EXECUTION COPY
CO-LENDER AGREEMENT
This Co-Lender Agreement (this "Agreement") is entered into as
of the 1st day of February, 2002 by and among Xxxxx Fargo Bank Minnesota, N.A.,
having an address at 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000,
as trustee for GMAC Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-C1 (together with its successors and
assigns, "Lead Lender"), Xxxxxxx Sachs Mortgage Company, having an address at 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and
assigns, "Co-Lender") and GMAC Commercial Mortgage Corporation, having an
address at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, as master servicer
(together with its successors and assigns in such capacity, "Master Servicer"
and special servicer (together with its successors and assigns in such capacity,
"Special Servicer").
RECITALS:
Pursuant to that certain Deed of Trust, Security Agreement, Assignment of Leases
and Rents and Fixture Filing dated August 30, 2001 (as modified by the
Modification Agreement described below, the "Deed of Trust") executed by Vestar
Arizona XVII, LLC and Vestar Arizona XXVI, LLC, each an Arizona limited
liability company (collectively, the "Borrower") to Lawyers Title Insurance
Corporation, as trustee (the "Trustee") for the benefit of Archon Financial,
L.P. (the "Originator"), and that certain Promissory Note (the "Original Note")
dated August 30, 2001 from the Borrower to the Originator, the Originator has
made a certain mortgage loan in the original principal amount of Twenty-Nine
Million Dollars ($29,000,000.00) (the "Original Loan") to the Borrower. The
Originator subsequently sold, transferred and assigned the Original Loan to
Co-Lender and pursuant to that certain Modification Agreement dated as of
December 14, 2001 between Co-Lender and the Borrower, the Original Loan has been
split into a loan in the amount of $14,500,000 ("Loan A1") evidenced by a
promissory note in the amount of $14,500,000 ("Note A1") and a second loan in
the amount of $14,500,000 ("Loan A2" and, together with Loan A1, the "Loans")
evidenced by a promissory note in the amount of $14,500,000 ("Note A2").
Co-Lender subsequently sold, transferred and assigned Note A1 to GMAC Commercial
Mortgage Securities, Inc. (the "Depositor") pursuant to that certain Loan Sale
Agreement dated as of January 25, 2002 by and between Co-Lender and the
Depositor. Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Deed of Trust or the Pooling Agreement (as defined
below). The Loans are secured by, among other things, Mesa Grand and Mesa
Spectrum Shopping Centers in Mesa, Arizona, more particularly described in the
Deed of Trust (the "Mortgaged Properties").
The Depositor has transferred and assigned Loan A1 to Lead
Lender pursuant to that certain Pooling and Servicing Agreement, dated as of
February 1, 2002 (the "Pooling Agreement") by and among the Depositor as seller,
the Master Servicer, the Special Servicer and the Lead Lender as trustee.
NOW, THEREFORE, in consideration of the foregoing and for
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant, agree, represent and warrant as
follows:
1. Payments.
(a) Payments from the Borrower shall be collected by the Master
Servicer, or in the event that Loan A1 or Loan A2 is a Specially Serviced
Mortgage Loan, Special Servicer and applied pari passu to Loan A1 and Loan A2,
in accordance with the provisions of the Deed of Trust. Payments applied to Loan
A1 shall be deposited and applied in accordance with the Pooling Agreement.
Co-Lender shall be entitled to all payments due on Note A2 and payable to the
Co-Lender in accordance with the Pooling Agreement.
(b) In the event that the Master Servicer or the Special Servicer, as
applicable, receives an aggregate payment of less than the aggregate amount due
under the Loans at any particular time, Lead Lender and Co-Lender hereby
covenant and agree that Co-Lender shall receive from the Master Servicer an
amount equal to Note A2's pro rata share of such payment, based on the
respective outstanding principal balances of Note A1 and Note A2. All expenses,
losses and shortfalls relating to the Loans including, without limitation,
losses of principal or interest, unrecoverable Advances, interest on Advances,
Special Servicing Fees and Liquidation Fees (including any such fees related to
Note A2), will be allocated as described in the Pooling Agreement. (c) The
Co-Lender shall provide wire instructions to the Master Servicer no less than
five Business Days prior to any Master Servicer Remittance Date (which wire
instructions may be in the form of a standing order applicable to all subsequent
Master Servicer Remittance Dates).
