EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of September 25, 1997, between GMAC Commercial Mortgage
Corporation as seller (the "Seller") and GMAC Commercial Mortgage Securities,
Inc. as purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other multifamily and commercial mortgage loans to a trust fund (the
"Trust Fund") to be formed by the Purchaser, beneficial ownership of which will
be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard
& Poor's Ratings Services, a Division of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., Fitch
Investors Service, L.P. and/or ▇▇▇▇▇'▇ Investor's Services, Inc. (together, the
"Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be registered under the Securities Act of 1933, as amended
(the "Securities Act"). The Trust Fund will be created and the Certificates
will be issued pursuant to a pooling and servicing agreement to be dated as of
September 1, 1997 (the "Pooling and Servicing Agreement"), among the Purchaser
as depositor, GMAC Commercial Mortgage Corporation as master servicer (in such
capacity, the "Master Servicer") and special servicer (in such capacity, the
"Special Servicer"), and 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 the Certificates to Deutsche ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Residential
Funding Securities Corp. and Llama Company, L.P. (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 September 30, 1997
or such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on September 1, 1997 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$1,696,984,278.05, 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
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delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, or because such
original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 2(b) shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Trustee, and
either the original of such missing document or instrument, or a copy thereof,
with evidence of recording or filing, as the case may be, thereon, is delivered
to or at the direction of the Purchaser (or any subsequent owner of the
affected Mortgage Loan, including without limitation the Trustee) within 180
days of the Closing Date (or within such longer period after the Closing Date
as the Purchaser (or such subsequent owner) may consent to, which consent shall
not be unreasonably withheld so long as the Seller has provided the Purchaser
(or such subsequent owner) with evidence of such recording or filing, as the
case may be, or has certified to the Purchaser (or such subsequent owner) as to
the occurrence of such recording or filing, as the case may be, and is, as
certified to the Purchaser (or such subsequent owner) no less often than
quarterly, in good faith attempting to obtain from the appropriate county
recorder's or filing office such original or copy). If the Seller cannot
deliver, or cause to be delivered, as to any Mortgage Loan, the original or a
copy of the related lender's title insurance policy referred to in clause (ix)
of Exhibit B solely because such policy has not yet been issued, the delivery
requirements of this Section 2(b) shall be deemed to be satisfied as to such
missing item, and such missing item shall be deemed to have been included in
the related Mortgage File, provided that the Seller has delivered to the
Trustee a commitment for title insurance "marked-up" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage
Loans only one original of any document referred to in Exhibit B covering all
the Mortgage Loans in such group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such group shall
be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan. On the Closing Date, upon notification from the Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdback
for transaction expenses in accordance with the Allocation Agreement) has been
received by the Seller, the Trustee shall be authorized to release to the
Purchaser or its designee all of the Mortgage Files in the Trustee's possession
relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all
costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (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
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unfiled, as the case may be, because of a defect therein, the Seller shall
promptly prepare or cause the preparation of a substitute therefor or cure or
cause the curing of such defect, as the case may be, and shall thereafter
deliver the substitute or corrected document to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee) for recording or filing, as appropriate, at the
Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession of
the Seller (or under its control) with respect to the Mortgage Loans, shall
(unless they are held by a sub-servicer that shall, as of the Closing Date,
begin acting on behalf of the Master Servicer pursuant to a written agreement
between such parties) be delivered by the Seller (or its agent) to the
Purchaser (or its designee) no later than the Closing Date. If a sub-servicer
shall, as of the Closing Date, begin acting on behalf of the Master Servicer
with respect to any Mortgage Loan pursuant to a written agreement between such
parties, the Seller shall deliver a copy of the related Servicing File to the
Master Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of
the Purchaser. The fact that the Purchaser has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files and/or
Servicing Files shall not affect the Purchaser's right to pursue any remedy
available in equity or at law for a breach of the Seller's representations,
warranties and covenants set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit
C, with such changes or modifications as may be permitted or required by the
Rating Agencies.
(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 California, 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.
(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
with the sale of the Mortgage Loans or the consummation of any of the
other transactions contemplated hereby.
