EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of December 10, 2002, between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company as
Mortgage Loan Seller (the "Mortgage Loan Seller") and GMAC Commercial Mortgage
Securities, Inc. as purchaser (the "Purchaser").
Subject to the terms and conditions hereof, the Mortgage Loan Seller
desires to sell, assign, transfer and otherwise convey to the Purchaser, and the
Purchaser desires to purchase, the multifamily and commercial mortgage loans
(the "Mortgage Loans") identified on the schedule annexed hereto as Exhibit A
(the "Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other multifamily and commercial mortgage loans, to a trust fund (the
"Trust Fund") to be formed by the Purchaser, beneficial ownership of which will
be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by ▇▇▇▇▇'▇
Investors Service, Inc., Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and Fitch Ratings (together, the "Rating Agencies").
Certain classes of the Certificates (the "Registered Certificates") will be
registered under the Securities Act of 1933, as amended (the "Securities Act").
The Trust Fund will be created and the Certificates will be issued pursuant to a
pooling and servicing agreement to be dated as of December 1, 2002 (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
▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee (in such capacity, the "Trustee").
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Pooling and Servicing Agreement as in effect on the Closing Date.
The Purchaser intends to sell the Class A-1, Class A-2, Class B, Class
C, Class D and Class E Certificates to ▇▇▇▇▇▇▇, Sachs & Co., Deutsche Bank
Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (together, the
"Underwriters"), pursuant to an underwriting agreement dated the date hereof
(the "Underwriting Agreement"). The Purchaser intends to sell the Class X-1,
Class X-2, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O-1, Class O-2 and Class P Certificates to ▇▇▇▇▇▇▇, Sachs & Co.,
Deutsche Bank Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (in such
capacity, each an "Initial Purchaser") pursuant to a certificate purchase
agreement, dated the date hereof (the "Certificate Purchase Agreement"). The
Purchaser intends to sell the Class R-I, Class R-II and Class R-III Certificates
to a Qualified Institutional Buyer (in such capacity, an "Initial Purchaser").
The Class X-1, Class X-2, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O-1, Class O-2, Class P, Class R-I, Class R-II and Class
R-III Certificates are collectively referred to as the "Non-Registered
Certificates."
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
Subject to the terms and conditions hereof, the Mortgage Loan Seller
agrees to sell, assign, transfer and otherwise convey to the Purchaser, and the
Purchaser agrees to purchase, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on December 19, 2002 or such other date as shall
be mutually acceptable to the parties hereto (the "Closing Date"). The "Cut-off
Date" with respect to any Mortgage Loan is the Due Date for such Mortgage Loan
in December 2002. As of the close of business on their respective Cut-off Dates
(which Cut-off Dates may occur after the Closing 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 $3,525,269, subject to a variance of plus or
minus 5%. The purchase price for the Mortgage Loans shall be determined by the
parties pursuant to an agreed upon schedule.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the
Mortgage Loan Seller of the purchase price referred to in Section 1 hereof
(exclusive of any applicable holdback for transaction expenses), the Mortgage
Loan Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse, all the right, title and interest of the
Mortgage Loan 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 Mortgage Loan Seller on or with respect to the Mortgage Loans
after the Cut-off Date for each such Mortgage Loan, together with all of the
Mortgage Loan 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 Mortgage Loan
Seller, the Mortgage Loan Seller shall deliver or cause to be delivered to or at
the direction of the Purchaser) all scheduled payments of principal and interest
due on the Mortgage Loans after the Cut-off Date for each such Mortgage Loan,
and all other recoveries of principal and interest collected thereon after such
Cut-off Date. All scheduled payments of principal and interest due thereon on or
before the Cut-off Date for each Mortgage Loan and collected after such Cut-off
Date shall belong to the Mortgage Loan Seller.
(b) In connection with the Mortgage Loan Seller's assignment pursuant
to subsection (a) above, the Mortgage Loan Seller hereby agrees that, at least
five (5) Business Days before the Closing Date, it shall have delivered to and
deposited with the Trustee, the Mortgage File (as described on Exhibit B hereto)
for each Mortgage Loan so assigned to the extent that such Mortgage File was
delivered to the Mortgage Loan Seller by GMAC Commercial Mortgage Corporation.