(c) The Co-Lender shall provide wire instructions to the Master
Servicer no less than five Business Days prior to any Master Servicer Remittance
Date (which wire instructions may be in the form of a standing order applicable
to all subsequent Master Servicer Remittance Dates).
2. Administration and Servicing of the Loans.
(a) For so long as either Note A1 or Note A2 is included in a
Securitization the Master Servicer, or in the event that Loan A1 or Loan A2 is a
Specially Serviced Mortgage Loan, Special Servicer on behalf of the Lead Lender
shall administer Loan A1 and Loan A2 consistent with the terms of this Agreement
and the Pooling Agreement. A "Securitization" shall mean an issuance of
securities representing beneficial interests in one or more mortgage loans,
including Notes. The holder of Note A2 will not be permitted to terminate the
Master Servicer or Special Servicer as servicer or special servicer of Note A2.
Pursuant to the Pooling Agreement, all rights of the mortgagee under the Loans
will be exercised by the Master Servicer or Special Servicer, on behalf of the
Trust Fund and the holder of Note A2, and Co-Lender specifically acknowledges
and agrees to Section 3.24 of the Pooling Agreement.
(b) It is intended by the parties hereto that the Loans shall,
consistent with and subject to the provisions of this Agreement and the Pooling
Agreement, be serviced by the Servicer as a single loan; provided that, among
other things, (i) funds collected by the Master Servicer or the Special
Servicer, as applicable, and applied to Loan A2 shall be deposited and disbursed
in accordance with the provisions hereof and the Pooling Agreement, (ii)
compensation shall be paid to the Master Servicer and the Special Servicer with
respect to Loan A2 as provided below in paragraph 2(c), (iii) the Master
Servicer and the Special Servicer shall have no obligation to make Delinquency
Advances with respect to Loan A2, and (iv) except as otherwise specified herein
or in the Pooling Agreement, the Master Servicer and the Special Servicer shall
have no reporting requirement with respect to Loan A2 other than to deliver to
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Co-Lender copies of all the reports which it delivers to Lead Lender under the
Pooling Agreement. The Master Servicer shall, on behalf of Lead Lender,
distribute to Co-Lender, on the Master Servicer Remittance Date, all payments
due to Co-Lender under Note A2, to the extent that funds received in respect of
the Loans are allocated to amounts due under Note A2 in accordance with
Paragraph 1 hereof and the Pooling Agreement. Lead Lender and Master Servicer
shall provide Co-Lender, promptly upon delivery or receipt by Lead Lender or
Master Servicer in its capacity as trustee or servicer under the Pooling
Agreement, respectively, with copies of all documents, certificates,
instruments, notices and correspondence sent or received by Lead Lender or
Master Servicer with respect to the Loans, and Master Servicer shall deliver
such information with respect to the Loans as may reasonably be requested by
Co-Lender, or a servicer acting on its behalf, to permit customary reporting
with respect to the Loans in a Securitization involving Note A2 (based on
reporting generally consistent with the Master Servicer's reporting obligations
under the Pooling Agreement, with such modifications as may be reasonably
requested by Co-Lender); provided that neither Lead Lender nor Master Servicer
shall be required pursuant hereto to deliver information to Co-Lender with
respect to mortgage loans other than the Loans or information of a scope or
nature that is materially different from that which the Master Servicer would be
entitled to receive from a subservicer of a comparable mortgage loan under the
Pooling Agreement and related subservicing agreements (including without
limitation CMSA reports on the Companion Loan and any financial statements or
other financial information received from the borrower). Additionally, Master
Servicer on behalf of Lead Lender shall provide Co-Lender with written notice of
any defaults by the Borrower under the Loans. Master Servicer, on behalf of Lead
Lender, shall also make available to Co-Lender copies of all financial
statements of the Borrower and all other documents, certificates, reports and
financial statements received by Master Servicer or Lead Lender pursuant to the
Loan Documents.