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(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-7 through A-12, 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 (also as defined in Section
9) under the headings "Summary of the Prospectus Supplement--The
Mortgage Asset Pool", "Risk Factors--The Mortgage Loans" and
"Description of the Mortgage Asset Pool", set forth on Annex A to the
Prospectus Supplement and (to the extent it contains information
consistent with that on such Annex A) set forth on the Diskette, does
not contain any untrue statement of a material fact or (in the case of
the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to
state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any
bulk sale laws), for the execution, delivery and performance of or
compliance by the Seller with this Agreement, or the consummation by
the Seller of any transaction contemplated hereby, other than (1) the
filing or recording of financing statements, instruments of assignment
and other similar documents
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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.
(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
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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.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such
breach shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
(a) Within 90 days of the earlier of discovery or receipt of notice by
the Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement) in respect of the
Mortgage File for any Mortgage Loan or a breach of any representation or
warranty made pursuant to Section 4(a) and set forth in Exhibit C, which Defect
or breach, as the case may be, materially and adversely affects the value of
any Mortgage Loan or the interests therein of the Purchaser or its successors
and assigns (including, without limitation, the Trustee and the holders of the
Certificates), the Seller shall cure such Defect or breach, as the case may be,
in all material respects or repurchase the affected Mortgage Loan from the then
owner(s) thereof at the applicable Purchase Price (as defined in the Pooling
and Servicing Agreement) by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s),
provided, however, that in lieu of effecting any such repurchase, the Seller
will be permitted to deliver a Qualifying Substitute Mortgage Loan and to pay a
cash amount equal to the applicable Substitution Shortfall Amount, subject to
the terms and conditions of the Pooling and Servicing Agreement.
If the Seller is notified of a defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage
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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).
In addition, if any Mortgage Loan is secured by a Mortgage that does
not constitute a valid first lien upon the related Mortgaged Property,
including all buildings located thereon and all fixtures attached thereto, or
if a Mortgage is subject to something other than (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, (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 and (D) those
exceptions set forth on Schedule A to Exhibit C hereto (the exceptions set
forth in the foregoing clauses (A), (B),(C) and (D) collectively, "Permitted
Encumbrances"), or if the insurer that issued the Title Policy referred to in
clause (vi) of Exhibit C hereto in respect of any Mortgage Loan was not
qualified to do business in the state in which the related Mortgaged Property
is located, and in either case such failure materially and adversely affects
the interests of holder of Certificates, (any such failure that materially and
adversely affects the interests of holders of Certificates, also a "Material
Breach"), the Seller shall be required, at its option, to either (i) cure such
Material Breach in all material respects or (ii) repurchase the affected
Mortgage Loan, in each case, within the applicable Permitted Cure Period. If
any such Material Breach is not corrected or cured in all material respects
within the applicable Permitted Cure Period, the Seller shall, not later than
the last day of such Permitted Cure Period, (i) repurchase the affected
Mortgage Loan from the Purchaser or its assignee at the applicable Purchase
Price or (ii) if within the three-month period commencing on the closing date
(or within the two-year period commencing on the Closing Date if the related
Mortgage Loan is a "defective obligation" within the meaning of Section
860(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), at
its option, replace such Mortgage Loan with a Qualifying Substitute Mortgage
Loan and pay any corresponding Substitution Shortfall Amount. The Seller agrees
that any such repurchase or substitution shall be completed in accordance with
and 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 bye 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
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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.
(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 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 ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ 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 Cutoff 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;
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(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.
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 California, 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
-11-
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 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,
-12-
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. 33-94448 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated September
15, 1997, as supplemented by the prospectus supplement dated September 25, 1997
(the "Prospectus Supplement"), relating to the Registered Certificates;
"Memorandum" shall mean the private placement memorandum dated September 25,
1997, relating to the Non-Registered Certificates; "Computational Materials"
shall have the meaning assigned thereto in the no-action letter dated May 20,
1994 issued by the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") to ▇▇▇▇▇▇, 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") 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,
-13-
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 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.
-14-
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 GMAC Commercial Mortgage
Corporation, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Structured Finance Manager, facsimile no. (215)
328-1775, with a copy to GMAC Commercial Mortgage Corporation, or to such other
address or facsimile number as the Seller may designate in writing to the
Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it was a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without
-15-
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.