On the Closing Date, upon notification from the Mortgage Loan Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdback
for transaction expenses) has been received by the Mortgage Loan Seller, the
Trustee shall be authorized to release to the Purchaser or its designee all of
the Mortgage Files in the Trustee's possession relating to the Mortgage Loans.
(c) All documents and records in the Mortgage Loan 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
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accordance with Exhibit B (all such other documents and records, as to any
Mortgage Loan, including, without limitation, and if applicable, a copy of the
Mortgage Note, a copy of the Mortgage, a copy of the Security Agreement,
property insurance information, property inspections, financial statements
(subject to and in accordance with any applicable confidentiality agreements),
escrow analysis, tax bills, appraisals, environmental reports, engineering
reports, the asset summary, financial information on the borrower, sponsor and
guarantor, a copy of letters of credit and a copy of environmental insurance
policies, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Mortgage Loan 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 Mortgage Loan 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 Mortgage Loan Seller shall deliver a copy of the related Servicing
File to the Master Servicer.
(d) The Mortgage Loan Seller and the Purchaser intend the transfer of
the Mortgage Loans hereunder to be a true sale by the Mortgage Loan Seller to
the Purchaser that is absolute and irrevocable and that provides the Purchaser
with full control of the Mortgage Loans.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Mortgage Loan 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 Mortgage Loan Seller's
representations, warranties and covenants set forth in or contemplated by
Section 4.
SECTION 4. Representations, Warranties and Covenants of the Mortgage Loan
Seller.
(a) Reserved.
(b) The Mortgage Loan Seller, as of the date hereof, hereby represents
and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a limited partnership, duly
organized, validly existing and in good standing under the laws of the
State of New York, and is in compliance with the laws of each State to
the extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Mortgage
Loan Seller, and the performance and compliance with the terms of this
Agreement by the Mortgage Loan Seller, will not violate the Mortgage
Loan 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
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or other instrument to which it is a party or which is applicable to it
or any of its assets, in each case which materially and adversely
affects the ability of the Mortgage Loan Seller to carry out the
transactions contemplated by this Agreement.
(iii) The Mortgage Loan 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 Mortgage Loan Seller, enforceable against the
Mortgage Loan 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 Mortgage Loan 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 Mortgage
Loan Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Mortgage Loan Seller
to perform its obligations under this Agreement or the financial
condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to which the Mortgage
Loan Seller has received service of process or, to the best of the
Mortgage Loan Seller's knowledge, threatened against the Mortgage Loan
Seller the outcome of which, in the Mortgage Loan Seller's good faith
and reasonable judgment, could reasonably be expected to prohibit the
Mortgage Loan Seller from entering into this Agreement or materially
and adversely affect the ability of the Mortgage Loan Seller to perform
its obligations under this Agreement or the financial condition of the
Mortgage Loan Seller.
(vii) The Mortgage Loan 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 by the Mortgage Loan Seller to the
Purchaser or the consummation of any of the other transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law (including, with
respect to any bulk sale laws), for the execution, delivery and
performance of or compliance by the Mortgage Loan Seller with this
Agreement, or the
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consummation by the Mortgage Loan Seller of any transaction
contemplated hereby, other than (1) the filing or recording of
financing statements, instruments of assignment and other similar
documents necessary in connection with Mortgage Loan 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
Mortgage Loan Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in subsection
(b) above which materially and adversely affects the interests of the Purchaser,
the party discovering such breach shall give prompt written notice to the other
party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the 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, in each case which materially and adversely affects the
ability of the Purchaser to carry out the transactions contemplated by
this Agreement.
(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 Mortgage Loan 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, (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 Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not
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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 Mortgage Loan Seller, the
Underwriters, the Initial Purchasers and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
transactions contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Mortgage Loan Seller, the party
discovering such breach shall give prompt written notice to the other party
hereto.
SECTION 6. Reserved.
SECTION 7. Closing.