(c) Co-Lender shall pay to Master Servicer under the Pooling
Agreement, as compensation for servicing Loan A2, a fee (the "Servicing Fee")
equal to the product of 0.03% per annum and the Note A2 principal balance on
which interest accrues. In addition, in the event that Loan A2 becomes a
Specially Serviced Mortgage Loan, Co-Lender shall pay to Special Servicer under
the Pooling Agreement a fee (the "Special Servicing Fee") equal to the product
of 0.250% per annum and the Note A2 principal balance on which interest accrues.
The Servicing Fee and the Special Servicing Fee shall accrue on the same basis
as the related interest payment on Note A2 is computed. Loan A2 shall be
considered a Specially Serviced Mortgage Loan if Loan A1 is determined to be a
Specially Serviced Mortgage Loan under the Pooling Agreement. The Special
Servicer agrees to cause Loan A2 to be specially serviced for the benefit of the
Co-Lender in accordance with the terms and provisions set forth in the Pooling
Agreement whenever Loan A1 is a Specially Serviced Mortgage Loan. Whenever Loan
A1 becomes a Specially Serviced Mortgage Loan, any Workout Fee or Liquidation
Fee (each as defined in the Pooling Agreement) payable to the Special Servicer
under the Pooling Agreement shall be allocated pro rata between the proceeds of
Loan A1 and Loan A2 payable to the holders of Note A1 and Note A2, respectively.
(d) If (i) Master Servicer shall pay any amount to Co-Lender pursuant
hereto in the belief or expectation that a related payment has been made or will
be received or collected in connection with the Loans and (ii) such related
payment is not received or collected by Master Servicer, then Co-Lender will
promptly on demand by Master Servicer return such amount to
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Master Servicer. If Master Servicer determines at any time that any amount
received or collected by Master Servicer in respect of the Loans must be
returned to the Borrower or paid to any other person or entity pursuant to any
insolvency law or otherwise, notwithstanding any other provision of this
Agreement, Master Servicer shall not be required to distribute any portion
thereof to Co-Lender, and Co-Lender will promptly on demand by Master Servicer
repay, which obligation shall survive the termination of this Agreement, any
portion thereof that Master Servicer shall have distributed to Co-Lender,
together with interest thereon at such rate, if any, as Master Servicer may pay
to the Borrower or such other person or entity with respect thereto.
(e) Subject to the Pooling Agreement, Master Servicer, or in the event
that Loan A1 or Loan A2 is a Specially Serviced Mortgage Loan, Special Servicer
on behalf of Lead Lender and Co-Lender shall have the exclusive right and
obligation to (i) administer, service and make all decisions and determinations
regarding the Loans, and (ii) enforce the Loan Documents. Without limiting the
generality of the preceding sentence, the Master Servicer, or in the event that
Loan A1 or Loan A2 is a Specially Serviced Mortgage Loan, Special Servicer may
agree to any modification, waiver or amendment of any term of, forgive interest
on and principal of, capitalize interest on, permit the release, addition or
substitution of collateral securing, and/or permit the release of the Borrower
on or any guarantor of any Loans it is required to service and administer
hereunder, without the consent of the Co-Lender, subject, however, to the terms
of the Pooling Agreement.