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.
-16-
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.
-17-
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.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
S-1
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.
[The Mortgage Loan Schedule consists of those loans marked "GACC" on
Schedule I to the Pooling and Servicing Agreement]
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 1997-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, 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 Permitted Encumbrances (as defined in
the Mortgage Loan Purchase Agreement of which this Exhibit C forms a part) do
not materially interfere with the security intended to be provided by the
related Mortgage, the current use or operation of the related Mortgaged
Property or the current ability of the Mortgaged Property to generate net
operating income sufficient to service the Mortgage Loan. If the Mortgaged
Property is operated as a nursing facility, a hospitality property or a
multifamily property, 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
C-1
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.
(vii) No Waivers by Seller of Material Defaults. The Seller has not
waived any material default, breach, violation or event of acceleration
existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid
offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of
the commencement of a proceeding for the condemnation of all or any material
portion of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(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
C-2
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. To the Seller's actual knowledge, all improvements
upon the related Mortgaged Property are insured against loss by hazards of
extended coverage in an amount (subject to a customary deductible) at least
equal to the lesser of the outstanding principal balance of such Mortgage Loan
and 100% of the full replacement cost of the improvements located on such
Mortgaged Property and the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. If any portion of the related
Mortgaged Property was, at the time of the origination of such Mortgage Loan,
in an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards, and flood insurance was available, a
flood insurance policy meeting any requirements of the then current guidelines
of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (1) the outstanding principal balance of such Mortgage Loan, (2)
the full insurable value of such Mortgaged Property, (3) the maximum amount of
insurance available under the National Flood Insurance Act of 1968, as amended,
and (4) 100% of the replacement cost of the improvements located on such
Mortgaged Property. In addition, the Mortgage requires the Mortgagor to
maintain in respect of the Mortgaged Property comprehensive general liability
insurance in amounts generally required by the Seller, and at least six months
rental or business interruption insurance, and all such insurance required by
the Mortgage to be maintained is in full force and effect. Each such insurance
policy re quires prior notice to the holder of the Mortgage of termination or
cancellation, and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property was
subject to one or more environmental site assessments (or an update of a
previously conducted assessment), which was (were) performed on behalf of the
Seller, or as to which the related report was delivered to the Seller in
connection with its origination or acquisition of such Mortgage Loan; and the
Seller, having made no independent inquiry other than reviewing the resulting
report(s) and/or employing an environmental consultant to perform the
assessment(s) referenced herein, has no knowledge of any material and adverse
environmental conditions or circumstance affecting such Mortgaged Property that
was not disclosed in the related report(s). The Seller has not taken any action
with respect to such Mortgage Loan or the related Mortgaged Property that could
subject the Purchaser, or its 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.
C-3
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will not
be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and
the Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage
File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties
would be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. The interest of
the related Mortgagor in the related Mortgaged Property consists of a fee
simple estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage referred
to in clause (iii) of Exhibit B constitutes the legal, valid and binding
assignment of such Mortgage from the relevant assignor to the Trustee. The
Assignment of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related
Mortgage, and each assignor thereunder has the full right to assign the same.
The related assignment of any Assignment of Leases, not included in a Mortgage,
executed and delivered in favor of the Trustee is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
(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.
C-4
(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) Adjustable Mortgage Rate. If the Mortgage Loan has an
adjustable Mortgage Rate, all of the terms of the related Mortgage Note
pertaining to interest rate adjustments, payment adjustments and adjustments of
the principal balance are enforceable and such adjustments will not affect the
priority of the lien of the related Mortgage, and all such adjustments and all
calculations made before the Cut-off Date were made correctly and in full
compliance with the terms of the related Mortgage and Mortgage Note.
(xxvii) 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.
C-5
(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.
(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
8.1 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 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)).
C-6
(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) [Intentionally Omitted.]
(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) [Intentionally Omitted.]
(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-7
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-8
SCHEDULE A TO EXHIBIT C
1. Willow Oaks Shopping Center (Loan No. GMAC 1040)
Lease to tenant Superfresh is not subordinated to the lien of the
Mortgage.