(a) The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage Loan
Seller and the Purchaser specified herein shall be true and correct as
of the Closing Date;
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(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and reasonably acceptable
to the Purchaser, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Mortgage Loan 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) 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 Mortgage Loan Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date; and
(v) The Underwriting Agreement shall not 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:
(i) this Agreement duly executed and delivered by the Purchaser
and the Mortgage Loan Seller;
(ii) an Officer's Certificate substantially in the form of Exhibit
C-1 hereto, executed by the Secretary or an assistant secretary of the
Mortgage Loan Seller, and dated the Closing Date, and upon which the
Purchaser, each Underwriter and each Initial Purchaser may rely,
attaching thereto as exhibits the organizational documents of the
Mortgage Loan Seller;
(iii) a certificate of good standing regarding the Mortgage Loan
Seller from the Secretary of State for the State of New York, dated not
earlier than 30 days prior to the Closing Date;
(iv) a certificate of the Mortgage Loan Seller substantially in
the form of Exhibit C-2 hereto, executed by an executive officer or
authorized signatory of the Mortgage Loan Seller and dated the Closing
Date, and upon which the Purchaser, each Underwriter and each Initial
Purchaser may rely;
(v) a written opinion of counsel for the Mortgage Loan Seller,
substantially in a form of Exhibit C-3 hereto and subject to such
reasonable assumptions and qualifications as may be requested by
counsel for the Mortgage Loan Seller and
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acceptable to counsel for the Purchaser, dated the Closing Date and
addressed to the Purchaser, each Underwriter and each Initial
Purchaser;
(vi) to the extent required by any of the Rating Agencies, a
written opinion of counsel for the Purchaser regarding the
characterization of the transfer of the Mortgage Loans to the Purchaser
as a "true sale", subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Purchaser, dated
the Closing Date and addressed to the Rating Agencies, the Purchaser,
each Underwriter and the Trustee;
(vii) the Supplemental Agreement, dated as of the date hereof,
between GMAC Commercial Mortgage Corporation ("GMACCM") and the
Mortgage Loan Seller (the "Supplemental Agreement"), duly executed and
delivered by GMACCM and the Mortgage Loan Seller; and
(viii) such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Reserved.
SECTION 10. Assignment of Supplemental Agreement.
In connection with the transfer of the Mortgage Loans hereunder, the
Mortgage Loan Seller hereby assigns to the Purchaser all of the Mortgage Loan
Seller's right, title and interest in and to the Supplemental 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 Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Company, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇▇▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address or facsimile
number as the Mortgage Loan Seller may designate in writing to the Purchaser.
SECTION 12. Reserved.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Mortgage Loan Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser or its designee.
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SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF 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 Mortgage Loan 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 Mortgage Loan Seller under this
Agreement shall not be assigned by the Mortgage Loan Seller without the prior
written consent of the Purchaser, except that any person into which the Mortgage
Loan Seller may be merged or consolidated, or any corporation or other entity
resulting from any merger, conversion or consolidation to which the Mortgage
Loan Seller is a party, or any person succeeding to all or substantially all of
the business of the Mortgage Loan Seller, shall be the successor to the Mortgage
Loan 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
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and be enforceable by the Mortgage Loan Seller and the Purchaser, and their
permitted successors and assigns.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY
By: ▇▇▇▇▇▇▇ Sachs Real Estate Funding Corp.,
its General Partner
By:
------------------------------
Name:
Title:
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By:
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Acknowledged and Agreed with respect to Section 10:
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-2
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall collectively consist of
the following documents:
(1) the original Mortgage Note, endorsed by the most recent
endorsee prior to the Trustee or, if none, by the originator, without recourse,
in blank or to the order of the Trustee in the following form: "Pay to the order
of ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as trustee for the
registered holders of GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2002-C3, without recourse";
(2) 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;
(3) the original or a copy of the 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);