(f) In taking or refraining from taking any action permitted by
Section 2(e) hereof, Lead Lender, Master Servicer and Special Servicer shall
each be subject to the same degree of care with respect to the administration
and servicing of the Loans as is consistent with the Pooling Agreement;
provided, however, that Lead Lender, Master Servicer and Special Servicer shall
not be liable to Co-Lender, and Master Servicer and Special Servicer shall not
be liable to Lead Lender or Co-Lender or to each other, with respect to anything
Lead Lender or Master Servicer or Special Servicer may do or omit to do in
connection with the Loans in the absence of negligence or willful misconduct on
such party's part in the administration or servicing of the Loans.
(g) In the event that Master Servicer or Special Servicer, on behalf
of Lead Lender, has advanced any funds or incurred any expenses with respect to
the Loans which would otherwise be reimbursable to Master Servicer or Special
Servicer under the Pooling Agreement, and the proceeds of, and receipts from,
the Loans or the Mortgaged Properties are not sufficient to reimburse such
advances and expenses, Co-Lender shall reimburse Master Servicer or Special
Servicer, as applicable, in an amount equal to its pro rata share (based upon
the outstanding principal balance of the respective Notes) of such advances or
expenses. This reimbursement right shall not limit the Master Servicer's or
Special Servicer's rights to reimbursement under the Pooling Agreement. To the
extent the Master Servicer or Special Servicer has received under the Pooling
Agreement and from Co-Lender hereunder an aggregate amount in excess of the
amount for which the Master Servicer or Special Servicer, as the case may be, is
entitled to be reimbursed under the Pooling Agreement, Master Servicer or
Special Servicer, as applicable, will remit the amount of such excess to Lead
Lender for distribution of such amount under the Pooling Agreement.
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(h) If neither Note A1 nor Note A2 is included in a Securitization,
unless otherwise agreed by the holders of both such Notes, the holder of Note A1
shall have the exclusive right and obligation to administer and exercise rights
under the Loans and enforce the Loan Documents except that any amendment or
modification of Note A2, and any amendment or modification of the Loan Documents
(other than Note A2) that materially adversely affects the holder of Note A2,
including the ability to receive timely payments of principal and interest,
shall require consent of the holder of Note A2.
3. Enforcement of the Loans. Co-Lender hereby authorizes Lead Lender
to take legal action to enforce or protect Co-Lender's and Lead Lender's
interests with respect to the Loans and the Mortgaged Properties. If Lead Lender
(or Master Servicer or Special Servicer on behalf of Lead Lender) incurs any
liabilities, costs, fees or expenses (including, without limitation, those for
in-house or outside legal services), or makes any protective or other property
advances on behalf of the Borrower, in connection with the Loans, with any
actual or proposed amendment or waiver of any term thereof or restructuring or
refinancing thereof or with any effort to enforce or protect Co-Lender's or Lead
Lender's rights or interests with respect thereto, then Co-Lender will reimburse
Lead Lender (or Master Servicer or Special Servicer, as applicable) on demand in
an amount equal to its pro rata share based upon the outstanding principal
balance of Note A1 and Note A2, to the extent such costs are not reimbursed by
or on behalf of the Borrower, which reimbursement obligation will survive the
termination of this Agreement. If Lead Lender (or Master Servicer or Special
Servicer, on behalf of Lead Lender) incurs any liabilities for special servicing
fees in connection with the loans, Co-Lender will reimburse Lead Lender (or
Master Servicer or Special Servicer, as applicable) in an amount equal to its
pro rata share based upon the outstanding principal balance of the Notes. Any
such expenses may be netted by Lead Lender against distributions on Note A2. To
the extent that Co-Lender advances any such costs prior to their being
reimbursed by or on behalf of Borrower and such costs are subsequently recovered
by the Lead Lender, Co-Lender shall receive a pro rata reimbursement from such
recovery.
