EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.,
DEPOSITOR,
GMAC COMMERCIAL MORTGAGE CORPORATION,
MASTER SERVICER,
GMAC COMMERCIAL MORTGAGE CORPORATION,
SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION,
TRUSTEE AND XXXXXXXX FASHION CENTER COMPANION PAYING AGENT,
and
ABN AMRO BANK N.V.,
FISCAL AGENT
POOLING AND SERVICING AGREEMENT
DATED AS OF MAY 1, 2003
----------------------------------------
$1,050,901,642
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-C1
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.................................................................................6
Section 1.01 Defined Terms......................................................................6
Section 1.02 Certain Calculations in Respect of the Mortgage Pool..............................95
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES............................96
Section 2.01 Establishment of Trust; Conveyance of Mortgage Loans..............................96
Section 2.02 Acceptance by Trustee.............................................................99
Section 2.03 Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans for Defects
in Mortgage Files and Breaches of Representations and Warranties.................102
Section 2.04 Issuance of Class R-I Certificates; Creation of REMIC I Regular Interests........107
Section 2.05 Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by the Trustee...107
Section 2.06 Issuance of Class R-II Certificates; Creation of REMIC II Regular Interest.......107
Section 2.07 Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by Trustee.....108
Section 2.08 Issuance of REMIC III Certificates...............................................108
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND............................................108
Section 3.01 Servicing and Administration of the Mortgage Loans...............................108
Section 3.02 Collection of Mortgage Loan Payments.............................................110
Section 3.03 Collection of Taxes, Assessments and Similar Items; Servicing Accounts and
Reserve Accounts.................................................................111
Section 3.04 Certificate Account, Distribution Account, Interest Reserve Account and
Xxxxxxxx Fashion Center Custodial Account........................................112
Section 3.05 Permitted Withdrawals From the Certificate Account, the Distribution Account,
the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account
and the Xxxxxxxx Fashion Center Custodial Account................................119
Section 3.06 Investment of Funds in the Certificate Account, the Distribution Account, the
Excess Liquidation Proceeds Reserve Account, the Interest Reserve Account, the
REO Account and the Xxxxxxxx Fashion Center Custodial Account....................127
-i-
TABLE OF CONTENTS
(continued)
PAGE
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage....129
Section 3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements; Subordinate
Financing; Defeasance............................................................133
Section 3.09 Realization Upon Defaulted Mortgage Loans........................................137
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..................................140
Section 3.11 Servicing Compensation; Nonrecoverable Servicing Advances........................141
Section 3.12 Inspections; Collection of Financial Statements..................................145
Section 3.13 Annual Statement as to Compliance................................................146
Section 3.14 Reports by Independent Public Accountants........................................146
Section 3.15 Access to Certain Information....................................................147
Section 3.16 Title to REO Property; REO Account...............................................148
Section 3.17 Management of REO Property; Independent Contractors..............................149
Section 3.18 Sale of Defaulted Mortgage Loans.................................................152
Section 3.19 Sale of REO Property.............................................................156
Section 3.20 Additional Obligations of the Master Servicer and the Special Servicer...........158
Section 3.21 Modifications, Waivers, Amendments and Consents..................................161
Section 3.22 Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping...................................................................165
Section 3.23 Sub-Servicing Agreements.........................................................166
Section 3.24 Designation of Special Servicer by the Majority Certificateholder of the
Controlling Class................................................................168
Section 3.25 Lock-Box Accounts and Servicing Accounts.........................................171
Section 3.26 Representations and Warranties of the Master Servicer and the Special
Servicer.........................................................................172
Section 3.27 Third-Party Beneficiaries........................................................173
Section 3.28 Operating Advisors...............................................................173
Section 3.29 Xxxxxxxx Fashion Center B Note Intercreditor Matters.............................178
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS........................................184
-ii-
TABLE OF CONTENTS
(continued)
PAGE
Section 4.01 Distributions....................................................................184
Section 4.02 Statements to Certificateholders; Certain Reports by the Master Servicer and
the Special Servicer.............................................................200
Section 4.03 Delinquency Advances.............................................................208
Section 4.04 Allocation of Realized Losses and Additional Trust Fund Expenses.................211
Section 4.05 Statements to Xxxxxxxx Fashion Center Companion Holders..........................213
ARTICLE V THE CERTIFICATES..........................................................................214
Section 5.01 The Certificates.................................................................214
Section 5.02 Registration of Transfer and Exchange of Certificates............................215
Section 5.03 Book-Entry Certificates..........................................................220
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates................................221
Section 5.05 Persons Deemed Owners............................................................222
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER...............................222
Section 6.01 Liability of the Depositor, the Master Servicer and the Special Servicer.........222
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the Master Servicer and
the Special Servicer; Assignment of Rights and Delegation of Duties by the
Master Servicer and the Special Servicer.........................................222
Section 6.03 Limitation on Liability of the Depositor, the Master Servicer, the Special
Servicer and Others..............................................................223
Section 6.04 Depositor, Master Servicer and Special Servicer Not to Resign....................224
Section 6.05 Rights of the Depositor in Respect of the Master Servicer and the Special
Servicer.........................................................................225
Section 6.06 Removal Without Cause and Appointment of Successor Special Servicer for
Xxxxxxxx Fashion Center A/B Loan.................................................225
ARTICLE VII DEFAULT...................................................................................227
Section 7.01 Events of Default................................................................227
Section 7.02 Trustee to Act; Appointment of Successor.........................................230
Section 7.03 Notification to Certificateholders...............................................231
-iii-
TABLE OF CONTENTS
(continued)
PAGE
Section 7.04 Waiver of Events of Default......................................................231
ARTICLE VIII CONCERNING THE TRUSTEE AND THE FISCAL AGENT...............................................232
Section 8.01 Duties of the Trustee and the Fiscal Agent.......................................232
Section 8.02 Certain Matters Affecting the Trustee and the Fiscal Agent.......................233
Section 8.03 Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans...................................................234
Section 8.04 Trustee and Fiscal Agent May Own Certificates....................................234
Section 8.05 Fees and Expenses of Trustee; Indemnification of Trustee and the Fiscal Agent....234
Section 8.06 Eligibility Requirements for Trustee and Fiscal Agent............................235
Section 8.07 Resignation and Removal of the Trustee and the Fiscal Agent......................236
Section 8.08 Successor Trustee and Fiscal Agent...............................................237
Section 8.09 Merger or Consolidation of Trustee and Fiscal Agent..............................238
Section 8.10 Appointment of Co-Trustee or Separate Trustee....................................238
Section 8.11 Appointment of Custodians........................................................239
Section 8.12 Access to Certain Information....................................................239
Section 8.13 Representations and Warranties of the Trustee....................................241
Section 8.14 Filings with the Securities and Exchange Commission..............................243
Section 8.15 Fiscal Agent Termination Event...................................................244
Section 8.16 Procedure Upon Termination Event.................................................245
Section 8.17 Xxxxxxxx Fashion Center Companion Paying Agent...................................245
Section 8.18 Xxxxxxxx Fashion Center Companion Holder Register................................246
ARTICLE IX TERMINATION...............................................................................247
Section 9.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans.................247
Section 9.02 Additional Termination Requirements..............................................250
ARTICLE X ADDITIONAL REMIC PROVISIONS...............................................................251
Section 10.01 REMIC Administration.............................................................251
Section 10.02 Depositor, Master Servicer, Special Servicer, Fiscal Agent Trustee
to Cooperate.....................................................................254
-iv-
TABLE OF CONTENTS
(continued)
PAGE
Section 10.03 Grantor Trust Administration.....................................................254
ARTICLE XI MISCELLANEOUS PROVISIONS..................................................................256
Section 11.01 Amendment........................................................................256
Section 11.02 Recordation of Agreement; Counterparts...........................................258
Section 11.03 Limitation on Rights of Certificateholders.......................................259
Section 11.04 GOVERNING LAW....................................................................260
Section 11.05 Notices..........................................................................260
Section 11.06 Severability of Provisions.......................................................261
Section 11.07 Grant of a Security Interest.....................................................261
Section 11.08 No Partnership...................................................................261
Section 11.09 Successors and Assigns; Beneficiaries............................................261
Section 11.10 Article and Section Headings.....................................................262
Section 11.11 Notices to the Rating Agencies...................................................262
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate..............................................................A-1-1
Exhibit A-2 Form of Class A-2 Certificate..............................................................A-2-1
Exhibit A-3 Form of Class B Certificate................................................................A-3-1
Exhibit A-4 Form of Class C Certificate................................................................A-4-1
Exhibit A-5 Form of Class D Certificate................................................................A-5-1
Exhibit A-6 Form of Class E Certificate................................................................A-6-1
Exhibit A-7 Form of Class X-1 Certificate..............................................................A-7-1
Exhibit A-8 Form of Class X-2 Certificate..............................................................A-8-1
Exhibit A-9 Form of Class A-1A Certificate.............................................................A-9-1
Exhibit A-10 Form of Class F Certificate...............................................................A-10-1
Exhibit A-11 Form of Class G Certificate...............................................................A-11-1
Exhibit A-12 Form of Class H Certificate...............................................................A-12-1
Exhibit A-13 Form of Class J Certificate...............................................................A-13-1
-v-
TABLE OF CONTENTS
(continued)
PAGE
Exhibit A-14 Form of Class K Certificate...............................................................A-14-1
Exhibit A-15 Form of Class L Certificate...............................................................A-15-1
Exhibit A-16 Form of Class M Certificate...............................................................A-16-1
Exhibit A-17 Form of Class N-1 Certificate.............................................................A-17-1
Exhibit A-18 Form of Class N-2 Certificate.............................................................A-18-1
Exhibit A-19 Form of Class O Certificate...............................................................A-19-1
Exhibit A-20 Form of Class P Certificate...............................................................A-20-1
Exhibit A-21 Form of Class Q Certificate...............................................................A-21-1
Exhibit A-22 Form of Class R-I Certificate.............................................................A-22-1
Exhibit A-23 Form of Class R-II Certificate............................................................A-23-1
Exhibit A-24 Form of Class R-III Certificate...........................................................A-24-1
Exhibit B-1 Form of Transferor Certificate.............................................................B-1-1
Exhibit B-2 Form of Transferee Certificate.............................................................B-2-1
Exhibit C-1 Form of Transfer Affidavit and Agreement...................................................C-1-1
Exhibit C-2 Form of Transferor Certificate.............................................................C-2-1
Exhibit D Form of Request for Release..................................................................D-1
Exhibit E Form of UCC-1 Financing Statement............................................................E-1
Exhibit F Methodology to Normalize Net Operating Income
and Debt Service Coverage...........................................................F-1
Exhibit G Form of Distribution Date Statement..........................................................G-1
Exhibit H-1 Form of Investor Certification.............................................................H-1-1
Exhibit H-2 Form of Confidentiality Agreement..........................................................H-2-1
Exhibit I Form of Notice and Certification regarding
Defeasance of Mortgage Loans........................................................I-1
Exhibit J Form of Insurance Summary Report.............................................................J-1
Exhibit K First Anniversary Reserve Report.............................................................K-1
-vi-
TABLE OF CONTENTS
(continued)
PAGE
Exhibit L-1 Closing Mortgage File Review Certification...................................................L-1
Exhibit L-2 Post-Closing Mortgage File Review
Certification.......................................................................L-1
Exhibit M-1 Form 10K Certification.....................................................................M-1-1
Exhibit M-2 Back-up Certificate for Form 10K
Certification from Trustee........................................................M-2-1
Exhibit M-3 Back-up Certificate for Form 10K
Certification
from Master Servicer/Special
Servicer..........................................................................M-3-1
SCHEDULES
Schedule I Mortgage Loan Schedule..................................................................Sch. I-1
Schedule II Environmental Policy Mortgage Loans....................................................Sch. II-1
Schedule III Strip Calculation Schedule............................................................Sch. III-1
Schedule IV Broker Strip Schedule..................................................................Sch. IV-1
Schedule V Specified Earnout Reserve Loans........................................................Sch. VI-1
Schedule VI Initial Xxxxxxxx Fashion Center B Note
Operating Advisor............................................................Sch. VII-1
Schedule VII Additional Servicing Fee Schedule....................................................Sch. VIII-1
-vii-
This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of May 1, 2003, among GMAC COMMERCIAL MORTGAGE SECURITIES, INC., as
Depositor, GMAC COMMERCIAL MORTGAGE CORPORATION, as Master Servicer, GMAC
COMMERCIAL MORTGAGE CORPORATION, as Special Servicer, LASALLE BANK NATIONAL
ASSOCIATION, as Trustee and Xxxxxxxx Fashion Center Companion Paying Agent, and
ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, to be issued hereunder in
multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust Fund to be created hereunder, the primary assets
of which will be the Mortgage Loans. The aggregate of the initial Cut-off Date
Principal Balances of the Mortgage Loans is approximately $1,050,901,642.
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the Mortgage Loans (exclusive of that portion of interest
payments thereon that constitute Excess Interest) and certain other related
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as "REMIC I". The Class R-I
Certificates will represent the sole class of "residual interests" in REMIC I
for purposes of the REMIC Provisions under federal income tax law. With respect
to each Mortgage Loan, there shall be a corresponding REMIC I Regular Interest.
The designation for each such REMIC I Regular Interest shall be the loan number
for the related Mortgage Loan set forth on the schedule attached hereto as
Schedule I. The REMIC I Remittance Rate (as defined herein) and the initial
Uncertificated Principal Balance of each such REMIC I Regular Interest shall be
based on the Net Mortgage Rate as of the Cut-off Date and the Cut-off Date
Principal Balance, respectively, for the related Mortgage Loan. Determined
solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each such REMIC I
Regular Interest shall be the first Distribution Date that follows the Stated
Maturity Date for the related Mortgage Loan. None of the REMIC I Regular
Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC I Regular Interests as a REMIC for federal income
tax purposes, and such segregated pool of assets will be designated as "REMIC
II." The Class R-II Certificates will represent the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions under federal income
tax law. The following table irrevocably sets forth the designation, REMIC II
Remittance Rate and the initial Uncertificated Principal Balance for each of the
REMIC II Regular Interests. Determined solely for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for each REMIC II Regular Interest shall be the first Distribution Date
that is at least two years after the end of the remaining amortization schedule
of the Mortgage Loan that has, as of the Closing Date, the longest remaining
amortization schedule, irrespective of its scheduled maturity. None of the REMIC
II Regular Interests will be certificated.