2. Denville Technical Center (Loan No. GMAC 3150)
Lien of the Mortgage is subject to the terms of an administrative consent
order relating to certain environmental contamination and remediation.
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of GMAC Commercial Mortgage Corporation ("GMACCM")
I, _________________, a _________________ of GMACCM (the "Seller"),
hereby certify as follows:
The Seller is a corporation duly organized and validly existing under
the laws of the State of California.
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation
or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of the Seller and his genuine
signature is set forth opposite his name:
Name Office Signature
----------------------- --------------------- --------------------------
----------------------- --------------------- --------------------------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of September 25, 1997
(the "Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute
such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
D-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of September __, 1997.
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 September __, 1997.
By:
--------------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE OF THE SELLER
Certificate of GMAC Commercial Mortgage Corporation
In connection with the execution and delivery by GMAC Commercial
Mortgage Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
September 25, 1997 (the "Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. and the Seller, the Seller hereby certifies that (i) the
representations and warranties of the Seller in the Purchase Agreement are true
and correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Purchase Agreement.
Certified this ___st day of September __, 1997.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:
--------------------------------
Name:
Title:
D-2-3
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
September 30, 1997
To: Persons on Annex A
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C1
Ladies and Gentlemen:
I am General Counsel to GMAC Commercial Mortgage Corporation (the
"Seller"). In that capacity, I am familiar with the issuance of certain
Mortgage Pass-Through Certificates, Series 1997-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 September 1, 1997 (the "Pooling
and Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc. (the
"Company") as depositor, the Seller as master servicer and special servicer and
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 Company from
ContiTrade Services L.L.C. ("▇▇▇▇▇"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of September 25,
1997 (the "▇▇▇▇▇ Mortgage Loan Purchase Agreement"), between ▇▇▇▇▇ and the
Company. Certain of the Mortgage Loans were purchased by the Company from the
Seller, pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of September 25, 1997 (the "GMACCM Mortgage Loan
Purchase Agreement"), between the Company and the Seller. Certain of the
Mortgage Loans were purchased by the Company from German American Capital
Corporation ("GACC"), pursuant to, and for the consideration described in, the
Mortgage Loan Purchase Agreement, dated as of September 25, 1997 (the "GACC
Mortgage Loan Purchase Agreement"), between GACC and the Company. The Pooling
and Servicing Agreement and the GMACCM Mortgage Loan Purchase Agreement are
referred to herein together as the "Agreements". Capitalized terms not defined
herein have the meanings set forth in the Agreements. This opinion is rendered
pursuant to Section 8(e) of the GMACCM Mortgage Loan Purchase Agreement.
The Company has sold the Class X, Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E and Class F Certificates (collectively, the
"Publicly Offered Certificates") to Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇
Brothers Inc. as representatives (the "Representatives") for themselves and the
other underwriters (the "Underwriters") named in the Underwriting Agreement,
D-3A-1
September 30, 1997 Page 2
dated as of September 25, 1997 (the "Underwriting Agreement"), among the
Company, the Seller, and the Representatives, and sold the Class G, Class H,
Class J, Class K, Class R-I, Class R-II and Class R-III Certificates
(collectively, the "Privately Offered Certificates") to Deutsche ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇ Bothers Inc. as initial purchasers (the "Initial
Purchasers") pursuant to the Certificate Purchase Agreement, dated as of
September 25, 1997 (the "Certificate Purchase Agreement"), among the Company,
the Seller and the Initial Purchasers.
In connection with rendering this opinion letter, I have examined or
have caused persons under my supervision to examine the Agreements and such
other records and other documents as I have deemed necessary. I have further
assumed that there is not and will not be any other agreement that materially
supplements or otherwise modifies the agreements expressed in the Agreements.
As to matters of fact, I have examined and relied upon representations of
parties contained in the Agreements and, where I have deemed appropriate,
representations and certifications of officers of the Company, 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 Company and] the Seller, had the corporate power and
authority to enter into and perform all obligations thereunder. As to such
parties, I also have assumed the due authorization by all requisite corporate
action, the due execution and delivery and the enforceability of such
documents. I have further assumed the conformity of the Mortgage Loans and
related documents to the requirements of the Agreements.