4. Assignment of Notes; Compliance with Pooling Agreement. The holder
of Note A1 shall have the right to assign Note A1, and the holder of Note A2
shall have the right to assign Note A2; provided that (a) the assignee of Note
A1 or Note A2, as applicable, shall agree in writing to be bound by the terms of
this Agreement, (b) such assignee is a Qualified Institutional Lender (as
defined below) and (c) the Master Servicer and the Special Servicer have been
notified in writing of such assignment. Each party hereto shall notify the other
party if it shall assign Note A1 or Note A2, as applicable. "Qualified
Institutional Lender" means any legal person, including, without limitation, any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof (a "Person") who is
(A) (i) a bank, savings and loan association, investment bank, insurance
company, real estate investment trust, trust company, commercial credit
corporation, pension plan, pension fund or pension advisory firm, mutual fund,
government entity or plan; or (ii) a trustee in connection with a
Securitization, so long as such trustee or the servicer therefor is a Person
that otherwise would be a Qualified Institutional Lender the other provisions of
this definition, or (iii) an investment company, money management firm or a
"Qualified Institutional Buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended (the "1933 Act"); or (iv) an institution
substantially similar to any to any of the foregoing; provided in each case of
clauses (i), (ii), (iii) or (iv) of this
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definition that it has total assets (in name or under management) in excess of
$600,000,000 and (except with respect to a pension advisory firm or similar
fiduciary) capital/statutory surplus or shareholder's equity in excess of
$200,000,000, or (c) any Person Controlled (as defined below in this definition)
by any one or more of the Persons listed in clause (i) above and (B) with
respect to any sale of either Loan participations in either Loan or securities
representing an interest in either Loan other than in a public offering of such
securities, even if such public offering is made simultaneously with a private
placement, a Person which is (i) actively and regularly engaged in the purchase
of loans or interests therein or securities representing loans or interests
therein, or (ii) a "Qualified Institutional Buyer" pursuant to Rule 144A or an
entity that is an institutional "Accredited Investor" within the meaning of Rule
501A(1), (2), (3) or (7) of Regulation D under the 1933 Act, or an entity in
which each of the equity owners is such an institutional "Accredited Investor."
For purposes of this definition only, "Control" means the ownership, directly or
indirectly, in the aggregate of more than 50% of the beneficial ownership
interests of a Person and the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise
("Controlled" has the meaning correlative thereto).
In accordance with Section 3.10(a) of the Pooling Agreement,
Co-Lender hereby authorizes and empowers each of Master Servicer and Special
Servicer, in its own name, in connection with its servicing and administrative
duties under the Pooling Agreement and this Agreement, to exercise efforts
consistent with the Servicing Standard and to execute and deliver, on behalf of
Co-Lender, any and all financing statements, continuation statements and other
documents and instruments necessary to maintain the lien created by any Mortgage
or other security document related to the Loans on the Mortgaged Properties and
related collateral; subject to Section 3.21 of the Pooling Agreement, any and
all modifications, waivers, amendments or consents to or with respect to any
Loan documents; and any and all instruments of satisfaction or cancellation, or
of full release or discharge, and all other comparable instruments with respect
to the Loan A2 and the Mortgaged Properties. Subject to Section 3.10 of the
Pooling Agreement, Co-Lender agrees to furnish, or cause to be furnished, to
Master Servicer and Special Servicer any powers of attorney or other documents
necessary or appropriate to enable Master Servicer or Special Servicer, as the
case may be, to carry out its servicing and administrative duties under the
Pooling Agreement an this Agreement; provided, however, that the Co-Lender shall
not be liable, and shall be indemnified by Master Servicer or Special Servicer,
as applicable for any negligence with respect to, or misuse of, any such power
of attorney by Master Servicer or Special Servicer, as the case may be; and
further provided that neither Master Servicer nor Special Servicer, without the
written consent of Co-Lender, shall initiate any action in the name of Co-Lender
without indicating its representative capacity or cause the Co-Lender to be
registered to do business in any state.