Pooling and Servicing Agreement
Designation REMIC II Initial Uncertificated
Remittance Rate Principal Balance
-------------------------------------------------------------------------------
LA-1-1 Variable (*) $3,860,000
LA-1-2-A Variable (*) $4,891,000
LA-1-2-B Variable (*) $18,401,000
LA-1-2-C Variable (*) $20,610,000
LA-1-2-D Variable (*) $19,948,000
LA-1-2-E Variable (*) $19,484,000
LA-1-2-F Variable (*) $18,843,000
LA-1-2-G Variable (*) $18,405,000
LA-1-2-H Variable (*) $17,805,000
LA-1-2-I Variable (*) $45,144,000
LA-1-2-J Variable (*) $16,098,000
LA-1-2-K Variable (*) $11,291,000
LA-2-A Variable (*) $4,358,000
LA-2-B Variable (*) $15,146,000
LA-2-C Variable (*) $37,101,000
LA-2-D Variable (*) $335,951,000
LA1-1 Variable (*) $1,048,000
LA1-2-A Variable (*) $1,385,000
LA1-2-B Variable (*) $5,458,000
LA1-2-C Variable (*) $6,122,000
LA1-2-D Variable (*) $5,914,000
LA1-2-E Variable (*) $5,782,000
LA1-2-F Variable (*) $5,586,000
LA1-2-G Variable (*) $5,462,000
LA1-2-H Variable (*) $5,279,000
LA1-2-I Variable (*) $33,616,000
LA1-2-J Variable (*) $4,185,000
LA1-2-K Variable (*) $4,087,000
LA1-2-L Variable (*) $3,951,000
LA1-2-M Variable (*) $3,866,000
LA1-2-N Variable (*) $152,153,000
LB Variable (*) $39,409,000
2
LC Variable (*) $11,822,000
LD Variable (*) $22,332,000
LE Variable (*) $15,763,000
LF-A Variable (*) $829,000
LF-B Variable (*) $6,780,000
LF-C Variable (*) $4,214,000
LG-A Variable (*) $5,557,000
LG-B Variable (*) $6,266,000
LH-A Variable (*) $2,267,000
LH-B Variable (*) $7,728,000
LH-C Variable (*) $1,827,000
LJ-A Variable (*) $7,148,000
LJ-B Variable (*) $8,965,000
LJ-C Variable (*) $6,219,000
LK-A Variable (*) $8,339,000
LK-B Variable (*) $2,170,000
LL-A Variable (*) $6,538,000
LL-B Variable (*) $1,344,000
LM Variable (*) $5,254,000
LN-1 Variable (*) $6,463,000
LN-2 Variable (*) $1,420,000
LO Variable (*) $2,627,000
LP Variable (*) $5,255,000
LQ Variable (*) $13,135,642
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC II Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC III". The Class R-III Certificates will represent the sole class of
"residual interests" in REMIC III for purposes of the REMIC Provisions under
federal income tax law. The following table irrevocably sets forth the
designation, the Pass-Through Rate and initial Class Principal Balance for each
of the Classes of REMIC III Regular Certificates. Determined solely for purposes
of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the "latest
possible maturity date" for each Class of REMIC III Regular Certificates shall
be the first Distribution Date that is at least two years after the end of the
remaining amortization schedule of the Mortgage Loan that has, as of the Closing
Date, the longest remaining amortization schedule, irrespective of its scheduled
maturity.
3
Certificate Initial Class
Designation Pass-Through Rate Principal Balance
---------------------------------------------------------------------------
Class A-1 3.337%(1) $214,780,000
Class A-2 4.079%(1) $392,556,000
Class B 4.192%(1) $39,409,000
Class C 4.242%(1) $11,822,000
Class D 4.283%(1) $22,332,000
Class E 4.342%(1) $15,763,000
Class X-1 N/A(2) N/A(3)
Class X-2 N/A(2) N/A(4)
Class A-1A 3.830%(1) $243,894,000
Class F 4.718%(5) $11,823,000
Class G 4.817%(5) $11,823,000
Class H 5.310%(5) $11,822,000
Class J 5.000%(5) $22,332,000
Class K 5.000%(5) $10,509,000
Class L 5.000%(5) $7,882,000
Class M 5.000%(5) $5,254,000
Class N-1 5.000%(5) $6,463,000
Class N-2 5.000%(5) $1,420,000
Class O 5.000%(5) $2,627,000
--------------------------
(1) Initial Pass-Through Rate. The Pass-Through Rate is a fixed rate.
(2) The Pass-Through Rate for each of the Class X-1 and Class X-2 Certificates
is as described herein.
(3) The Class X-1 Certificates will have an original Class X-1 Notional Amount
of $1,050,901,642. The Class X-1 Certificates will not have a Certificate
Principal Balance and will not be entitled to any distribution of
certificate principal.
(4) The Class X-2 Certificates will have an original Class X-2 Notional Amount
of $1,011,839,000. The Class X-2 Certificates will not have a Certificate
Principal Balance and will not be entitled to any distribution of
certificate principal.
(5) Initial Pass-Through Rate. The Pass-Through Rate will be the lesser of the
indicated fixed rate or the Weighted Average Net Mortgage Rate.
4
Class P 5.000%(5) $5,255,000
Class Q 5.000%(5) $13,135,642
Each Class X Component that corresponds to both the Class X-1 Certificates
and the Class X-2 Certificates is comprised of two uncertificated REMIC III
Regular Interests, each of which is hereby designated as a "regular interest"
therein and entitled to distributions of interest, subject to the terms and
conditions hereof, in an amount based upon the related Component Class X-1 Strip
Rate or Component Class X-2 Strip Rate, as applicable, and the Uncertificated
Principal Balance of the related REMIC II Regular Interest (as specified in the
chart under the definition of "REMIC II Regular Interest") outstanding from time
to time.
As provided herein, the Trustee shall take all actions necessary to ensure
that the portion of the Trust Fund consisting of the Grantor Trust Assets
maintains its status as a "grantor trust" under federal income tax law and not
be treated as part of REMIC I, REMIC II or REMIC III.
The Mortgaged Property that secures the Oakbrook Center Mortgage Loan,
identified as loan number 1 on the Mortgage Loan Schedule (the "Oakbrook Center
Mortgage Loan"), also secures three separate pari passu mortgage loans to the
same Mortgagor (the "Oakbrook Center Companion Loans"). One of the Oakbrook
Center Companion Loans is owned by the trust fund established pursuant to a
Pooling and Servicing Agreement (the "2003-TOP9 Pooling and Servicing
Agreement"), dated as of February 1, 2003, among Xxxxxx Xxxxxxx Xxxx Xxxxxx
Capital I Inc., as depositor, Xxxxx Fargo Bank, National Association, as initial
master servicer (such master servicer or any successor thereto, the "2003-TOP9
Master Servicer"), ARCap Special Servicing, Inc., as initial special servicer
(such special servicer or any successor thereto, the "2003-TOP9 Special
Servicer"), LaSalle Bank National Association, as the initial trustee (such
trustee or any successor thereto, the "2003-TOP9 Trustee"), Xxxxx Fargo Bank
Minnesota, National Association, as the initial paying agent and certificate
registrar and ABN AMRO Bank N.V., as the initial fiscal agent. The Oakbrook
Center Mortgage Loan and the Oakbrook Center Companion Loans will be serviced
pursuant to the 2003-TOP9 Pooling and Servicing Agreement, the Oakbrook Center
Intercreditor Agreement and the Oakbrook Center Letter Agreements.
Capitalized terms used in this Preliminary Statement are defined in Article
I hereof.
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the Xxxxxxxx Fashion
Center Companion Paying Agent and the Fiscal Agent agree as follows:
5
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary Statement,
the following words and phrases, unless the context otherwise requires, shall
have the meanings specified in this Article.
"2003-TOP9 Master Servicer": As defined in the Preliminary Statement.
"2003-TOP9 Pooling and Servicing Agreement": As defined in the Preliminary
Statement.
"2003-TOP9 Special Servicer": As defined in the Preliminary Statement.
"2003-TOP9 Trustee": As defined in the Preliminary Statement.
"Accrued Certificate Interest": With respect to any Class of REMIC III
Regular Certificates (other than the Class X Certificates) for any Distribution
Date, one month's interest (calculated on the basis of a 360-day year consisting
of twelve 30-day months) at the Pass-Through Rate applicable to such Class of
Certificates for such Distribution Date, accrued on the Class Principal Balance
of such Class of Certificates outstanding immediately prior to such Distribution
Date. With respect to the Class X-1 and Class X-2 Certificates for any
Distribution Date, one month's interest (calculated on the basis of a 360-day
year consisting of twelve 30-day months) at the Class X-1 Pass-Through Rate or
the Class X-2 Pass Through Rate, as applicable, for such Distribution Date,
accrued on the Class X-1 Notional Amount or the Class X-2 Notional Amount, as
applicable, outstanding immediately prior to such Distribution Date.
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulation Section 1.856-6(b)(1), which is the first day
on which the Trust Fund is treated as the owner of such REO Property for federal
income tax purposes.
"Additional Information": As defined in Section 4.02(a).
"Additional Servicing Fee": With respect to each Additional Servicing Fee
Mortgage Loan, the fee provided for in the Designated Sub-Servicer Agreement
(which may be comprised of a designated sub-servicing fee and an additional
sub-servicing fee) that accrues at the rate per annum set forth on the
Additional Servicing Fee Schedule.
"Additional Servicing Fee Mortgage Loans": The Mortgage Loans secured by,
and any successor REO Loans relating to, those Mortgaged Properties identified
on the Additional Servicing Fee Schedule.
"Additional Servicing Fee Schedule": Schedule VII hereto.
6
"Additional Trust Fund Expense": Any unanticipated expense within the
meaning of Treasury Regulation Section 1.860G-1(b)(3)(iii) experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss, that would result in the REMIC III Regular Certificateholders'
receiving less than the full amount of principal and/or interest to which they
are entitled on any Distribution Date.
"Adjustable Rate Mortgage Loan": A Mortgage Loan, if any, as to which the
related Mortgage Note provides, as of the Closing Date, for periodic adjustments
to the Mortgage Rate thereon based on changes in the related Index.
"Advance": Any Delinquency Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the Reimbursement
Rate (or with respect to any Deferred Advance, at the Reimbursement Rate plus
0.50%) and payable to the Master Servicer, the Special Servicer, the Trustee or
the Fiscal Agent, as the case may be, all in accordance with Section 3.11(f) or
Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": As defined in Section 10.03(e).
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Allocated Mortgage Loan": With respect to the Mortgage Loan identified as
the "ARC Portfolio" on the Mortgage Loan Schedule, each of the Mortgaged
Properties securing such Mortgage Loan will be assumed to be an individual
"Allocated Mortgage Loan." Each such Allocated Mortgage Loan shall have an
allocated loan amount and allocated annual debt service amount associated with
it as set forth on the Mortgage Loan Schedule.
"Anticipated Repayment Date": With respect to any ARD Loan, the date upon
which such ARD Loan starts to accrue interest at its Revised Rate.
"Applicable State Law": For purposes of Article X, (a) the laws of the
State and City of New York, (b) the laws of the states in which the Corporate
Trust Office of the Trustee and the Primary Servicing Offices of the Master
Servicer and the Special Servicer are located, (c) other state or local law as
to which the Trustee as the REMIC administrator has actual knowledge of
applicability and (d) such other state or local law whose applicability shall
have been brought to the attention of the Trustee as REMIC administrator by
either (i) an opinion of counsel delivered to it, or (ii) written notice from
the appropriate taxing authority as to the applicability of such state law.
7
"Appraisal": With respect to any Mortgaged Property or REO Property as to
which an appraisal is required or permitted to be performed pursuant to the
terms of this Agreement, either: (i) a narrative appraisal complying with USPAP
conducted by a Qualified Appraiser in the case of Mortgage Loans and REO Loans
with a Stated Principal Balance as of the date of such appraisal of greater than
$2,000,000; or (ii) a limited appraisal and a summary report of the "market
value" of the Mortgaged Property conducted by a Qualified Appraiser in the case
of Mortgage Loans or any REO Loans with a Stated Principal Balance as of the
date of such appraisal of $2,000,000 or less.