(4) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(5) 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 (3) above;
(6) an original or a 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;
(7) 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 (3) above;
(8) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon, where
appropriate, in those
B-1
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;
(9) the original or a copy of the lender's title insurance policy,
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;
(10) the original or a copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan which was in the possession of the
Mortgage Loan Seller at the time the Mortgage Files were delivered to the
Trustee 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;
(11) (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 Mortgage Loan Seller (or its
agent) at the time the Mortgage Files were delivered and (B) if any such
security interest is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the Mortgage Loan 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;
(12) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to above was
not signed by the Mortgagor;
(13) the related Ground Lease or a copy thereof, if any;
(14) if the Mortgage Loan is a Credit Lease Loan, an original of
the credit lease enhancement insurance policy, if any, obtained with respect to
such Mortgage Loan and an original of the residual value insurance policy, if
any, obtained with respect to such Mortgage Loan;
(15) the original or a copy of any lockbox agreement or deposit
account or similar agreement;
(16) the original or a copy of any intercreditor agreement with
respect to the Mortgage Loan;
(17) the original or a copy of any Environmental Policy;
(18) the original or a copy (if the original is held by the Master
Servicer) of any letter of credit and any related transfer documents;
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(19) for a hospitality property, copies of franchise agreements,
if any, and franchisor comfort letters, if any;
(20) a checklist of all documents included in the Mortgage File;
and
(21) any additional documents required to be added to the Mortgage
File pursuant to this Agreement; 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 (3), (5), (7) and (10)(B), may be in the form
of one or more instruments in recordable form in any applicable filing offices.
B-3
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
Certificate of Officer of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company (the "Mortgage Loan
Seller")
I, __________________________ , a __________________________of the
Mortgage Loan Seller, hereby certify as follows:
The Mortgage Loan Seller is a limited partnership duly organized and
validly existing under the laws of the State of New York.
Attached hereto as Exhibit I are true and correct copies of the
organizational documents of the Mortgage Loan Seller which organizational
documents 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 Mortgage Loan Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Mortgage Loan 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 Supplemental Agreement, dated December 10, 2002 (the
"Supplemental Agreement") between GMAC Commercial Mortgage Corporation and the
Mortgage Loan Seller, and/or the Mortgage Loan Purchase Agreement, dated
December 10, 2002 (the "Mortgage Loan Purchase Agreement"), between the Mortgage
Loan Seller and GMAC Commercial Mortgage Securities, Inc. providing for the
purchase by GMAC Commercial Mortgage Securities, Inc. from the Mortgage Loan
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 Mortgage Loan Purchase Agreement.
C-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
______________, 2002.
By:
----------------------------
Name:
Title:
I, [name], [title], hereby certify that ______________________ is a
duly elected or appointed, as the case may be, qualified and acting that
______________________ of the Mortgage Loan Seller and that the signature
appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
________________, 2002.
By:
----------------------------
Name:
Title:
C-1-2
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of ▇▇▇▇▇▇▇ Sachs Mortgage Company
In connection with the execution and delivery by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Company (the "Mortgage Loan Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
December 10, 2002 (the "Mortgage Loan Purchase Agreement"), between GMAC
Commercial Mortgage Securities, Inc. and the Mortgage Loan Seller, the Mortgage
Loan Seller hereby certifies that (i) the representations and warranties of the
Mortgage Loan Seller in the Mortgage Loan 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 Mortgage Loan Seller has, in
all material respects, complied with all the agreements and satisfied all the
conditions on its part set forth in the Mortgage Loan Purchase Agreement 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 Mortgage Loan
Purchase Agreement.
Certified this ___ day of ________________, 2002.
▇▇▇▇▇▇▇ SACHS MORTGAGE COMPANY
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Funding Corp.,
its General Partner
By:
------------------------------
Name:
Title:
C-2-1
EXHIBIT C-3
FORM OF OPINION OF COUNSEL TO THE SELLER
December 19, 2002
GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
▇▇▇▇▇▇▇, Sachs & Co.
Deutsche Bank Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Fitch Ratings
▇▇▇▇▇'▇ Investors Service, Inc.
