine the Agreement 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 Agreement. As
to matters of fact, I have examined and relied upon representations of parties
contained in the Agreement and, where I have deemed appropriate, representations
and certifications of officers of 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
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
Agreement.
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
E-521
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 Agreement.
2. The Agreement has been duly and validly authorized, executed and delivered
by the Seller and, upon due authorization, execution and delivery by the
other parties thereto, will constitute the valid, legal and binding
agreements of the Seller enforceable against the Seller in accordance with
their terms, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the rights of creditors, (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law,
and (iii) public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the enforceability
of the provisions of the Agreement 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 Agreement, 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 Agreement,
will result in a material breach of any 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
E-522
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,
E-523
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
December [ ], 1997
[GMAC Commercial Mortgage Corporation]
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C2
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as special
counsel to German American Capital Corporation ("GACC"), pursuant to Section
8(e) of the Mortgage Loan Purchase Agreement, dated December 17, 1997 (the "GACC
Mortgage Loan Purchase Agreement"), between GMAC Commercial Mortgage Securities,
Inc. (the "Purchaser") and GACC as the Seller, (in such capacity the "Seller"),
relating to the sale by the Seller of certain mortgage loans (the "Mortgage
Loans"), and pursuant to Section 6.11 of the Underwriting Agreement, dated as of
December 17, 1997, between the Purchaser and Xxxxxxx, Xxxxx & Co. and Deutsche
Xxxxxx Xxxxxxxx Inc., relating to that certain Pooling and Servicing Agreement,
dated as of December 17, 1997, among GMAC Commercial Mortgage Corporation
("GMACCM") as special servicer and master servicer (in such respective
capacities, the "Special Servicer" and the "Master Servicer"), Purchaser, and
State Street Bank and Trust Company, as trustee (the "Pooling and Servicing
Agreement" and together with the GACC Mortgage Loan Purchase Agreement, the
"Agreements"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Agreements.
In rendering this opinion, we have examined and relied upon executed copies
of the Agreements and originals or copies, certified or otherwise identified to
our satisfaction, of such certificates and other documents as we have deemed
appropriate for the purposes of rendering this opinion. We have examined and
relied upon, among other things, the documents and
E-524
opinions delivered to you at the closing being held today relating to the
Certificates, as well as (a) the Prospectus and the Memorandum, (b) an executed
copy of the GACC Mortgage Loan Purchase Agreement, and (c) an executed copy of
the Pooling and Servicing Agreement.
We are members of the bar of the State of New York and do not purport to be
experts on or to express any opinion herein concerning any laws other than the
laws of the State of New York and the federal laws of the United States of
America. We express no opinion herein as to the laws of any other jurisdiction.
We have not ourselves checked the accuracy or completeness of, or otherwise
independently verified, the information furnished with respect to the Prospectus
or the Memorandum. In addition, as you are aware, we did not examine or review
the Mortgage Files. However, in the course of the preparation by the Purchaser
of the Prospectus and the Memorandum, we have participated in conferences with
certain officers of the Seller, the Purchaser, counsel to the Purchaser and your
representatives, during which the contents of the Prospectus and the Memorandum
and related matters were discussed. On the basis of the discussions referred to
above, although we are not passing upon, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Prospectus and the Memorandum, and without independent check or verification
except as stated, no facts have come to our attention that have caused us to
believe that either the Prospectus or the Memorandum (other than financial and
statistical data included or not included therein or incorporated by reference
therein, as to which we express no opinion), as of its issue date, contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring to the
actual knowledge of the [Insert Name of Counsel to Seller] attorneys who have
represented you in connection with the transactions contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation to determine the existence or absence of such facts
and no inference as to our knowledge concerning such facts should be drawn from
the fact that such representation has been undertaken by us.
This letter is limited to the specific issues addressed herein and the
opinion rendered above is limited in all respects to laws and facts existing on
the date hereof. By rendering this opinion, we do not undertake to advise you
with respect to any other matter or of any change in such laws or facts or in
the interpretations of such laws which may occur after the date hereof.
E-525
We are furnishing this opinion to you solely for your benefit. This opinion
is not to be used, circulated, quoted or otherwise referred to for any other
purpose, except that the persons listed on Exhibit A hereto may rely upon this
opinion in connection with their rating of the Certificates to the same extent
as if this opinion had been addressed to them.
Very truly yours,
E-526