"Appraisal Reduction Amount": With respect to any Required Appraisal Loan,
an amount (as calculated on the Determination Date immediately succeeding the
date on which the most recent relevant Appraisal was obtained by the Master
Servicer or the Special Servicer, as the case may be, pursuant to this
Agreement) equal to the excess, if any, of (a) the sum of (i) the Stated
Principal Balance (including, with respect to the Xxxxxxxx Fashion Center A/B
Loan, the Stated Principal Balance of the Xxxxxxxx Fashion Center Mortgage Loan
and the Xxxxxxxx Fashion Center Companion Loans) of such Required Appraisal
Loan, (ii) to the extent not previously advanced by or on behalf of the Master
Servicer, the Trustee or the Fiscal Agent, all accrued and unpaid interest on
such Required Appraisal Loan through the most recent Due Date occurring on or
prior to such Determination Date at a per annum rate equal to the related
Mortgage Rate, (iii) all related unreimbursed Advances made by or on behalf of
the Master Servicer, the Special Servicer or the Trustee in respect of such
Required Appraisal Loan, together with all unpaid Advance Interest accrued on
such Advances, and (iv) all currently due but unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents in respect of
the related Mortgaged Property or REO Property, net of any Escrow Payments,
letters of credit or other reserves held by the Master Servicer or the Special
Servicer with respect to any such item, over (b) 90% of an amount equal to (i)
(x) the Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by such Appraisal referred to in the parenthetical
above and (y) all escrows and reserves in respect of such Required Appraisal
Loan (other than amounts representing due and unpaid taxes, assessments,
insurance premiums, ground rents and other amounts due and unpaid with respect
to such Required Appraisal Loan), net of (ii) the amount of any liens on such
property (not accounted for in clause (a)(iv) of this definition or taken into
account in determining such Appraised Value) that are prior to the lien of the
Required Appraisal Loan. Notwithstanding the foregoing, if an Appraisal is not
obtained within 120 days following the earliest of the dates described in
Section 3.20(d) (which, in the case of Section 3.20(d)(ii), shall be the date of
the occurrence of an uncured delinquency in Monthly Payments), then until such
Appraisal is obtained the Appraisal Reduction Amount will equal 25% of the
Stated Principal Balance (including, with respect to the Xxxxxxxx Fashion Center
A/B Loan, the Stated Principal Balance of the Xxxxxxxx Fashion Center Mortgage
Loan and the Xxxxxxxx Fashion Center Companion Loans) of the related Required
Appraisal Loan; provided, upon receipt of an Appraisal, however, the Appraisal
Reduction Amount for such Required Appraisal Loan will be recalculated in
accordance with this definition without regard to this sentence. With respect to
the Oakbrook Center Mortgage Loan, the term "Appraisal Reduction Amount" has the
meaning set forth in, and will be calculated in accordance with, the 2003-TOP9
Pooling and Servicing Agreement (taking into account any unreimbursed Advances
and Advance Interest under this Agreement or the 2003-TOP9 Pooling and Servicing
Agreement). Appraisal Reduction Amounts for the Xxxxxxxx Fashion Center A/B Loan
shall be allocated first to the related Xxxxxxxx Fashion Center B Note, and then
to the Chandler Fashion
8
Center Mortgage Loan and the Xxxxxxxx Fashion Center A-2 Note, on a pro rata
basis; provided, in each case, any such Appraisal Reduction Amount shall not be
allocated to the extent (but only to the extent) that the Xxxxxxxx Fashion
Center B Note Principal Balance, net of such Appraisal Reduction Amounts, would
be less than zero.
"Appraised Value": As of any date of determination, the appraised value of
a Mortgaged Property based upon the most recent Appraisal obtained pursuant to
this Agreement.
"Archon": Archon Financial, L.P. and its successors and assigns.
"ARD Loan": Any Mortgage Loan that is designated as such in the Mortgage
Loan Schedule.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents, security deposits and profits or similar instrument
executed by the Mortgagor, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Monthly Payment": With respect to any Balloon Mortgage Loan for
its Stated Maturity Date (provided that such Balloon Mortgage Loan has not been
paid in full, and no other Liquidation Event has occurred in respect thereof, on
or before the end of the Collection Period in which such Stated Maturity Date
occurs (or in the case of a Late Due Date Mortgage Loan, on or before the end of
the Collection Period immediately preceding the Collection Period in which such
Stated Maturity Date occurs)) and for any subsequent Due Date therefor as of
which such Balloon Mortgage Loan remains outstanding and part of the Trust Fund
(or, in the case of a Late Due Date Mortgage Loan, for any subsequent Due Date
therefor which follows in the same month a Determination Date as of which such
Mortgage Loan remains outstanding and part of the Trust Fund), if no Monthly
Payment (other than the related Balloon Payment) is due for such Due Date, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof for the Stated Maturity Date and each such subsequent Due Date
equal to the Monthly Payment (exclusive of any Excess Interest) that would have
been due in respect of such Balloon Mortgage Loan on such Due Date if it had
been required to continue to accrue interest in accordance with its terms, and
to pay principal in accordance with the amortization schedule (if any), in
effect immediately prior to, and without regard to the occurrence of, its most
recent scheduled maturity date. With respect to any REO Loan, for any Due Date
therefor as of which (or, in the case of a Late Due Date Mortgage Loan, for any
Due Date therefor which follows in the same month a Determination Date as of
which) the related REO Property remains part of the Trust Fund, the scheduled
monthly payment of principal and/or interest deemed to be due in respect thereof
on such Due Date equal to the Monthly Payment (or, in the case of a Balloon
Mortgage Loan described in the preceding sentence of this definition, the
Assumed Monthly Payment) exclusive of any Excess Interest that was due (or
deemed due) in respect of the related Mortgage Loan for the last Due Date prior
to its becoming an REO Loan.
"Available Distribution Amount": With respect to any Distribution Date, an
amount equal to (a) the sum of (i) the aggregate amount relating to the Trust
Fund on deposit in the
9
Certificate Account and the Distribution Account as of the close of business on
the related Determination Date, (ii) the aggregate amount of any Delinquency
Advances made by the Master Servicer, the Trustee or the Fiscal Agent for such
Distribution Date pursuant to Section 4.03, (iii) the aggregate of any
Compensating Interest Payments made by the Master Servicer for such Distribution
Date pursuant to Section 3.20, (iv) in the case of the Final Distribution Date,
the aggregate of any Liquidation Proceeds paid by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor in
connection with a purchase of all the Mortgage Loans and any REO Properties
pursuant to Section 9.01, (v) with respect to the Distribution Date occurring in
March of each calendar year, the Withheld Amounts with respect to the Interest
Reserve Loans deposited in the Interest Reserve Account by the Trustee in
January and/or February of such calendar year in accordance with Section 3.04(e)
and (vi) with respect to any Late Due Date Mortgage Loan, the Monthly Payment
(other than any Balloon Payment) due in the same calendar month as such
Distribution Date and received on or before its Due Date, net of (b) the
aggregate portion of the amount described in clause (a) hereof that represents
one or more of the following: (i) Monthly Payments (except those referred to in
clause (a)(vi) above) paid by the Mortgagors that are due on a Due Date
following the end of the related Collection Period, (ii) any amounts payable or
reimbursable to any Person from the Certificate Account pursuant to clauses (ii)
through (xvii), inclusive, of Section 3.05(b), (iii) any amounts payable or
reimbursable to any Person from the Distribution Account pursuant to clauses
(ii) through (vii), inclusive, of Section 3.05(b), (iv) Prepayment Premiums and
any Excess Interest and (v) with respect to the Distribution Date occurring in
(A) January of each calendar year that is not a leap year and (B) February of
each calendar year, the Withheld Amounts with respect to the Interest Reserve
Loans deposited in the Interest Reserve Account by the Trustee with respect to
such Distribution Date in accordance with Section 3.04(e). Notwithstanding the
investment of funds held in the Certificate Account or the Distribution Account
pursuant to Section 3.06, for purposes of calculating the Available Distribution
Amount, the amounts so invested shall be deemed to remain on deposit in such
account.
"Balloon Mortgage Loan": Any Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan that by its original terms or by virtue of any modification
entered into as of the Closing Date provides for an amortization schedule
extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any date
of determination, the Monthly Payment payable on the Maturity Date of such
Balloon Mortgage Loan.
"Balloon Payment Interest Excess": With respect to any Balloon Mortgage
Loan (other than a Late Due Date Mortgage Loan) as to which the Stated Maturity
Date occurs in the same Collection Period as the prior Due Date for such Balloon
Mortgage Loan, and as to which the related Balloon Payment is paid during such
Collection Period after such prior Due Date, the amount of interest (net of
related Servicing Fees and, if applicable, Excess Interest) accrued on such
Balloon Mortgage Loan from such prior Due Date to, but not including, the date
the related Balloon Payment is paid, to the extent such interest is actually
paid by the related Mortgagor in connection with the payment of the related
Balloon Payment on or before such Stated Maturity Date.
10
"Balloon Payment Interest Shortfall": With respect to any Balloon Mortgage
Loan (other than a Late Due Date Mortgage Loan) as to which the Stated Maturity
Date occurs after the Determination Date in any calendar month, and as to which
the related Balloon Payment was made during the Collection Period in which such
Stated Maturity Date occurs, the amount of interest that would have accrued on
such Balloon Mortgage Loan at the related Net Mortgage Rate from such Stated
Maturity Date to but not including the date that (but for the occurrence of such
Stated Maturity Date) would otherwise have been the next succeeding scheduled
Due Date, to the extent not paid by the related Mortgagor. With respect to any
Late Due Date Mortgage Loan that is a Balloon Mortgage Loan as to which the
related Balloon Payment is paid during the Collection Period in which the
related Stated Maturity Date occurs, the amount of interest that would have
accrued on such Late Due Date Mortgage Loan at the related Net Mortgage Rate
from such Stated Maturity Date to the date that (but for the occurrence of such
Stated Maturity Date) would have been the Due Date in the next calendar month,
to the extent not paid by the related Mortgagor.
"Bloomberg": As defined in Section 4.02(a).
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Borrower Recoveries": With respect to any Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan), amounts other than Monthly Payments, Balloon
Payments or Late Collections received from the related Mortgagor as
reimbursement or recoveries of expenditures made by any of the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent.
"Breach": As defined in Section 2.03(a).
"Broker Strip Amount": With respect to each Broker Strip Loan, the portion
of the Servicing Fee equal to, with respect to the Mortgage Loans identified on
the Broker Strip Schedule, the rate per annum identified on the Broker Strip
Schedule, of the Stated Principal Balance of the related Mortgage Loan,
calculated for the same number of days and on the same basis as the Servicing
Fee Rate. The Mortgage Rate set forth for each Broker Strip Loan on the Mortgage
Loan Schedule is net of such Broker Strip Amount.
"Broker Strip Schedule": Schedule IV hereto.
"Broker Strip Loans": The Mortgage Loans identified on the Broker Strip
Schedule.
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking institutions in New York, New York, and the cities in which the Primary
Servicing Offices of the Master Servicer and the Special Servicer and the city
in which the Corporate Trust Office of the Trustee are located, are authorized
or obligated by law or executive order to remain closed.
"Cash Collateral Account": With respect to any Mortgage Loan that has a
Lock-Box Account, any account or accounts created pursuant to the related
Mortgage Loan, Cash Collateral Account Agreement or other loan document, into
which account or accounts the Lock-Box Account monies are swept on a regular
basis for the benefit of the Trustee as successor to the Mortgage Loan Seller's
interest in the Mortgage Loans. Any Cash Collateral Account shall be
11
beneficially owned for federal income tax purposes by the Person who is entitled
to receive all reinvestment income or gain thereon in accordance with the terms
and provisions of the related Mortgage Loan and Section 3.06, which Person shall
be taxed on all reinvestment income or gain thereon. To the extent not otherwise
required to be paid to the applicable Mortgagor under the terms of the related
Mortgage Loan, the Master Servicer shall be permitted to make withdrawals
therefrom solely for deposit into the Certificate Account. To the extent not
inconsistent with the terms of the related Mortgage Loan, each such Cash
Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage Loan, the
cash collateral account agreement, if any, between the originator of such
Mortgage Loan and the related Mortgagor, pursuant to which the related Cash
Collateral Account, if any, may have been established.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Mortgage Pass-Through
Certificates, Series 2003-C1, as executed by the Trustee and authenticated and
delivered hereunder by the Certificate Registrar.
"Certificate Account": The custodial account or accounts created and
maintained pursuant to Section 3.04(a) in the name of the Master Servicer, as
custodian for the Holders of the Certificates, in trust for the holders of
certain other interests in mortgage loans serviced or sold by the Master
Servicer and for the Master Servicer, into which the amounts set forth in
Section 3.04(a) shall be deposited directly. Any such account or accounts shall
be an Eligible Account.
"Certificate Factor": With respect to any Class of REMIC III Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or the Class Notional Amount, as the case may be, and
the denominator of which is the related Initial Class Principal Balance or the
Initial Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class X-1 or Class X-2
Certificate, as of any date of determination, the then notional principal amount
on which such Certificate accrues interest equal to the product of (a) the
Percentage Interest evidenced by such Certificate, multiplied by (b) the then
Class Notional Amount of the Class X-1 or Class X-2 Certificates, as applicable.
"Certificate Owner": With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Depository Participant or on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent.
"Certificate Principal Balance": With respect to any Principal Balance
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the
12
product of (a) the Percentage Interest evidenced by such Certificate, multiplied
by (b) the then Class Principal Balance of the Class of Certificates to which
such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register maintained
and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
giving any consent, approval or waiver pursuant to this Agreement, any
Certificate registered in the name of the Master Servicer, the Special Servicer,
the Trustee, the Depositor or any Affiliate of any of them shall be deemed not
to be outstanding, and the Voting Rights to which it is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver has been
obtained, except as otherwise provided in Sections 7.04 and 11.01. The Trustee
shall be entitled to request and rely upon a certificate of the Master Servicer,
the Special Servicer or the Depositor in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and the
Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register as of the related Record Date.
"Xxxxxxxx Fashion Center A/B Intercreditor Agreement": That certain
agreement among note holders between GACC and the Xxxxxxxx Fashion Center B Note
Holder dated as of October 16, 2002.
"Xxxxxxxx Fashion Center A/B Loan": The Xxxxxxxx Fashion Center Mortgage
Loan, together with the Xxxxxxxx Fashion Center Companion Loans, each of which
is secured by the same Mortgage on the Xxxxxxxx Fashion Center Mortgaged
Property. References herein to the "Xxxxxxxx Fashion Center A/B Loan" shall be
construed to refer to the aggregate indebtedness under the Xxxxxxxx Fashion
Center Mortgage Loan and the related Xxxxxxxx Fashion Center Companion Loans.
"Xxxxxxxx Fashion Center A/B Loan Remittance Amount": With respect to any
Business Day preceding a Distribution Date, an amount equal to: (a) the
aggregate amount of (i) all payments and other collections on or with respect to
the Xxxxxxxx Fashion Center A/B Loan and the related Mortgaged Property (if it
becomes an REO Property) that (A) were received as of the close of business on
the immediately preceding Determination Date and (B) are on deposit or are
required to be on deposit in the related Xxxxxxxx Fashion Center Custodial
Account as of 3:00 p.m. (New York City time) on such date, including any such
payments and other collections transferred to the Xxxxxxxx Fashion Center
Custodial Account from the related REO Account (if established), and (ii) any
and all Delinquency Advances made with respect to the Xxxxxxxx Fashion Center
A/B Loan that are available for remittance to the Certificate Account and the
Xxxxxxxx Fashion Center Companion Holders on such date; net of (b) the portion
of the aggregate amount described in clause (a) of this definition that
represents Monthly Payments that are due on a Due Date following the end of the
related Collection Period and/or any amount
13
payable or reimbursable to any Person from the Xxxxxxxx Fashion Center Custodial
Account pursuant to Section 3.05(e).