In rendering this opinion letter, I do not express any opinion
concerning any law other than the law of the Commonwealth of Pennsylvania, 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 Commonwealth of Pennsylvania 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 California, and has the requisite
power and authority, corporate or other, to own its properties and conduct its
business, as presently conducted by it, and to enter into and perform its
obligations under the Agreements.
D-3A-2
September 30, 1997 Page 3
2. Each of the Agreements 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 Agreements which purport to provide indemnification with
respect to securities law violations.
3. No consent, approval, authorization or order of the Commonwealth of
Pennsylvania, or federal court or governmental agency or body is required for
the consummation by the Seller of the transactions contemplated by the terms of
the Agreements, except for those consents, approvals, authorizations or orders
which previously have been obtained.
4. Neither the consummation of any of the transactions contemplated by, nor the
fulfillment by the Seller of any other of the terms of, the Agreements, will
result in a material breach of any term or provision of the charter or bylaws
of the Seller or any Commonwealth of Pennsylvania 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 Commonwealth of
Pennsylvania 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, except ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, is entitled
to rely hereon without 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,
▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
General Counsel
D-3A-3
Annex A
GMAC Commercial Mortgage Securities, Inc.
Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇ Brothers Inc.
Llama Company, ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Residential Funding Securities Corporation
LaSalle National Bank
ABN AMRO Bank N.V.
Fitch Investors Service, ▇.▇.
▇▇▇▇▇'▇ Investor's Service, Inc.
Standard & Poor's Ratings Services
D-3A-4
September 30, 1997 Page 1
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
September 30, 1997
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C1
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as special
counsel to GMAC Commercial Mortgage Corporation ("GMACCM"), pursuant to Section
8(e) of the Mortgage Loan Purchase Agreement, dated September 25, 1997 (the
"GMACCM Mortgage Loan Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. (the "Purchaser") and GMACCM 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 September 25, 1997, between the Purchaser and Deutsche ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇ Brothers Inc., relating to that certain Pooling and
Servicing Agreement, dated as of September 1, 1997, among GMACCM as special
servicer and master servicer (in such respective capacities, the "Special
Servicer" and the "Master Servicer"), Purchaser, LaSalle National Bank, as
trustee, and ABN AMRO Bank, N.V., as fiscal agent, (the "Pooling and Servicing
Agreement", and together with the GMACCM 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
Mortgage Loan Purchase Agreement, and (c) an executed copy of the Pooling and
Servicing Agreement.
D-3B-1
September 30, 1997 Page 2
In conducting our examination, we have assumed, without
investigation, the legal capacity of all natural persons, the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies and the authenticity of the originals of such
latter documents. We have, with your permission, also relied upon the opinion
of even date herewith of ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇, Esq., General Counsel to GMACCM,
addressed to you. As to any facts material to the opinions expressed herein
which were not independently established or verified, we have relied upon oral
or written statements and representations of officers and other representatives
of GMACCM and others.
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.
Based upon the matters stated herein and upon such investigation as
we have deemed necessary, we are of the opinion that the Agreements have been
duly authorized, executed and delivered by GMACCM and, upon due authorization,
execution and delivery by the Purchaser, will each constitute a valid, legal
and binding agreement of GMACCM, enforceable against GMACCM in accordance with
its respective terms, except as enforceability may be limited by (a)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization
or other similar laws relating to or affecting the enforcement of creditors
rights generally and (b) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law.
In rendering the opinions expressed above, we express no opinion
regarding any severability provision in the Agreements or regarding the legal,
valid and binding effect or the enforceability of any indemnification provision
in the Agreements to the extent that any such provisions may be deemed to cover
matters under the federal securities laws. The opinions expressed above are
subject to the further qualification that certain of the remedial provisions in
the Agreements may be limited or rendered ineffective or unenforceable in whole
or in part under the laws of the State of New York (but the inclusion of such
provisions does not make the remedies provided by the Agreements inadequate for
the practical realization of the rights and benefits purported to be provided
thereby, except for the economic consequences of procedural or other delay).
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 GMACCM, the Purchaser, counsel to the
Purchaser and your representatives, during which the contents of
D-3B-2
September 30, 1997 Page 3
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 ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ 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-3