Standard & Poor's Ratings Services
▇▇▇▇▇ Fargo Bank Minnesota, National Association
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2002-C3
Ladies and Gentlemen:
I am Counsel to German American Capital Corporation (the "Seller"). In
that capacity, I am familiar with the issuance of certain Mortgage Pass-Through
Certificates, Series 2002-C3 (the "Certificates"), evidencing undivided
interests in a trust fund (the "Trust Fund") consisting primarily of certain
mortgage loans (the "Mortgage Loans"), pursuant to a Pooling and Servicing
Agreement, dated as of December 1, 2002 (the "Pooling and Servicing Agreement"),
among GMAC Commercial Mortgage Securities, Inc. as depositor (the "Depositor"),
GMAC Commercial Mortgage Corporation ("GMACCM") as master servicer and special
servicer and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as trustee (the
"Trustee").
Certain of the Mortgage Loans were purchased by the Depositor from the
Seller, pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of June 27, 2001 (the "Mortgage Loan Purchase
Agreement"), between the Seller and the Depositor. In connection with the
transactions described above, the Seller and GMACCM have entered into a
Supplemental Agreement, dated as of December 10, 2002 (the "Supplemental
Agreement"), in order to facilitate such transactions and in contemplation of
the assignment by the Seller to the Depositor of all of its right, title and
interest in and to the Supplemental Agreement. The Mortgage Loan Purchase
Agreement and the Supplemental Agreement are referred to herein as the
"Agreements." Capitalized terms not defined herein have the meanings set forth
in the Agreement. This opinion is rendered pursuant to Section 8(v) of the
Agreement.
C-3-1
In connection with rendering this opinion letter, I have examined or
have caused persons under my supervision to examine the Agreements and such
other records and other documents as I have deemed necessary. I have further
assumed that there is not and will not be any other agreement that materially
supplements or otherwise modifies the agreements expressed in the Agreements. As
to matters of fact, I have examined and relied upon representations of parties
contained in the Agreements and, where I have deemed appropriate,
representations and certifications of officers of GMACCM, the Depositor, the
Seller, the Trustee, other transaction participants or public officials. I have
assumed the authenticity of all documents submitted to me as originals, the
genuineness of all signatures other than officers of the Seller and the
conformity to the originals of all documents submitted to me as copies. I have
assumed that all parties, except for the Seller, had the corporate power and
authority to enter into and perform all obligations thereunder. As to such
parties, I also have assumed the due authorization by all requisite corporate
action, the due execution and delivery and the enforceability of such documents.
I have further assumed the conformity of the Mortgage Loans and related
documents to the requirements of the Agreements.
In rendering this opinion letter, I do not express any opinion
concerning any law other than the law of the State of New York and the federal
law of the United States, and I do not express any opinion concerning the
application of the "doing business" laws or the securities laws of any
jurisdiction other than the federal securities laws of the United States. To the
extent that any of the matters upon which I am opining herein are governed by
laws ("Other Laws") other than the laws identified in the preceding sentence, I
have assumed with your permission and without independent verification or
investigation as to the reasonableness of such assumption, that such Other Laws
and judicial interpretation thereof do not vary in any respect material to this
opinion from the corresponding laws of the State of New York and judicial
interpretations thereof. I do not express any opinion on any issue not expressly
addressed below.
Based upon the foregoing, I am of the opinion that:
1. The Seller is duly incorporated and is validly existing as a limited
partnership in good standing under the laws of the State of New York and has the
requisite corporate power and authority to enter into and perform its
obligations under the Agreements.
2. The Agreements have been duly and validly authorized, executed and
delivered by the Seller and, upon due authorization, execution and delivery by
the other parties thereto, will constitute the valid, legal and binding
agreements of the Seller enforceable against the Seller in accordance with their
terms, except as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the rights of creditors, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and (iii) public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of the
Agreements which purport or are construed to provide indemnification with
respect to securities law violations.
3. No consent, approval, authorization or order of a State of New York
or federal court or governmental agency or body is required for the consummation
by the Seller of the
C-3-2
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 State of New York or federal statute or regulation
or conflict with or result in a material breach or violation of any order or
regulation of any State of New York or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the Seller.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon without my
prior written consent. Copies of this opinion letter may not be furnished to any
other person or entity, nor may any portion of this opinion letter be quoted,
circulated or referred to in any other document without my prior written
consent.
Very truly yours,
C-3-3