"Xxxxxxxx Fashion Center A/B Loan REO Account": As defined in Section
3.16(b).
"Xxxxxxxx Fashion Center A-2 Master Servicer": With respect to the Xxxxxxxx
Fashion Center A-2 Note, the master servicer under the Xxxxxxxx Fashion Center
A-2 Trust Agreement, and its successors; provided, that unless and until the
Xxxxxxxx Fashion Center A-2 Note is securitized, all notices and other
communications required to be delivered to the Xxxxxxxx Fashion Center A-2
Master Servicer in respect of the Xxxxxxxx Fashion Center A-2 Note shall instead
be delivered to GACC.
"Xxxxxxxx Fashion Center A-2 Note": With respect to the Xxxxxxxx Fashion
Center Mortgage Loan, the related promissory note made by the Xxxxxxxx Fashion
Center Mortgagor and designated as "Promissory Note A-2", which is not included
in the Trust (or if any of the foregoing notes are divided or combined into
other notes pursuant to the Xxxxxxxx Fashion Center A/B Intercreditor Agreement,
any such notes into which the foregoing notes are so divided or combined), which
is secured by the related Mortgage on a pari passu basis with the Xxxxxxxx
Fashion Center Mortgage Loan.
"Xxxxxxxx Fashion Center A-2 Note Holder": GACC or any subsequent holder of
the Xxxxxxxx Fashion Center A-2 Note (including the transferee of such Xxxxxxxx
Fashion Center A-2 Note pursuant to the REMIC Declaration made by GACC dated May
29, 2003).
"Xxxxxxxx Fashion Center A-2 Trust Agreement": With respect to the Xxxxxxxx
Fashion Center A-2 Note, any agreement under which any certificates evidencing
interests in the Xxxxxxxx Fashion Center A-2 Note are issued, as from time to
time amended, supplemented or modified.
"Xxxxxxxx Fashion Center A-2 Trustee": With respect to the Xxxxxxxx Fashion
Center A-2 Note, the trustee under the Xxxxxxxx Fashion Center A-2 Trust
Agreement, and its successors; provided, that unless and until the Xxxxxxxx
Fashion Center A-2 Note is securitized, all notices and other communications
required to be delivered to the Xxxxxxxx Fashion Center A-2 Trustee in respect
of the Xxxxxxxx Fashion Center A-2 Note shall instead be delivered to the
Xxxxxxxx Fashion Center A-2 Note Holder.
"Xxxxxxxx Fashion Center B Note": With respect to the Xxxxxxxx Fashion
Center Mortgage Loan, the related promissory note made by the Xxxxxxxx Fashion
Center Mortgagor and designated as "Promissory Note B", which is not included in
the Trust (or if any of the foregoing notes are divided or combined into other
notes pursuant to the Xxxxxxxx Fashion Center A/B Intercreditor Agreement, any
such notes into which the foregoing notes are so divided or combined), which is
secured by the related Mortgage on a subordinate basis with the Xxxxxxxx Fashion
Center Pari Passu Loans.
"Xxxxxxxx Fashion Center B Note Control Appraisal Event": A "Xxxxxxxx
Fashion Center B Note Control Appraisal Event" will exist with respect to the
Xxxxxxxx Fashion Center A/B Loan, if and for so long as:
14
(a) (1) the initial Xxxxxxxx Fashion Center B Note Principal Balance
minus (2) the sum of (x) any payments of principal (whether as scheduled
amortization, Principal Prepayments or otherwise) allocated to, and
received on, such Xxxxxxxx Fashion Center B Note after the Cut-Off Date,
(y) any Appraisal Reduction Amounts for the Xxxxxxxx Fashion Center B Note
and (z) any losses realized with respect to the related liquidated
Mortgaged Property, is less than
(b) 25% of (1) the initial Xxxxxxxx Fashion Center B Note Principal
Balance, minus (2) any payments of principal (whether as scheduled
amortization, Principal Prepayments or otherwise) allocated to, and
received on, such Xxxxxxxx Fashion Center B Note after the Cut-off Date.
For purposes of determining whether a Xxxxxxxx Fashion Center B Note Control
Appraisal Event exists for an Xxxxxxxx Fashion Center A/B Loan, Appraisal
Reduction Amounts for the Xxxxxxxx Fashion Center A/B Loan shall be allocated
first to the related Xxxxxxxx Fashion Center B Note, and then to the Xxxxxxxx
Fashion Center Pari Passu Loans, on a pro rata basis (provided in each case any
such Appraisal Reduction Amount shall not be allocated to the extent (but only
to the extent) that the Xxxxxxxx Fashion Center B Note Principal Balance, net of
such Appraisal Reduction Amounts, would be less than zero).
"Xxxxxxxx Fashion Center B Note Holder": Teachers Insurance and Annuity
Association of America or any subsequent holder of the Xxxxxxxx Fashion Center B
Note.
"Xxxxxxxx Fashion Center B Note Holder Cure Advance": As defined in Section
3.29(c)(ii).
"Xxxxxxxx Fashion Center B Note Holder Purchase Option": The right of the
Xxxxxxxx Fashion Center B Note Holder to purchase the Xxxxxxxx Fashion Center
Mortgage Loan pursuant to Section 3.18.
"Xxxxxxxx Fashion Center B Note Holder Cure Right": As defined in Section
3.29(c)(ii).
"Xxxxxxxx Fashion Center B Note Holder Purchase Right": With respect to the
Xxxxxxxx Fashion Center A/B Loan, any right of the Xxxxxxxx Fashion Center B
Note Holder to purchase the Xxxxxxxx Fashion Center Mortgage Loan as provided in
Section 3.29(c)(ii) hereof and the Xxxxxxxx Fashion Center A/B Intercreditor
Agreement.
"Xxxxxxxx Fashion Center B Note Holder Purchase Right Period": With respect
to the Xxxxxxxx Fashion Center A/B Loan, during the continuance of a Special
Servicing Period or any Xxxxxxxx Fashion Center B Note Control Appraisal Event
for such Mortgage Loan.
"Xxxxxxxx Fashion Center B Note Operating Advisor": An operating advisor
for the Xxxxxxxx Fashion Center A/B Loan selected pursuant to Section 3.28(a)
and any successor thereto.
"Xxxxxxxx Fashion Center B Note Principal Balance": At any time of
determination with respect to the Xxxxxxxx Fashion Center B Note, the principal
balance of such Xxxxxxxx Fashion Center B Note as of the Cut-off Date, less (i)
any payments of principal thereon and (ii) any
15
reductions in such principal balance pursuant to Section 5 of the Xxxxxxxx
Fashion Center A/B Intercreditor Agreement. Notwithstanding the acquisition of
the related Mortgaged Property as REO Property and the cancellation in whole or
in part of the Xxxxxxxx Fashion Center B Note, the Xxxxxxxx Fashion Center B
Note shall be deemed to remain outstanding for purposes of all calculations
regarding payments deemed to be due on such Xxxxxxxx Fashion Center B Note until
such time as the REO Property is sold and the Xxxxxxxx Fashion Center B Note
Principal Balance shall be reduced at such time only by the portion of net
liquidation proceeds applied as a recovery of principal on such Xxxxxxxx Fashion
Center B Note and thereupon applied as a recovery of principal on such Xxxxxxxx
Fashion Center B Note.
"Xxxxxxxx Fashion Center Borrower Affiliate": Any holder of the Xxxxxxxx
Fashion Center B Note that is an Affiliate of the related Mortgagor (including
any holder of Xxxxxxxx Fashion Center B Note or an Affiliate of such a holder
that has made a mezzanine loan to an Affiliate of the related Mortgagor and has
foreclosed on the equity interests in such Mortgagor).
"Xxxxxxxx Fashion Center Companion Distribution Account": The segregated
account or accounts created and maintained by the Xxxxxxxx Fashion Center
Companion Paying Agent pursuant to Section 3.05(f) in trust for the Xxxxxxxx
Fashion Center A-2 Note Holder, which shall be entitled "LaSalle Bank National
Association, as Xxxxxxxx Fashion Center Companion Paying Agent, in trust for the
[Xxxxxxxx Fashion Center A-2 Note Holder] [OR THE NAME OF ANY SUCCESSOR A-2 NOTE
HOLDER]." Any such account or accounts shall be an Eligible Account.
"Xxxxxxxx Fashion Center Companion Holder": The Xxxxxxxx Fashion Center A-2
Note Holder and/or the Xxxxxxxx Fashion Center B Note Holder.
"Xxxxxxxx Fashion Center Companion Loan": Each of the Xxxxxxxx Fashion
Center A-2 Note and the Xxxxxxxx Fashion Center B Note.
"Xxxxxxxx Fashion Center Companion Holder Register": As defined in Section
8.18.
"Xxxxxxxx Fashion Center Companion Loan Securities": For so long as the
Xxxxxxxx Fashion Center Mortgage Loan or the successor REO Loan is part of the
Mortgage Pool, any class of securities backed by any of the Xxxxxxxx Fashion
Center Companion Loans. Any reference herein to a "series" of Xxxxxxxx Fashion
Center Companion Loan Securities shall refer to separate securitizations of one
or more Xxxxxxxx Fashion Center Companion Loans.
"Xxxxxxxx Fashion Center Companion Paying Agent": LaSalle Bank National
Association, in its capacity as Xxxxxxxx Fashion Center Companion Paying Agent
under this Agreement, its successor in interest, or any successor Xxxxxxxx
Fashion Center Companion paying agent appointed as herein provided.
"Xxxxxxxx Fashion Center Controlling Holder": With respect to the Xxxxxxxx
Fashion Center A/B Loan and as of any date of determination (other than a date
of determination occurring at a time when a Xxxxxxxx Fashion Center B Note
Control Appraisal Event is in effect for such Mortgage Loan), the Xxxxxxxx
Fashion Center B Note Holder shall be the "Xxxxxxxx Fashion Center Controlling
Holder" for such Mortgage Loan. With respect to the Xxxxxxxx Fashion Center A/B
Loan and as of any date of determination occurring at a time when a
16
Xxxxxxxx Fashion Center B Note Control Appraisal Event is in effect for such
Mortgage Loan, the Majority Certificateholder of the Controlling Class as of
such date of determination shall constitute the "Xxxxxxxx Fashion Center
Controlling Holder" for the Xxxxxxxx Fashion Center A/B Loan.
For purposes of determining the Xxxxxxxx Fashion Center Controlling Holder
for the Xxxxxxxx Fashion Center A/B Loan, Appraisal Reduction Amounts shall be
applied first to the related Xxxxxxxx Fashion Center B Note and second to the
Xxxxxxxx Fashion Center Pari Passu Loans, pro rata (provided in each case any
such Appraisal Reduction Amount shall not be allocated to the Xxxxxxxx Fashion
Center B Note or Xxxxxxxx Fashion Center Pari Passu Loans to the extent (but
only to the extent) that the Xxxxxxxx Fashion Center B Note Principal Balance,
net of such Appraisal Reduction Amounts, would be less than zero).
"Xxxxxxxx Fashion Center Custodial Account": With respect to the Xxxxxxxx
Fashion Center A/B Loan, the segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(f) on behalf of the
Xxxxxxxx Fashion Center Companion Holders, which shall be entitled "GMAC
Commercial Mortgage Corporation, as Master Servicer, in trust for the
Certificateholders and the Xxxxxxxx Fashion Center Companion Paying Agent, as
their interests may appear." Any such account shall at all times be an Eligible
Account.
"Xxxxxxxx Fashion Center Event of Default": An "Event of Default" as
defined under the Chandler Fashion Center A/B Loan documents.
"Xxxxxxxx Fashion Center Loan": Any of the Xxxxxxxx Fashion Center Mortgage
Loan or any Xxxxxxxx Fashion Center Companion Loan.
"Xxxxxxxx Fashion Center Mortgage Loan": With respect to the Xxxxxxxx
Fashion Center A/B Loan, the Mortgage Note included in the Trust (identified as
loan number GA17732 on the Mortgage Loan Schedule), which is senior in right of
payment to the Xxxxxxxx Fashion Center B Note, and which is pari passu in right
of payment to the Xxxxxxxx Fashion Center A-2 Note to the extent set forth in
the Mortgage Note related to the Xxxxxxxx Fashion Center Mortgage Loan, the
Xxxxxxxx Fashion Center A-2 Note and the Xxxxxxxx Fashion Center B Note.
"Xxxxxxxx Fashion Center Pari Passu Loans": With respect to the Xxxxxxxx
Fashion Center A/B Loan, the Xxxxxxxx Fashion Center Mortgage Loan and the
Xxxxxxxx Fashion Center A-2 Note.
"Xxxxxxxx Fashion Center Sale Consent" As defined in Section 3.18(j).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificate": Any one of the Class A-1, Class A-1A or Class A-2
Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class A-1"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
17
"Class A-1A Certificate": Any one of the Certificates with a "Class A-1A"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class A-2"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
18
"Class LA-1-1 Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-1 Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-1 outstanding from time to
time.
"Class LA-1-2-A Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-A Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-A outstanding from time to
time.
"Class LA-1-2-B Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-B Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-B outstanding from time to
time.
"Class LA-1-2-C Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-C Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-C outstanding from time to
time.
"Class LA-1-2-D Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-D Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-D outstanding from time to
time.
"Class LA-1-2-E Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-E Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-E outstanding from time to
time.
"Class LA-1-2-F Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-F Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-F outstanding from time to
time.
"Class LA-1-2-G Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-G Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-G outstanding from time to
time.
19
"Class LA-1-2-H Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-H Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-H outstanding from time to
time.
"Class LA-1-2-I Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-I Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-I outstanding from time to
time.