Co-Lender agrees to perform its obligations pursuant to
Section 3.10 of the Pooling Agreement with respect to delivers to Master
Servicer or the Special Servicer, as applicable of the Loan Documents related to
Loan A2, any Requests for Release and any court pleadings, requests for
trustee's sale or other documents necessary to the foreclosure or trustee's sale
in respect of the Mortgaged Properties or to any legal action or to enforce any
other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or equity with respect to Loan A2.
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The Co-Lender hereby confirms that it has been provided with
the Pooling Agreement and acknowledges and agrees to be bound by the provisions
of the Pooling Agreement affecting the rights of the Master Servicer or the
Special Servicer vis-a-vis the Co-Lender, and imposing obligations on it,
including, without limitation, Sections 3.01, 3.10, 3.11, 3.24(b) and 6.03.
In the event of an inconsistency between the provisions of
this Agreement and the Pooling Agreement, the provisions of this Agreement shall
prevail.
5. Governing Law. The parties agree that the State of New York
has a substantial relationship to the parties and to the underlying transaction
embodied hereby, and in all respects, including, without limitation, matters of
construction, validity and performance, this Agreement and the obligations
arising hereunder shall be governed by, and construed in accordance with, the
laws of the State of New York applicable to contracts made and performed in such
State and any applicable law of the United States of America.
6. Modification, Waiver in Writing. No modification,
amendment, extension, discharge termination or waiver of any provision of this
Agreement, shall in any event be effective unless the same shall be in writing
signed by the party against whom enforcement is sought, and then such waiver or
consent shall be effective only in the specific instance, and for the purpose,
for which given.
7. Notices. All notices, consents, approvals and requests
required or permitted hereunder shall be given in writing and shall be effective
for all purposes if hand delivered or sent by (a) hand delivery, with proof of
attempted delivery, (b) certified or registered United States mail, postage
prepaid, (c) expedited delivery service, either commercial or United States
Postal Service, with proof of attempted delivery, or (d) by telecopier (with
answerback acknowledged) provided that such telecopied notice must also be
delivered by one of the means set forth in (a), (b) or (c) above, addressed if
to Lead Lender at its address set forth on the first page hereof, if to
Co-Lender at its designated address set forth on the first page hereof and if to
Master Servicer and Special Servicer at its designated address set forth in the
Pooling Agreement, or at such other address and Person as shall be designated
from time to time by any party hereto, as the case may be, in a written notice
to the other parties hereto in the manner provided for in this Section 7.
A notice shall be deemed to have been given: (a) in the case
of hand delivery, at the time of delivery; (b) in the case of registered or
certified mail, when delivered or the first attempted delivery on a Business
Day; (c) in the case of expedited prepaid delivery upon the first attempted
delivery on a Business Day; or (d) in the case of telecopier, upon receipt of
answerback confirmation, provided that such telecopied notice was also delivered
as required in this Section 7. A party receiving a notice which does not comply
with the technical requirements for notice under this Section 7 may elect to
waive any deficiencies and treat the notice as having been properly given.
8. Headings. The headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
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9. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
10. Third Party Beneficiaries. This Agreement is intended
solely for the benefit of the parties hereto and does not, and shall not be
construed to, create any rights in favor of any other person or entity.
11. Successors and Assigns. This Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
13. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter contained
in this Agreement and supersedes all prior agreements, understandings and
negotiations between the parties.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS HEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized representatives, all as
of the day and year first above written.
XXXXX FARGO BANK MINNESOTA, N.A.,
as trustee for GMAC COMMERCIAL
MORTGAGE SECURITIES INC.,
COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES
0000-X0 (Xxxx Xxxxxx)
By: ___________________________________________
Name:
Title:
XXXXXXX SACHS MORTGAGE COMPANY (Co-Lender)
By: XXXXXXX XXXXX REAL ESTATE FUNDING CORP.
By: _______________________________________
Name:
Title:
GMAC COMMERCIAL MORTGAGE
CORPORATION (Master Servicer and
Special Servicer)
By: _______________________________________
Name:
Title:
