EXHIBIT 99.2
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of April 28, 1998, between German American Capital Corporation as
seller (the "Seller") and GMAC Commercial Mortgage Securities, Inc. as purchaser
(the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by ▇▇▇▇▇'▇
Investors Service, Inc. and FITCH IBCA Inc. (together, the "Rating Agencies").
Certain classes of the Certificates (the "Registered Certificates") will be
registered under the Securities Act of 1933, as amended (the "Securities Act").
The Trust Fund will be created and the Certificates will be issued pursuant to a
pooling and servicing agreement to be dated as of May 1, 1998 (the "Pooling and
Servicing Agreement"), among the Purchaser as depositor, GMAC Commercial
Mortgage Corporation as master servicer (in such capacity, the "Master
Servicer") and special servicer (in such capacity, the "Special Servicer"),
LaSalle National Bank as trustee (in such capacity, the "Trustee") and ABN AMRO
Bank N.V. as fiscal agent. Capitalized terms not otherwise defined herein have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell certain of the Certificates to Deutsche
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇ Brothers 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 Deutsche
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇ Brothers 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:
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 May 18, 1998 or such
other date as shall be mutually acceptable to the parties hereto (the "Closing
Date"). As of the close of business on May 1, 1998 (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 $239,717,501, 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 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
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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 (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
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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.
(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
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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 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
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with the sale of the Mortgage Loans or the consummation of any of the
other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its behalf has (A)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (B) solicited any offer to buy
or to accept a pledge, disposition or other transfer of any
Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (C) otherwise approached or
negotiated with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any
manner, (D) made any general solicitation by means of general
advertising or in any other manner with respect to any Certificate,
any interest in any Certificate or any similar security, or (E) taken
any other action, that (in the case of any of the acts described in
clauses (A) through (E) above) would constitute or result in a
violation of the Securities Act or any state securities law relating
to or in connection with the issuance of the Certificates or require
registration or qualification pursuant to the Securities Act or any
state securities law of any Certificate not otherwise intended to be a
Registered Certificate. In addition, the Seller will not act, nor has
it authorized or will it authorize any person to act, in any manner
set forth in the foregoing sentence with respect to any of the
Certificates or interests therein. For purposes of this paragraph
4(b)(viii), the term "similar security" shall be deemed to include,
without limitation, any security evidencing or, upon issuance, that
would have evidenced an interest in the Mortgage Loans or any
substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information
set forth on pages A-9 through A-13, 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 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
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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.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
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(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Purchaser's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Purchaser to
perform its obligations under this Agreement or the financial condition of
the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Seller, the Underwriters, the Initial
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.
(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
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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.
For purposes of the foregoing, and subject to the following paragraph, the
"Permitted Cure Period" applicable to any Defect or Material Breach in respect
of any Mortgage Loan shall be the 90-day period immediately following the
earlier of the discovery by the Seller or receipt by the Seller of notice of
such Defect or Material Breach, as the case may be; provided that if such Defect
or Material Breach, as the case may be, cannot be corrected or cured in all
material respects within such 90-day period, but is reasonably likely that such
Defect or Material Breach, as the case may be, could be corrected or cured
within 180 days of the earlier of discovery by the Seller and receipt by the
Seller of notice of such Material Documents Defect or Material Breach, as the
case may be, and the Seller is diligently attempting to effect such correction
or cure, then the applicable Permitted Cure Period shall, with the consent of
the Purchaser or its assignee (which consent shall not be unreasonably
withheld), be extended for an additional 90 days.
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.
(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
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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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller specified
herein shall be true and correct as of the Closing Date, and the Aggregate
Cut-off Date Balance shall be within the range permitted by Section 1 of
this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and acceptable to the Purchaser, shall be
duly executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee, the
Purchaser or the Purchaser's designee, as the case may be, all documents
and funds required to be so delivered pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to Section 3
shall be satisfactory to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(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.
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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.
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
11
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,
1997, as supplemented by the prospectus supplement dated April 28, 1998 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated April 28, 1998, 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 ▇▇▇▇▇▇, Peabody Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
& Co. Incorporated, and ▇▇▇▇▇▇ 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 "▇▇▇▇▇▇
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 ▇▇▇▇▇▇ 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")
12
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election to assume the
defense of such action and approval by the indemnified party of counsel, which
approval will not be unreasonably withheld, the indemnifying party will not be
liable for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof, unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Purchaser and the
indemnifying party, representing all the indemnified parties under Section 9(a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall only be
in respect of the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the 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
13
method of allocation that does not take account of the considerations referred
to in Section 9(c) above. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages and liabilities referred to in this
Section 9 shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim, except
where the indemnified party is required to bear such expenses pursuant to this
Section 9, which expenses the indemnifying party shall pay as and when incurred,
at the request of the indemnified party, to the extent that the indemnifying
party will be ultimately obligated to pay such expenses. If any expenses so paid
by the indemnifying party are subsequently determined to not be required to be
borne by the indemnifying party hereunder, the party that received such payment
shall promptly refund the amount so paid to the party which made such payment.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto in accordance with the Allocation Agreement.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured
Finance Manager, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, 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 ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, 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
14
enforced by or on behalf of any such person or entity against the Seller to the
same extent as if it was a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK 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.
15
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
16
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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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.
A-1
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 LaSalle National Bank, as
trustee for the registered holders of GMAC Commercial Mortgage
Securities, Inc., Mortgage Pass-Through Certificates, Series
1998-C1, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of
the Mortgage Loan to the most recent assignee of record thereof
prior to the Trustee, if any, in each case with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to
the Trustee or, if none, by the originator, either in blank or
in favor of the Trustee (in such capacity);
(iv) the original or a copy of the related Assignment of Leases (if
such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from
the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any, in each case
with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in
recordable form, executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the originator,
either in blank or in favor of the Trustee (in such capacity),
which assignment may be included as part of the corresponding
assignment of Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related security agreement (if such
item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from
the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any;
B-1
(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, 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,
B-2
Mortgage Note or other document or instrument referred to above
was signed on behalf of the Mortgagor; and
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
B-3
EXHIBIT C
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
C-1
property, 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
C-2
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(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 Federal 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
C-3
any action with respect to such Mortgage Loan or the related Mortgaged Property
that could subject the Purchaser, or its successors and assigns in respect of
the Mortgage Loan, to any liability under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA") or any
other applicable federal, state or local environmental law, and the Seller has
not received any actual notice of a material violation of CERCLA or any
applicable federal, state or local environmental law with respect to the related
Mortgaged Property that was not disclosed in the related report. 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. Except in the case
of one Mortgage Loan as to which the interest of the related Mortgagor in the
related Mortgaged Property is in whole or in part a leasehold estate 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
C-4
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.
(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.
C-5
(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 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.
(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 principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
C-6
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) [Reserved.]
(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 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,
C-7
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 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
C-8
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.
(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 Mortgagors. As of the date of origination of
each 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.
C-9
(xliii) Due-On-Sale. The Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of such Mortgage Loan, the
related Mortgaged Property, or any controlling interest therein, is directly or
indirectly transferred or sold.
(xliv) Single Purpose Entity. Except for those Mortgage Loans identified
on Schedule C-1 hereto which represent 4.45% of the Mortgage Loans by Cut-Off
Date Principal Balance, the Mortgagor is an entity, other than an individual,
whose organizational documents or the related Mortgage Loan Documents provide
substantially to the effect that the Mortgagor: (a) is formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans, (b) may not engage in any business
unrelated to such Mortgaged Property or Mortgaged Properties, (c) does not have
any assets other than those related to its interest in and operation of such
Mortgage Property or Mortgaged Properties, (d) may not incur indebtedness other
than as permitted by the related Mortgage or other Mortgage Loan Documents, (e)
has its own books and records separate and apart from any other person, and (f)
holds itself out as a legal entity, separate and apart from any other person.
(xlvi) 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 May 1, 1998), (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.
C-10
SCHEDULE C-1 to EXHIBIT C
REPRESENTATIONS AND WARRANTIES EXCEPTIONS
1. CCRT Properties, L.P. (Grossmont Trolley) - TA1585
a) (ii) and (xx). In order for Seller to assign its interest in that
certain Assignment of License Agreement for Parking, Seller must
notify the San Diego Metropolitan Transit Development Board of the
assignment and must notify its assignee of the obligation to notify
San Diego Metropolitan Transit Development Board of any future
assignments. In order for assignees to take over Seller's interest,
they are subject to both the rights and the obligations under the
Assignment.
b) (xiii). Insurance must be maintained pursuant to the guidelines set
forth in provision (xiii), however the Deed of Trust sets forth that
the insurance may be maintained by either the Mortgagor or their
tenants.
c) (xxxvii). Mortgagor ground leases the property to a Ground Lessee. The
Ground Lessee in turn ground leases the property back to Mortgagor
pursuant to three separate Ground Subleases. This Loan is secured by
(i) a fee interest in the property and (ii) Mortgagor's interest in
the three Ground Subleasehold Estates on the property. The Mortgagor's
interest in the Ground Subleases is subject to the Ground Lessee's
interest in the Ground Lease and the Mortgage/Deed of Trust in the fee
is subject to the Ground Lease. Our responses are with respect to
Mortgagor's Ground Subleasehold interest.
i) Mortgagor is the Ground Lessor and the lien encumbers its fee
interest.
ii) Provision (g) of Section (xxxvii) is not true. The Ground
Lease and the underlying Ground Subleases expire in 2016, 12
years before the Maturity Date of the Mortgage Loan. However,
the Mortgage Loan will continue to be secured by a lien on the
fee estate, after the expiration of the Ground Lease and
Ground Subleases.
iii) In regards to provision (i) of section (xxxvii), the Ground
Subleases do not specifically contain a covenant that the
Ground Sublessor is not permitted to disturb the possession or
interest of any subtenants of the Ground Sublessee, in any
manner, which would materially adversely affect the security
provided by the Mortgage.
2. Westwood Investments L.P. (Hilgard House Hotel) - TA1658
C-11
(xliv). Westwood Investments L.P. is not a single purpose entity.
3. Aloha Mobile Home Park, LLC (Aloha Mobile Home) - TA0541
(xliv). Aloha Mobile Home Park, LLC is not a single purpose entity.
4. Women's ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇
(xliv). Women's National Republican Club is not a single purpose
entity.
▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
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 April 28, 1998 (the
"Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
D-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
_______ __, 1998.
By:______________________________
Name:
Title:
I, [name], [title], hereby certify that ________________ is a duly elected
or appointed, as the case may be, qualified and acting ______________ of the
Seller and that the signatures appearing above is her genuine signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
_______ __, 1998.
By:______________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
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
April 28, 1998 (the "Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. and the Seller, the Seller hereby certifies that (i) the
representations and warranties of the Seller in the Purchase Agreement are true
and correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Purchase Agreement.
Certified this ___th day of _______, 1998.
GERMAN AMERICAN CAPITAL
CORPORATION
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
D-2-1
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
May [__], 1998
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
[Rating Agencies]
[Trustee]
Re: GMAC Commercial Mortgage Corporation, Mortgage Pass-Through Certificates,
Series 1998-C1
Ladies and Gentlemen:
I am General Counsel to German American Capital Corporation (the "Seller").
In that capacity, I am familiar with the issuance of certain Mortgage
Pass-Through Certificates, Series 1998-C1 (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 May 1, 1998 (the "Pooling and Servicing
Agreement"), among GMAC Commercial Mortgage Securities, Inc. as depositor (the
"Depositor"), GMAC Commercial Mortgage Corporation ("GMACCM") as master servicer
and special servicer, LaSalle National Bank as trustee (the "Trustee") and ABN
AMRO Bank N.V. as fiscal agent.
Certain of the Mortgage Loans were purchased by the Depositor from the
GMACCM, pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of April 28, 1998 (the "GMACCM Mortgage Loan
Purchase Agreement"), between the Depositor and GMACCM. Certain of the Mortgage
Loans were purchased by the Depositor from German American Capital Corporation
("GACC"), pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of April 28, 1998 (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.
D-3A-1
The Depositor has sold the Class X, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class B, Class C,
Class D, Class E and Class F Certificates (collectively, the "Publicly Offered
Certificates") to the underwriters pursuant to the Underwriting Agreement, dated
as of April 28, 1998 (the "Underwriting Agreement"), among the Depositor,
GMACCM, and the underwriters named therein and sold the Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class R-I, Class R-II and Class R-III
Certificates (collectively, the "Privately Offered Certificates") to Deutsche
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇ Brothers Inc. as initial purchasers pursuant to
the Certificate Purchase Agreement, dated as of April 28, 1998 (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 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,
D-3A-2
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 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,
D-3A-3
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
May [__], 1998
[GMAC Commercial Mortgage Corporation]
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
Re: GMAC Commercial Mortgage Corporation, Mortgage Pass-Through Certificates,
Series 1998-C1
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 April 28, 1998 (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
April 28, 1998, between the Purchaser and Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and
▇▇▇▇▇▇ Brothers Inc., relating to that certain Pooling and Servicing Agreement,
dated as of May 1, 1998, among GMAC Commercial Mortgage Corporation ("GMACCM")
as special servicer and master servicer (in such respective capacities, the
"Special Servicer" and the "Master Servicer"), the Purchaser, LaSalle National
Bank, as trustee and ABN AMRO Bank N.V. as fiscal agent (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 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.
D-3B-1
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.
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,
D-3B-2