"Class LA-1-2-J Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-J Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-J outstanding from time to
time.
"Class LA-1-2-K Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-K Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-K outstanding from time to
time.
"Class LA-2-A Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-2-A Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-2-A outstanding from time to
time.
"Class LA-2-B Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-2-B Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-2-B outstanding from time to
time.
"Class LA-2-C Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-2-C Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-2-C outstanding from time to
time.
"Class LA-2-D Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-2-D Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-2-D outstanding from time to
time.
20
"Class LA1-1 Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-1 Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-1 outstanding from time to
time.
Class LA1-2-A Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-A Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-A outstanding from time to
time.
"Class LA1-2-B Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-B Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-B outstanding from time to
time.
"Class LA1-2-C Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-C Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-C outstanding from time to
time.
"Class LA1-2-D Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-D Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-D outstanding from time to
time.
"Class LA1-2-E Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-E Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-E outstanding from time to
time.
"Class LA1-2-F Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-F Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-F outstanding from time to
time.
"Class LA1-2-G Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-G Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-G outstanding from time to
time.
21
"Class LA1-2-H Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-H Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-H outstanding from time to
time.
"Class LA1-2-I Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-I Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-I outstanding from time to
time.
"Class LA1-2-J Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-J Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-J outstanding from time to
time.
"Class LA1-2-K Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-K Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-K outstanding from time to
time.
"Class LA1-2-L Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-L Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-L outstanding from time to
time.
"Class LA1-2-M Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-M Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-M outstanding from time to
time.
"Class LA1-2-N Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA1-2-N Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA1-2-N outstanding from time to
time.
"Class LB Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LB Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LB outstanding from time to time.
22
"Class LC Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LC Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LC outstanding from time to time.
"Class LD Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LD Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LD outstanding from time to time.
"Class LE Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LE Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LE outstanding from time to time.
"Class LF Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LF Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LF outstanding from time to time.
"Class LG-A Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LG-A Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LG-A outstanding from time to time.
"Class LG-B Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LG-B Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LG-B outstanding from time to time.
"Class LH-A Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LH-A Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LH-A outstanding from time to time.
"Class LH-B Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LH-B Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LH-B outstanding from time to time.
23
"Class LH-C Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LH-C Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LH-C outstanding from time to time.
"Class LJ-A Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LJ-A Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LJ-A outstanding from time to time.
"Class LJ-B Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LJ-B Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LJ-B outstanding from time to time.
"Class LJ-C Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LJ-C Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LJ-C outstanding from time to time.
"Class LK-A Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LK-A Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LK-A outstanding from time to time.
"Class LK-B Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LK-B Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LK-B outstanding from time to time.
"Class LL-A Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LL-A Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LL-A outstanding from time to time.
"Class LL-B Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LL-B Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LL-B outstanding from time to time.
24
"Class LM Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LM Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LM outstanding from time to time.
"Class LN-1 Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LN-1 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LN-1 outstanding from time to time.
"Class LN-2 Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LN-2 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LN-2 outstanding from time to time.
"Class LO Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LO Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LO outstanding from time to time.
"Class LP Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LP Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LP outstanding from time to time.
"Class LQ Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LQ Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LQ outstanding from time to time.
"Class LA-1-1 Component Rate": With respect to any Distribution Date, the
amount, if any, by which the Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class A-1 Pass-Through Rate.
"Class LA-1-2-A Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-A Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-A Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-A Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
25
"Class LA-1-2-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2003 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-B Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-B Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-B Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-B Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2004 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-C Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-C Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-C Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-C Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-C Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-C Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2004 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-D Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-D Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-D Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-D Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-D Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
26
"Class LA-1-2-D Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2005 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-E Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-E Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-E Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-E Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-E Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-E Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2005 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-F Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-F Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-F Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-F Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-F Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-F Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-G Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-G Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-G Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-G Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-G Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
27
"Class LA-1-2-G Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-H Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-H Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-H Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-H Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-H Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-H Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2007 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-I Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-I Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-I Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-I Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-I Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-I Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2007 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-J Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-J Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-J Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-J Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-J Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
28
"Class LA-1-2-J Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-K Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-K Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-K Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-K Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-K Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-K Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-2-A Component Rate": With respect to any Distribution Date, the
sum of the Class LA-2-A Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-2-A Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-2-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-2-A Component Class X-2 Strip Rate and the Class A-2 Pass-Through Rate for
such Distribution Date.
"Class LA-2-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-2 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-2-B Component Rate": With respect to any Distribution Date, the
sum of the Class LA-2-B Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-2-B Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-2-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-2-B Component Class X-2 Strip Rate and the Class A-2 Pass-Through Rate for
such Distribution Date.
29
"Class LA-2-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-2 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-2-C Component Rate": With respect to any Distribution Date, the
sum of the Class LA-2-C Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-2-C Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-2-C Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-2-C Component Class X-2 Strip Rate and the Class A-2 Pass-Through Rate for
such Distribution Date.
"Class LA-2-C Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-2 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-2-D Component Rate": With respect to any Distribution Date, the
sum of the Class LA-2-D Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-2-D Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-2-D Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-2-D Component Class X-2 Strip Rate and the Class A-2 Pass-Through Rate for
such Distribution Date.
"Class LA-2-D Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2010 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-2 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-1 Component Rate": With respect to any Distribution Date, the
amount, if any, by which the Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class A-1A Pass-Through Rate.
"Class LA1-2-A Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-A Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-A Component Class X-2 Strip Rate for such Distribution
Date.
30
"Class LA1-2-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-A Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2003 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-B Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-B Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-B Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA1-2-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-B Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2004 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-C Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-C Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-C Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA1-2-C Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-C Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-C Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2004 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-D Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-D Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-D Component Class X-2 Strip Rate for such Distribution
Date.
31
"Class LA1-2-D Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-D Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-D Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2005 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-E Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-E Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-E Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA1-2-E Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-E Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-E Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2005 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-F Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-F Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-F Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA1-2-F Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-F Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-F Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-G Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-G Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-G Component Class X-2 Strip Rate for such Distribution
Date.
32
"Class LA1-2-G Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-G Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-G Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-H Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-H Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-H Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA1-2-H Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-H Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-H Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2007 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-I Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-I Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-I Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA1-2-I Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-I Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-I Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2007 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-J Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-J Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-J Component Class X-2 Strip Rate for such Distribution
Date.
33
"Class LA1-2-J Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-J Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-J Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-K Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-K Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-K Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA1-2-K Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-K Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-K Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-L Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-L Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-L Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA1-2-L Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-L Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-L Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-M Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-M Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-M Component Class X-2 Strip Rate for such Distribution
Date.
34
"Class LA1-2-M Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-M Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-M Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA1-2-N Component Rate": With respect to any Distribution Date, the
sum of the Class LA1-2-N Component Class X-1 Strip Rate for such Distribution
Date and the Class LA1-2-N Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA1-2-N Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA1-2-N Component Class X-2 Strip Rate and the Class A-1A Pass-Through Rate for
such Distribution Date.
"Class LA1-2-N Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2010 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1A Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LB Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LB Component Class X-1 Strip Rate
for such Distribution Date and the Class LB Component Class X-2 Strip Rate for
such Distribution Date.
"Class LB Component Class X-1 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the Weighted Average Net Mortgage Rate
for such Distribution Date exceeds (ii) the sum of the Class LB Component Class
X-2 Strip Rate and the Class B Pass-Through Rate for such Distribution Date.
"Class LB Component Class X-2 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the lesser of (x) the rate per annum
corresponding to such Distribution Date as set forth in Schedule III hereto or
(y) the Weighted Average Net Mortgage Rate for such Distribution Date exceeds
(ii) the Class B Pass-Through Rate for such Distribution Date.
"Class LC Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LC Component Class X-1 Strip Rate
for such Distribution Date and the Class LC Component Class X-2 Strip Rate for
such Distribution Date.
35
"Class LC Component Class X-1 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the Weighted Average Net Mortgage Rate
for such Distribution Date exceeds (ii) the sum of the Class LC Component Class
X-2 Strip Rate and the Class C Pass-Through Rate for such Distribution Date.
"Class LC Component Class X-2 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the lesser of (x) the rate per annum
corresponding to such Distribution Date as set forth in Schedule III hereto or
(y) the Weighted Average Net Mortgage Rate for such Distribution Date exceeds
(ii) the Class C Pass-Through Rate for such Distribution Date.
"Class LD Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LD Component Class X-1 Strip Rate
for such Distribution Date and the Class LD Component Class X-2 Strip Rate for
such Distribution Date.
"Class LD Component Class X-1 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the Weighted Average Net Mortgage Rate
for such Distribution Date exceeds (ii) the sum of the Class LD Component Class
X-2 Strip Rate and the Class D Pass-Through Rate for such Distribution Date.
"Class LD Component Class X-2 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the lesser of (x) the rate per annum
corresponding to such Distribution Date as set forth in Schedule III hereto or
(y) the Weighted Average Net Mortgage Rate for such Distribution Date exceeds
(ii) the Class D Pass-Through Rate for such Distribution Date.
"Class LE Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LE Component Class X-1 Strip Rate
for such Distribution Date and the Class LE Component Class X-2 Strip Rate for
such Distribution Date.
"Class LE Component Class X-1 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the Weighted Average Net Mortgage Rate
for such Distribution Date exceeds (ii) the sum of the Class LE Component Class
X-2 Strip Rate and the Class E Pass-Through Rate for such Distribution Date.
"Class LE Component Class X-2 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the lesser of (x) the rate per annum
corresponding to such Distribution Date as set forth in Schedule III hereto or
(y) the Weighted Average Net Mortgage Rate for such Distribution Date exceeds
(ii) the Class E Pass-Through Rate for such Distribution Date.
"Class LF Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LF Component Class X-1 Strip Rate
for such Distribution Date and the Class LF Component Class X-2 Strip Rate for
such Distribution Date.
"Class LF-A Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LF-A Component Class X-1 Strip
Rate for such Distribution Date and the Class LF-A Component Class X-2 Strip
Rate for such Distribution Date.
36
"Class LF-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LF-A
Component Class X-2 Strip Rate and the Class F Pass-Through Rate for such
Distribution Date.
"Class LF-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class F Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LF-B Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LF-B Component Class X-1 Strip
Rate for such Distribution Date and the Class LF-B Component Class X-2 Strip
Rate for such Distribution Date.
"Class LF-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LF-B
Component Class X-2 Strip Rate and the Class F Pass-Through Rate for such
Distribution Date.
"Class LF-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class F Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LF-C Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LF-C Component Class X-1 Strip
Rate for such Distribution Date and the Class LF-C Component Class X-2 Strip
Rate for such Distribution Date.
"Class LF-C Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LF-C
Component Class X-2 Strip Rate and the Class F Pass-Through Rate for such
Distribution Date.
"Class LF-C Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2010 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class F Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero. "Class LG-A Component Rate": With respect to any
Distribution Date, the amount, if any, equal to the sum of the Class LG-A
Component Class X-1 Strip Rate for such Distribution Date and the Class LG-A
Component Class X-2 Strip Rate for such Distribution Date.
37
"Class LG-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LG-A
Component Class X-2 Strip Rate and the Class G Pass-Through Rate for such
Distribution Date.
"Class LG-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class G Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LG-B Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LG-B Component Class X-1 Strip
Rate for such Distribution Date and the Class LG-B Component Class X-2 Strip
Rate for such Distribution Date.
"Class LG-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LG-B
Component Class X-2 Strip Rate and the Class G Pass-Through Rate for such
Distribution Date.
"Class LG-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class G Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LH-A Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LH-A Component Class X-1 Strip
Rate for such Distribution Date and the Class LH-A Component Class X-2 Strip
Rate for such Distribution Date.
"Class LH-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LH-A
Component Class X-2 Strip Rate and the Class H Pass-Through Rate for such
Distribution Date.
"Class LH-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2007 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class H Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LH-B Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LH-B Component Class X-1 Strip
Rate for such Distribution Date and the Class LH-B Component Class X-2 Strip
Rate for such Distribution Date.
38
"Class LH-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LH-B
Component Class X-2 Strip Rate and the Class H Pass-Through Rate for such
Distribution Date.
"Class LH-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class H Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LH-C Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LH-C Component Class X-1 Strip
Rate for such Distribution Date and the Class LH-C Component Class X-2 Strip
Rate for such Distribution Date.
"Class LH-C Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LH-C
Component Class X-2 Strip Rate and the Class H Pass-Through Rate for such
Distribution Date.
"Class LH-C Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class H Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LJ-A Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LJ-A Component Class X-1 Strip
Rate for such Distribution Date and the Class LJ-A Component Class X-2 Strip
Rate for such Distribution Date.
"Class LJ-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LJ-A
Component Class X-2 Strip Rate and the Class J Pass-Through Rate for such
Distribution Date.
"Class LJ-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class J Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LJ-B Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LJ-B Component Class X-1 Strip
Rate for such Distribution Date and the Class LJ-B Component Class X-2 Strip
Rate for such Distribution Date.
39
"Class LJ-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LJ-B
Component Class X-2 Strip Rate and the Class J Pass-Through Rate for such
Distribution Date.
"Class LJ-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2007 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class J Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LJ-C Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LJ-C Component Class X-1 Strip
Rate for such Distribution Date and the Class LJ-C Component Class X-2 Strip
Rate for such Distribution Date.
"Class LJ-C Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LJ-C
Component Class X-2 Strip Rate and the Class J Pass-Through Rate for such
Distribution Date.
"Class LJ-C Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2007 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class J Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LK-A Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LK-A Component Class X-1 Strip
Rate for such Distribution Date and the Class LK-A Component Class X-2 Strip
Rate for such Distribution Date.
"Class LK-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LK-A
Component Class X-2 Strip Rate and the Class K Pass-Through Rate for such
Distribution Date.
"Class LK-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class K Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LK-B Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LK-B Component Class X-1 Strip
Rate for such Distribution Date and the Class LK-B Component Class X-2 Strip
Rate for such Distribution Date.
40
"Class LK-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LK-B
Component Class X-2 Strip Rate and the Class K Pass-Through Rate for such
Distribution Date.
"Class LK-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class K Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LL-A Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LL-A Component Class X-1 Strip
Rate for such Distribution Date and the Class LL-A Component Class X-2 Strip
Rate for such Distribution Date.
"Class LL-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LL-A
Component Class X-2 Strip Rate and the Class L Pass-Through Rate for such
Distribution Date.
"Class LL-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the November 2005 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class L Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LL-B Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LL-B Component Class X-1 Strip
Rate for such Distribution Date and the Class LL-B Component Class X-2 Strip
Rate for such Distribution Date.
"Class LL-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LL-B
Component Class X-2 Strip Rate and the Class L Pass-Through Rate for such
Distribution Date.
"Class LL-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the May 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class L Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LM Component Rate": With respect to any Distribution Date, the
amount, if any, by which the Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class M Pass-Through Rate for such Distribution
Date.
41
"Class LN-1 Component Rate": With respect to any Distribution Date, the
amount, if any, by which the Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class N-1 Pass-Through Rate for such Distribution
Date.
"Class LN-2 Component Rate": With respect to any Distribution Date, the
amount, if any, by which the Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class N-2 Pass-Through Rate for such Distribution
Date.
"Class LO Component Rate": With respect to any Distribution Date, the
amount, if any, by which the Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class O Pass-Through Rate for such Distribution
Date.
"Class LP Component Rate": With respect to any Distribution Date, the
amount, if any, by which the Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class P Pass-Through Rate for such Distribution
Date.
"Class LQ Component Rate": With respect to any Distribution Date, the
amount, if any, by which the Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class Q Pass-Through Rate for such Distribution
Date.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class N-1 Certificate": Any one of the Certificates with a "Class N-1"
designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class N-2 Certificate": Any one of the Certificates with a "Class N-2"
designation on the face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class Notional Amount": The Class X-1 Notional Amount or the Class X-2
Notional Amount, as applicable.
"Class O Certificate": Any one of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of Exhibit A-19
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class Principal Balance": The aggregate principal amount of any Class of
Principal Balance Certificates outstanding as of any date of determination. On
each Distribution Date, the Class Principal Balance of each Class of the
Principal Balance Certificates shall be reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
42
Section 4.01(c) and, if and to the extent appropriate, shall be further reduced
on such Distribution Date as provided in Section 4.04(c).
"Class Q Certificate": Any one of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of Exhibit A-21
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class R-I Certificate": Any one of the Certificates with a "Class R-I"
designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-I Distribution Amount": With respect to any Distribution Date, any
amounts available to be paid to the holders of the Class R-I Certificates on
such date after all REMIC I Regular Interests have been paid in full.
"Class R-II Certificate": Any one of the Certificates with a "Class R-II"
designation on the face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class R-II Distribution Amount": With respect to any Distribution Date,
any amounts available to be paid to the holders of the Class R-II Certificates
on such date after all REMIC II Regular Interests have been paid in full.
"Class R-III Certificate": Any one of the Certificates with a "Class R-III"
designation on the face thereof, substantially in the form of Exhibit A-24
attached hereto, and evidencing the sole class of "residual interests" in REMIC
III for purposes of the REMIC Provisions.
"Class R-III Distribution Amount": With respect to any Distribution Date,
any amounts available to be paid to the holders of the Class R-III Certificates
on such date after all REMIC III Regular Certificates have been paid in full.
"Class X Certificate": Any of the Class X-1 or the Class X-2 Certificates.
"Class X-1 Certificate": Any one of the Certificates with a "Class X-1"
designation on the face thereof, substantially in the form of Exhibit A-7,
evidencing "regular interests" in REMIC III for purposes of the REMIC
Provisions.
"Class X-2 Certificate": Any one of the Certificates with a "Class X-2"
designation on the face thereof, substantially in the form of Exhibit A-8,
evidencing "regular interests" in REMIC III for purposes of the REMIC
Provisions.
"Class X Component": Any of the fifty-six (56) components constituting
"regular interests" in REMIC III for purposes of the REMIC Provisions. Such
components are identified as Class LA-1-1, XX-0-0-X, XX-0-0-X, XX-0-0-X,
XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K,
LA-2-A, LA-2-B, LA-2-C, LA-2-D, LA1-1, LA1-2-A, LA1-2-B, LA1-2-C, LA1-2-D,
LA1-2-E, LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M,
LA1-2-N, LB, LC, LD, LE, LF-A, LF-B, LF-C, LG-A, XX-X,
00
XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LK-A, LK-B, LL-A, LL-B, LM, LN-1, LN-2, LO,
LP, and LQ Components.
"Class X-1 Component": As to the Class X-1 Certificates, any one of the
Class X Components applicable to such Class set forth under the definition of
"REMIC II Regular Interests".
"Class X-1 Notional Amount": The aggregate notional principal amount on
which the Class X-1 Certificates accrue interest from time to time which, as of
any date of determination, is equal to the then aggregate Uncertificated
Principal Balances of REMIC Regular Interests XX-0-0, XX-0-0-X, XX-0-0-X,
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J,
LA-1-2-K, LA-2-A, LA-2-B, LA-2-C, LA-2-D, LA1-1, LA1-2-A, LA1-2-B, LA1-2-C,
LA1-2-D, LA1-2-E, LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L,
LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-A, LF-B, LF-C, LG-A, XX-X, XX-X, XX-X,
XX-X, XX-X, XX-X, XX-X, LK-A, LK-B, LL-A, LL-B, LM, XX-0, XX-0, XX, XX, xxx XX.
"Class X-1 Pass-Through Rate": With respect to the Class X-1 Certificates,
(i) for the initial Distribution Date 0.073% per annum; and
(ii) for any Distribution Date thereafter, the per annum rate, expressed as
a percentage, obtained by dividing (a) the sum of (I) the products of (x) the
Uncertificated Principal Balance of each REMIC Regular II Interest XX-0-0,
XX0-0, XX, XX-0, XX-0, XX, XX and LQ immediately prior to such Distribution Date
and (y) the related Component Rate for such Distribution Date and (II) the
products of (x) the Uncertificated Principal Balance of each REMIC Regular II
Interest XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G,
LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-2-A, LA-2-B, LA-2-C, LA-2-D, LA1-2-A,
LA1-2-B, LA1-2-C, LA1-2-D, LA1-2-E, LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J,
LA1-2-K, LA1-2-L, LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-A, LF-B, LF-C, LG-A,
XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LK-A, LK-B, LL-A and LL-B prior to
such Distribution Date and (y) the related Component Class X-1 Strip Rate by (b)
the Class X-1 Notional Amount.
"Class X-2 Component": As to the Class X-2 Certificates, any one of the
Class X Components applicable to such Class set forth under the definition of
"REMIC II Regular Interests".
"Class X-2 Notional Amount": means, the aggregate notional principal amount
on which the Class X-2 Certificates accrue interest from time to time which:
(A) as of any date of determination on or before the November 2003
Distribution Date, is equal to the then aggregate Uncertificated Principal
Balances of REMIC Regular Interests XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K,
LA-2-A, LA-2-B, LA-2-C, LA-2-D, LA1-2-A, LA1-2-B, LA1-2-C, LA1-2-D,
LA1-2-E, LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L,
LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-A, LF-B, LF-C, LG-A, LG-B, XX-X, XX-X,
XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LL-A and LL-B;
44
(B) as of any date of determination after the November 2003
Distribution Date and on or before the May 2004 Distribution Date, is equal
to the then aggregate Uncertificated Principal Balances of REMIC Regular
Interests XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-2-A, LA-2-B, LA-2-C, LA-2-D,
LA1-2-B, LA1-2-C, LA1-2-D, LA1-2-E, LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I,
LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-A, LF-B,
LF-C, LG-A, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LK-A, LK-B, LL-A and
LL-B;
(C) as of any date of determination after the May 2004 Distribution
Date and on or before the November 2004 Distribution Date, is equal to the
then aggregate Uncertificated Principal Balances of REMIC Regular
Interests, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-2-A, LA-2-B, LA-2-C, LA-2-D, LA1-2-C,
LA1-2-D, LA1-2-E, LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K,
LA1-2-L, LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-A, LF-B, LF-C, LG-A, XX-X,
XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LK-A, LK-B, LL-A and LL-B;
(D) as of any date of determination after the November 2004
Distribution Date and on or before the May 2005 Distribution Date, is equal
to the then aggregate Uncertificated Principal Balances of REMIC Regular
Interests, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-I,
LA-1-2-J, LA-1-2-K, LA-2-A, LA-2-B, LA-2-C, LA-2-D, LA1-2-D, LA1-2-E,
LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M,
LA1-2-N, LB, LC, LD, LE, LF-A, LF-B, LF-C, LG-A, XX-X, XX-X, XX-X, XX-X,
XX-X, XX-X, XX-X, LK-A, LK-B, LL-A and LL-B;
(E) as of any date of determination after the May 2005 Distribution
Date and on or before the November 2005 Distribution Date, is equal to the
then aggregate Uncertificated Principal Balances of REMIC Regular
Interests, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
LA-1-2-K, LA-2-A, LA-2-B, LA-2-C, LA-2-D, LA1-2-E, LA1-2-F, LA1-2-G,
LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M, LA1-2-N, LB, LC, LD,
LE, LF-A, LF-B, LF-C, LG-A, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LK-A,
LK-B, LL-A and LL-B;
(F) as of any date of determination after the November 2005
Distribution Date and on or before the May 2006 Distribution Date, is equal
to the then aggregate Uncertificated Principal Balances of REMIC Regular
Interests, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-K,
LA-2-A, LA-2-B, LA-2-C, LA-2-D, LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I,
LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-A, LF-B,
LF-C, LG-A, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LK-A, LK-B and LL-B;
(G) as of any date of determination after the May 2006 Distribution
Date and on or before the November 2006 Distribution Date, is equal to the
then aggregate Uncertificated Principal Balances of REMIC Regular Interests
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-X, LA-2-B, LA-2-C,
LA-2-D, LA1-2-G, LA1-2-H,
45
LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-A,
LF-B, LF-C, LG-A, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X and LK-B;
(H) as of any date of determination after the November 2006
Distribution Date and on or before the May 2007 Distribution Date, is equal
to the then aggregate Uncertificated Principal Balances of REMIC Regular
Interests, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-X, XX-0-X, LA-2-C,
LA-2-D, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M, LA1-2-N, LB,
LC, LD, LE, LF-A, LF-B, LF-C, LG-A, LG-B, LH-A, LH-B, LH-C, LJ-B and LJ-C;
(I) as of any date of determination after the May 2007 Distribution
Date and on or before the November 2007 Distribution Date, is equal to the
then aggregate Uncertificated Principal Balances of REMIC Regular
Interests, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-X, XX-0-X, XX-0-X, LA-2-D,
LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-A,
LF-B, LF-C, LG-A, XX-X, XX-X, XX-X, XX-X and LJ-C;
(J) as of any date of determination after the November 2007
Distribution Date and on or before the May 2008 Distribution Date, is equal
to the then aggregate Uncertificated Principal Balances of REMIC Regular
Interests XX-0-0-X, XX-0-0-X, XX-0-X, XX-0-X, XX-0-X, XX-0-X, XX0-0-X,
LA1-2-K, LA1-2-L, LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-A, LF-B, LF-C, LG-A,
LG-B, LH-B and LH-C;
(K) as of any date of determination after the May 2008 Distribution
Date and on or before the November 2008 Distribution Date, is equal to the
then aggregate Uncertificated Principal Balances of REMIC Regular Interests
LA-1-2-K, LA-2-A, LA-2-B, LA-2-C, LA-2-D, LA1-2-K, LA1-2-L, LA1-2-M,
LA1-2-N, LB, LC, LD, LE, LF-A, LF-B, LF-C, LG-A, LG-B and LH-C;
(L) as of any date of determination after the November 2008
Distribution Date and on or before the May 2009 Distribution Date, is equal
to the then aggregate Uncertificated Principal Balances of REMIC Regular
Interests XX-0-X, XX-0-X, XX-0-X, XX0-0-X, XX0-0-X, LA1-2-N, LB, LC, LD,
LE, LF-A, LF-B, LF-C and LG-B;
(M) as of any date of determination after the May 2009 Distribution
Date and on or before the November 2009 Distribution Date, is equal to the
then aggregate Uncertificated Principal Balances of REMIC Regular Interests
LA-2-C, LA-2-D, LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-B, LF-C;
(N) as of any date of determination after the November 2009
Distribution Date and on or before the May 2010 Distribution Date, is equal
to the then aggregate Uncertificated Principal Balances of REMIC Regular
Interests LA-2-D, LA1-2-N, LB, LC, LD, LE, LF-C; and
(0) with respect to any Distribution Date occurring after the
Distribution Date in May 2010, zero.
46
"Class X-2 Pass-Through Rate": With respect to the Class X-2 Certificates,
(i) for the initial Distribution Date, 2.016% per annum;
(ii) for any Distribution Date after the initial Distribution Date and
on or prior to the May 2010 Distribution Date, the per annum rate,
expressed as a percentage, obtained by dividing (a) the sum of the products
of (I) the Uncertificated Principal Balance of each REMIC Regular II
Interest XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-2-A, LA-2-B, LA-2-C,
LA-2-D, LA1-2-A, LA1-2-B, LA1-2-C, LA1-2-D, LA1-2-E, LA1-2-F, LA1-2-G,
LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M, LA1-2-N, LB, LC, LD,
LE, LF-A, LF-B, LF-C, LG-A, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LK-A,
LK-B, LL-A and LL-B immediately prior to such Distribution Date and (II)
the related Component Class X-2 Strip Rate for such Distribution Date by
(b) the Class X-2 Notional Amount; and
(iii) for any Distribution Date occurring after the May 2010
Distribution Date, 0% per annum.
"Closing Date": May 29, 2003.
"CMSA": The Commercial Mortgage Securities Association, or any association
or organization that is a successor thereto. If neither such association nor any
successor remains in existence, "CMSA" shall be deemed to refer to such other
association or organization as may exist whose principal membership consists of
servicers, trustees, certificateholders, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and whose principal purpose is
the establishment of industry standards for reporting transaction-specific
information relating to commercial mortgage pass-through certificates and
commercial mortgage-backed bonds and the commercial mortgage loans and
foreclosed properties underlying or backing them to investors holding or owning
such certificates or bonds, and any successor to such other association or
organization. If an organization or association described in one of the
preceding sentences of this definition does not exist, "CMSA" shall be deemed to
refer to such other association or organization as shall be selected by the
Master Servicer and reasonably acceptable to the Trustee, the Special Servicer
and the Majority Certificateholder of the Controlling Class.
"CMSA Bond Level File": The data file substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA(R)
Bond Level File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Collateral Summary File": The data file substantially in the form of,
and containing the information called for in, the downloadable form of the
"CMSA(R) Collateral Summary File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from
47
time to time be recommended by the CMSA for commercial mortgage securities
transactions generally.
"CMSA Comparative Financial Status Report": The report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Comparative Financial Status Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Delinquent Loan Status Report": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Financial File": The data file substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA(R)
Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Liquidation Report": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Historical Liquidation Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan Report": The
report substantially in the form of, and containing the information called for
in, the downloadable form of the "Historical Loan Modification and Corrected
Mortgage Loan Report" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Loan Periodic Update File": The data file substantially in the form
of, and containing the information called for in, the downloadable form of the
"CMSA(R) Loan Periodic Update File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Loan Setup File": The data file substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA(R)
Loan Setup File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
48
"CMSA NOI Adjustment Worksheet": The worksheet(s) substantially in the form
of, and containing the information called for in, the downloadable form of the
"Commercial NOI Adjustment Worksheet," "Multifamily NOI Adjustment Worksheet,"
"Lodging NOI Adjustment Worksheet" and/or "Healthcare NOI Adjustment Worksheet,"
as applicable, available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Operating Statement Analysis Report": The report(s) substantially in
the form of, and containing the information called for in, the downloadable form
of the "Commercial Operating Statement Analysis Report," "Multifamily Operating
Statement Analysis Report," "Lodging Operating Statement Analysis Report" and/or
"Healthcare Operating Statement Analysis Report," as applicable, available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Property File": The data file substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA(R)
Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA REO Status Report": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally, or with respect to the
Oakbrook Center Mortgage Loan, the equivalent status report prepared by the
2003-TOP9 Master Servicer.
"CMSA Servicer Watch List": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Servicer
Watch List" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Website": The website of the CMSA located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date and any Mortgage
Loan (including the Xxxxxxxx Fashion Center A/B Loan), the period commencing
immediately following the prior such period (or, in the case of the initial
Collection Period, commencing immediately following the Cut-off Date for such
Mortgage Loan (or the Xxxxxxxx Fashion Center A/B Loan)) and ending on and
including the related Determination Date.
49
"Collection Report": The monthly report to be prepared by the Master
Servicer and delivered to the Trustee and the Depositor pursuant to Section
4.02(b).
"Commission": The Securities and Exchange Commission.
"Compensating Interest Payments": Any payment required to be made by the
Master Servicer pursuant to Section 3.20(f) to cover Prepayment Interest
Shortfalls or Section 3.20(e) to cover Balloon Payment Interest Shortfalls.
"Component Class X-1 Strip Rate": As to each of the Class XX-0-0-X,
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I,
LA-1-2-J, LA-1-2-K, LA-2-A, LA-2-B, LA-2-C, LA-2-D, LA1-2-A, LA1-2-B, LA1-2-C,
LA1-2-D, LA1-2-E, LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L,
LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-A, LF-B, LF-C, LG-A, XX-X, XX-X, XX-X,
XX-X, XX-X, XX-X, XX-X, LK-A, LK-B, LL-A and LL-B Components, the Class LA-1-2-A
Component Class X-1 Strip Rate, the Class LA-1-2-B Component Class X-1 Strip
Rate, the Class LA-1-2-C Component Class X-1 Strip Rate, the Class LA-1-2-D
Component Class X-1 Strip Rate, the Class LA-1-2-E Component Class X-1 Strip
Rate, the Class LA-1-2-F Component Class X-1 Strip Rate, the Class LA-1-2-G
Component Class X-1 Strip Rate, the Class LA-1-2-H Component Class X-1 Strip
Rate, the Class LA-1-2-I Component Class X-1 Strip Rate, the Class LA-1-2-J
Component Class X-1 Strip Rate, the Class LA-1-2-K Component Class X-1 Strip
Rate, the Class LA-2-A Component Class X-1 Strip Rate, the Class LA-2-B
Component Class X-1 Strip Rate, the Class LA-2-C Component Class X-1 Strip Rate,
the Class LA-2-D Component Class X-1 Strip Rate, the Class LA1-2-A Component
Class X-1 Strip Rate, the Class LA1-2-B Component Class X-1 Strip Rate, the
Class LA1-2-C Component Class X-1 Strip Rate, the Class LA1-2-D Component Class
X-1 Strip Rate, the Class LA1-2-E Component Class X-1 Strip Rate, the Class
LA1-2-F Component Class X-1 Strip Rate, the Class LA1-2-G Component Class X-1
Strip Rate, the Class LA1-2-H Component Class X-1 Strip Rate, the Class LA1-2-I
Component Class X-1 Strip Rate, the Class LA1-2-J Component Class X-1 Strip
Rate, the Class LA1-2-K Component Class X-1 Strip Rate, the Class LA1-2-L
Component Class X-1 Strip Rate, the Class LA1-2-M Component Class X-1 Strip
Rate, the Class LA1-2-N Component Class X-1 Strip Rate, the Class LB Component
Class X-1 Strip Rate, the Class LC Component Class X-1 Strip Rate, the Class LD
Component Class X-1 Strip Rate, the LE Component Class X-1 Strip Rate, the LF-A
Component Class X-1 Strip Rate, the Class LF-B Component Class X-1 Strip Rate,
the Class LF-C Component Class X-1 Strip Rate, the Class LG-A Component Class
X-1 Strip Rate, the Class LG-B Component Class X-1 Strip Rate, the Class LH-A
Component Class X-1 Strip Rate, the Class LH-B Component Class X-1 Strip Rate,
the Class LH-C Component Class X-1 Strip Rate, the Class LJ-A Component Class
X-1 Strip Rate, the Class LJ-B Component Class X-1 Strip Rate, the Class LJ-C
Component Class X-1 Strip Rate, the Class LK-A Component Class X-1 Strip Rate,
the Class LK-B Component Class X-1 Strip Rate, the Class LL-A Component Class
X-1 Strip Rate or the Class LL-B Component Class X-1 Strip Rate, as applicable.
"Component Class X-2 Strip Rate": As to each of the Class XX-0-0-X,
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I,
LA-1-2-J, LA-1-2-K, LA-2-A, LA-2-B, LA-2-C, LA-2-D, LA1-2-A, LA1-2-B, LA1-2-C,
LA1-2-D, LA1-2-E, LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L,
LA1-2-M, LA1-2-N, LB, LC, LD, LE, LF-A, LF-B, LF-C, LG-A, LG-B, XX-X, XX-X,
XX-X, XX-X, XX-X, XX-X, XX-X, XX-X,
00
LL-A and LL-B Components, the Class LA-1-2-A Component Class X-2 Strip Rate, the
Class LA-1-2-B Component Class X-2 Strip Rate, the Class LA-1-2-C Component
Class X-2 Strip Rate, the Class LA-1-2-D Component Class X-2 Strip Rate, the
Class LA-1-2-E Component Class X-2 Strip Rate, the Class LA-1-2-F Component
Class X-2 Strip Rate, the Class LA-1-2-G Component Class X-2 Strip Rate, the
Class LA-1-2-H Component Class X-2 Strip Rate, the Class LA-1-2-I Component
Class X-2 Strip Rate, the Class LA-1-2-J Component Class X-2 Strip Rate, the
Class LA-1-2-K Component Class X-2 Strip Rate, the Class LA-2-A Component Class
X-2 Strip Rate, the Class LA-2-B Component Class X-2 Strip Rate, the Class
LA-2-C Component Class X-2 Strip Rate, the Class LA-2-D Component Class X-2
Strip Rate, the Class LA1-2-A Component Class X-2 Strip Rate, the Class LA1-2-B
Component Class X-2 Strip Rate, the Class LA1-2-C Component Class X-2 Strip
Rate, the Class LA1-2-D Component Class X-2 Strip Rate, the Class LA1-2-E
Component Class X-2 Strip Rate, the Class LA1-2-F Component Class X-2 Strip
Rate, the Class LA1-2-G Component Class X-2 Strip Rate, the Class LA1-2-H
Component Class X-2 Strip Rate, the Class LA1-2-I Component Class X-2 Strip
Rate, the Class LA1-2-J Component Class X-2 Strip Rate, the Class LA1-2-K
Component Class X-2 Strip Rate, the Class LA1-2-L Component Class X-2 Strip
Rate, the Class LA1-2-M Component Class X-2 Strip Rate, the Class LA1-2-N
Component Class X-2 Strip Rate, the Class LB Component Class X-2 Strip Rate, the
Class LC Component Class X-2 Strip Rate, the Class LD Component Class X-2 Strip
Rate, the LE Component Class X-2 Strip Rate, the LF-A Component Class X-2 Strip
Rate, the Class LF-B Component Class X-2 Strip Rate, the Class LF-C Component
Class X-2 Strip Rate, the Class LG-A Component Class X-2 Strip Rate, the Class
LG-B Component Class X-2 Strip Rate, the Class LH-A Component Class X-2 Strip
Rate, the Class LH-B Component Class X-2 Strip Rate, the Class LH-C Component
Class X-2 Strip Rate, the Class LJ-A Component Class X-2 Strip Rate, the Class
LJ-B Component Class X-2 Strip Rate, the Class LJ-C Component Class X-2 Strip
Rate, the Class LK-A Component Class X-2 Strip Rate, the Class LK-B Component
Class X-2 Strip Rate, the Class LL-A Component Class X-2 Strip Rate or the Class
LL-B Component Class X-2 Strip Rate, as applicable.
"Component Rate": As to each of the Class X Components, the rate reflected
in the definition for such component herein.
"Controlling Class": As of any date of determination, the outstanding Class
of Principal Balance Certificates with the lowest Payment Priority (the Class A
Certificates being treated as a single Class for this purpose) that has a then
outstanding Class Principal Balance at least equal to 25% of the Initial Class
Principal Balance thereof (or, if no Class of Principal Balance Certificates
outstanding has a Class Principal Balance at least equal to 25% of the Initial
Class Principal Balance thereof, then the "Controlling Class" shall be the
outstanding Class of Principal Balance Certificates with the lowest Payment
Priority). Initially, the Controlling Class will consist of the Class Q
Certificates.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed Securities Trust Services Group
- GMAC Commercial Mortgage Securities, Inc. Series 2003-C1.
51
"Corrected Mortgage Loan": Any Mortgage Loan (and each Cross-Collateralized
Mortgage Loan related to such Mortgage Loan), including the Xxxxxxxx Fashion
Center A/B Loan, that had been a Specially Serviced Mortgage Loan but has ceased
to be such in accordance with the definition of "Specially Serviced Mortgage
Loan" (other than by reason of a Liquidation Event occurring in respect of such
Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan) or a related
Mortgaged Property becoming an REO Property).
"Countryside Village Apartments REMIC": The single-asset REMIC established
with respect to the mortgage loan identified on the Mortgage Loan Schedule as
loan number 30719 which REMIC was created by a REMIC declaration made by GMACCM
on May 1, 2002.
"Countryside Village Apartments REMIC Regular Interest": The REMIC regular
interest in the Countryside Village Apartments REMIC, which regular interest was
transferred and assigned by GMACCM to the Depositor pursuant to the Mortgage
Loan Purchase Agreement between the Depositor and GMACCM.
"Countryside Village Apartments REMIC Residual Interest": The REMIC
residual interest in the Countryside Village Apartments REMIC, which residual
interest was transferred and assigned by GMACCM to the Depositor pursuant to the
Mortgage Loan Purchase Agreement between the Depositor and GMACCM.
"CPR": An assumed constant rate of prepayment each month (which is quoted
on a per annum basis) relative to the then outstanding principal balance of a
pool of mortgage loans for the life of such mortgage loans.
"Credit Lease": With respect to a Credit Lease Loan, if any, the lease
agreement between the Mortgagor as lessor and the Tenant as lessee of the
related Mortgaged Property.
"Credit Lease Loan": Any Mortgage Loan that is identified as a "Credit
Lease Loan" on the Mortgage Loan Schedule.
"Cross-Collateralized Mortgage Loans": Any two or more Mortgage Loans
listed on the Mortgage Loan Schedule that are cross-collateralized with each
other.
"Cure Deposit": As defined in Section 3.29(c)(v).
"Current Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to the aggregate of the following (without duplication):
(a) the principal portions of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments due or deemed due, as the case
may be, in respect of the Mortgage Loans and any related REO Loans for
their respective Due Dates occurring during the same calendar month as such
Distribution Date;
(b) all Principal Prepayments received on the Mortgage Loans during the
related Collection Period;
52
(c) with respect to any Balloon Mortgage Loan as to which the related
Stated Maturity Date occurred or any ARD Loan as to which the related
Anticipated Repayment Date occurred, during or prior to the related
Collection Period, any payment of principal (exclusive of any Principal
Prepayment and any amount described in subclause (d) below) that was made
by or on behalf of the related Mortgagor during the related Collection
Period, net of any portion of such payment that represents a recovery of
the principal portion of any Monthly Payment (other than a Balloon Payment)
due, or the principal portion of any Assumed Monthly Payment deemed due, in
respect of such Mortgage Loan on a Due Date during or prior to the same
calendar month as such Distribution Date and not previously recovered;
(d) that portion of all Liquidation Proceeds (exclusive of any Excess
Liquidation Proceeds) and Insurance Proceeds received on or in respect of
the Mortgage Loans during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal
thereof, in each case net of any Liquidation Expenses and any portion of
such amounts that represents a recovery of the principal portion of any
Monthly Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Monthly Payment deemed due, in respect of any such
Mortgage Loan on a Due Date during or prior to the same calendar month as
such Distribution Date and not previously recovered; and
(e) that portion of all Liquidation Proceeds (exclusive of any Excess
Liquidation Proceeds), Insurance Proceeds and REO Revenues received on or
in respect of any REO Properties during the related Collection Period that
were identified and applied by the Master Servicer as recoveries of
principal of the related REO Loans, in each case net of any Liquidation
Expenses and any portion of such amounts that represents a recovery of the
principal portion of any Monthly Payment (other than a Balloon Payment)
due, or of the principal portion of any Assumed Monthly Payment deemed due,
in respect of any such REO Loan or the related Mortgage Loan on a Due Date
during or prior to same calendar month as such Distribution Date and not
previously recovered.
"Current Ratings Report". A report or reports, dated as of a date no
earlier than three Business Days prior to the related Determination Date,
setting forth: (i) the publicly available corporate credit rating of Standard &
Poor's and the long term debt rating of Xxxxx'x for such Tenant and any
Guarantor as of that date, (ii) the publicly available corporate credit rating
of Standard & Poor's and the long term debt rating of Moody's for such Tenant or
Guarantor included in the report prepared pursuant to this paragraph for the
immediately preceding Determination Date (except for the first Determination
Date), and (iii) whether such Tenant or Guarantor has been placed on credit
watch by Standard & Poor's or on review by Moody's.
"Custodian": A Person who is at any time appointed by the Trustee pursuant
to Section 8.11 as a document custodian for the Mortgage Files, which Person
shall not be the Depositor, any Mortgage Loan Seller or an Affiliate of any of
them. The Trustee shall act as the initial Custodian.
53
"Cut-off Date": With respect to any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan, the Due Date for such Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan in May 2003.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan or
Xxxxxxxx Fashion Center Companion Loan, the outstanding principal balance of
such Mortgage Loan as of the Cut-off Date, after application of all payments of
principal due on or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan (or group
of Cross-Collateralized Mortgage Loans), including the Xxxxxxxx Fashion Center
A/B Loan, for any specified period, the debt service coverage ratio calculated
in accordance with the applicable Servicer Report using the methodologies set
forth in Exhibit F.
"Default Interest": With respect to any Mortgage Loan (or related REO
Loan), including the Xxxxxxxx Fashion Center A/B Loan, any amounts collected
thereon, other than interest at the Revised Rate accrued on any ARD Loan after
its Anticipated Repayment Date, late payment charges and Prepayment Premiums,
that represent penalty interest in excess of interest on the principal balance
of such Mortgage Loan (or REO Loan), including the Xxxxxxxx Fashion Center A/B
Loan, accrued at the related Mortgage Rate.
"Defaulted Mortgage Loan": A Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan that is delinquent in an amount equal to at least two Monthly
Payments or is delinquent thirty days or more in respect of its Balloon Payment,
if any, in either case such delinquency to be determined without giving effect
to any grace period permitted by the related Mortgage or Mortgage Note and
without regard to any acceleration of payments under the related Mortgage and
Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": Noncallable government obligations of (or
non-callable obligations, fully guaranteed as to timely payment by) the United
States of America, as are permitted under the terms of a Mortgage Note or
related Mortgage Loan documents, but only if such obligations or assets
constitute "government securities" under the defeasance rule of the REMIC
Provisions.
"Defeasance Loan": Any Mortgage Loan that is designated as such on the
Mortgage Loan Schedule.
"Defeasance Option": The right of a Mortgagor, pursuant to the terms of the
related Mortgage Note or related Mortgage Loan documents, to obtain a release of
any portion of the related Mortgaged Property from the lien of the related
Mortgage upon the pledge to the Trustee of Defeasance Collateral.
"Defect": As defined in Section 2.02(d).
"Deferred Advance": As defined in Section 3.05(a).
54
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Mortgage Loan which is repurchased from the
Trust pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted.
"Delinquency Advance": As to any Mortgage Loan or related REO Loan, any
advance made by the Master Servicer, the Trustee or the Fiscal Agent pursuant to
Section 4.03.
"Delinquency Advance Date": The Business Day preceding each Distribution
Date.
"Depositor": GMAC Commercial Mortgage Securities, Inc. or its successor in
interest.
"Depository": The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Designated Sub-Servicer": Any Sub-Servicer set forth on the Additional
Servicing Fee Schedule and any successor thereto under the related Designated
Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement": With respect to any Additional
Servicing Fee Mortgage Loan, the agreement among the Master Servicer, the
applicable Designated Sub-Servicer, Archon and in the case of certain
sub-servicing agreements, GSMC, pursuant to which the Designated Sub-Servicer
agrees to service the Additional Servicing Fee Mortgage Loans.
"Determination Date": With respect to any Distribution Date, the first day
of the month in which such Distribution Date occurs, or if such first day is not
a Business Day, the Business Day immediately following.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not (within the meaning of
Treasury Regulations Section 1.512(b)-1(c)(5)) customarily provided to tenants
in connection with the rental of space for occupancy, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers in the ordinary course of a trade or business, the performance
of any construction work thereon or any use of such REO Property in a trade or
business, in each case other than through an Independent Contractor; provided,
however, that the Trustee (or the Special Servicer on behalf of the Trustee)
shall not be considered to Directly Operate an REO Property solely because the
Trustee (or the Special Servicer on behalf of the Trustee) establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance, or makes decisions as to repairs (of the type that would be
deductible under Code Section 162) or capital expenditures with respect to such
REO Property.
55
"Discount Rate": With respect to each Mortgage Loan and Xxxxxxxx Fashion
Center Companion Loan, if applicable, as to which there has been a prepayment
during a Collection Period and for which a Prepayment Premium is collected, the
yield (compounded monthly) for "This Week" as reported by the Federal Reserve
Board in Federal Reserve Statistical Release H.15(519) for the constant maturity
treasury having a maturity coterminous with the Anticipated Repayment Date, in
the case of an ARD Loan, or the Maturity Date, in the case of each other
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan, of such Mortgage Loan
or Xxxxxxxx Fashion Center Companion Loan as of the related Determination Date.
If there is no Discount Rate for instruments having a maturity coterminous with
the Maturity Date or Anticipated Repayment Date, as applicable, of the
applicable Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan, then the
Discount Rate will be equal to the linear interpolation of the yields of the
constant maturity treasuries with maturities next longer and shorter than such
Maturity Date or Anticipated Repayment Date, as the case may be.
"Discount Rate Fraction": With respect to the distribution of any
Prepayment Premium received with respect to any Mortgage Loan to the Holders of
any Class of Principal Balance Certificates on any Distribution Date, a fraction
(not greater than 1.0 or less than zero), (a) the numerator of which is equal to
the excess, if any, of (x) the Pass-Through Rate for such Class of Certificates
over (y) the relevant Discount Rate and (b) the denominator of which is equal to
the excess, if any, of (x) the Mortgage Rate of the related Mortgage Loan over
(y) the relevant Discount Rate.
"Distributable Certificate Interest": With respect to any Class of REMIC
III Regular Certificates, for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by that portion, if any, of the Net Aggregate
Prepayment Interest Shortfall, if any, for such Distribution Date allocated to
such Class of Certificates as set forth below. The Net Aggregate Prepayment
Interest Shortfall, if any, for each Distribution Date shall be allocated on
such Distribution Date among the REMIC III Regular Certificates, pro rata, in
accordance with the respective amounts of Accrued Certificate Interest for such
Classes of Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts created and
maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Trustee, in trust for the registered holders of GMAC Commercial Mortgage
Securities, Inc., Mortgage Pass Through Certificates, Series 2003-C1." Any such
account or accounts shall be an Eligible Account.
"Distribution Date": The 10th day of any month, or if such 10th day is not
a Business Day, the Business Day immediately following, commencing in June 2003.
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": With respect to (i) any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan on or prior to its Maturity Date, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment thereon is
scheduled to be first due; (ii) any Balloon Mortgage Loan after the Maturity
Date therefor, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Mortgage Loan or Xxxxxxxx
56
Fashion Center Companion Loan had been scheduled to be first due; and (iii) any
REO Loan, the day of the month set forth in the related Mortgage Note on which
each Monthly Payment on the related Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan had been scheduled to be first due.
"Eligible Account": An account or subaccount that is any of the following:
(i) maintained with a depository institution or trust company whose (A)
commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least (x) "A-1" by Standard & Poor's and (y) "P-1" by
Moody's, if the deposits are to be held in the account for 30 days or less, or
(B) long-term unsecured debt obligations are rated at least (x) "AA-" by
Standard & Poor's and (y) "Aa3" by Moody's, if the deposits are to be held in
the account more than 30 days, or (ii) a segregated trust account or accounts
maintained in the trust department of the Trustee or other financial institution
subject to regulations regarding fiduciary funds on deposit similar to Section
9.10(b) of Title 12 of the Code of Federal Regulations or (iii) an account or
accounts of a depository institution acceptable to each Rating Agency, as
evidenced by written confirmation from such Rating Agency to the effect that use
of any such account as the Certificate Account or the Distribution Account would
not result in the downgrade, qualification or withdrawal of the rating then
assigned to any Class of Certificates or in the case of an account that relates
solely to the Xxxxxxxx Fashion Center A/B Loan, any Xxxxxxxx Fashion Center
Companion Loan Securities by such Rating Agency.
"Emergency Advance": Any Servicing Advance that must be made within five
Business Days by the Master Servicer (at the direction of the Special Servicer)
in order to avoid any material penalty, any material harm to a Mortgaged
Property or any other material adverse consequence to the Trust Fund.
"Environmental Assessment": A "Phase I assessment" conducted in accordance
with ASTM Standard E 1527-93 or any successor thereto published by ASTM.
"Environmental Policy": The Secured Creditor Impaired Property Policies
(Portfolio) issued by American International Group, Inc., or the blanket
environmental insurance policies issued by Xxxxxx Environmental Ltd., as the
case may be, with respect to the Mortgaged Properties listed on Schedule II.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section 7.01(a).
"Excess Interest": With respect to each of the ARD Loans, if any, interest
accrued on such ARD Loan and allocable to the Excess Rate and, except to the
extent limited by applicable law, interest accrued at the Revised Rate on any
such accrued interest that is unpaid. The Excess Interest is an asset of the
Trust Fund which is a Grantor Trust Asset not held in REMIC I, REMIC II or REMIC
III.
57
"Excess Liquidation Proceeds": With respect to any Mortgage Loan, the
excess of (i) Liquidation Proceeds of that Mortgage Loan or related REO Property
net of any related Liquidation Expenses, over (ii) the amount that would have
been received if a Principal Prepayment in full had been made with respect to
such Mortgage Loan on the Due Date immediately following the date on which such
proceeds were received.
"Excess Liquidation Proceeds Reserve Account": The segregated account or
subaccount created and maintained by the Trustee pursuant to Section 3.04(d) in
trust for the Certificateholders, which shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for the registered holders of GMAC Commercial
Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series 2003-C1 --
Excess Liquidation Proceeds Reserve Account." Any such account shall be an
Eligible Account.
"Excess Rate": With respect to each ARD Loan, if any, after the related
Anticipated Repayment Date, the excess of (i) the applicable Revised Rate over
(ii) the applicable initial Mortgage Rate, each as set forth in the Mortgage
Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination by the Special Servicer
with respect to any Defaulted Mortgage Loan or REO Property (other than a
Mortgage Loan or REO Property, as the case may be, that was purchased by a
Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement or by GMACCM pursuant to Section 4 of the Supplemental Agreement, as
applicable, by the Majority Certificateholder of the Controlling Class or the
applicable Mortgage Loan Seller pursuant to Section 3.18, or by the Master
Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor pursuant to Section 9.01) that, in the reasonable and good faith
judgment of the Special Servicer, there has been a recovery of all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries that, in the
Special Servicer's judgment, exercised without regard to any obligation of the
Master Servicer or the Special Servicer to make payments from its own funds
pursuant to Section 3.07(b), will ultimately be recoverable.
"First Anniversary Reserve Report": The report substantially in the form of
Exhibit K attached hereto which will be based on a schedule provided to the
Master Servicer prior to the Closing Date containing (but not limited to) the
Mortgage Loan name, the work to be completed on the Mortgaged Property, the
expiration date by which the work must be completed and the amount of related
reserve allocated to such work. The First Anniversary Reserve Report will
identify with respect to each Mortgage Loan that is contained in the schedule
provided to the Master Servicer prior to the Closing Date and for which the
required actions described in such schedule have not been completed by such
first anniversary: (i) the amount of reserve payments made as of the Closing
Date, (ii) the amount of reserve payments remaining on the date of the
58
First Anniversary Reserve Report, (iii) the reserve type, (iv) the expiration
date by which the work must be completed and (v) the status of such work (if
contact was made with Mortgagor).
"First Oakbrook Center Letter Agreement": That certain letter agreement
dated February 6, 2003, as amended, by and among the 2003-TOP9 Master Servicer,
the 2003-TOP9 Special Servicer, the 2003-TOP9 Trustee, Xxxxx Fargo Bank
Minnesota, National Association, ABN AMRO Bank N.V., and Xxxxxx Xxxxxxx Xxxx
Xxxxxx Mortgage Capital Inc., as initial holder of one of the Oakbrook Center
Companion Loans that is not an asset of the 2003-TOP9 Pooling and Servicing
Agreement and the initial holder of the Oakbrook Center Mortgage Loan.
"Fiscal Agent": ABN AMRO Bank N.V., a banking organization organized under
the laws of the Netherlands, its successor in interest, or any successor fiscal
agent appointed as provided herein.
"Fiscal Agent Termination Event": As defined in Section 8.15.
"Fixed Rate Mortgage Loan": A Mortgage Loan as to which the related
Mortgage Note provides, as of the Closing Date, for a Mortgage Rate that remains
fixed through the remaining term thereof (without regard to any extension at the
Mortgagor's or the mortgagee's option under the terms of the related Mortgage
Loan documents).
"FNMA": Federal National Mortgage Association or any successor thereto.
"Form 10-K Certification": A certification described in Section 8.14
hereof, substantially in the form of Exhibit M-1 attached hereto.
"GACC": German American Capital Corporation and its successors and assigns.
"Garden Lakes Shopping Center REMIC": The single-asset REMIC established
with respect to the mortgage loan identified on the Mortgage Loan Schedule as
loan number 32563 which REMIC was created by a REMIC declaration made by GMACCM
on May 1, 2002.
"Garden Lakes Shopping Center REMIC Regular Interest": The REMIC regular
interest in the Garden Lakes Shopping Center REMIC, which regular interest was
transferred and assigned by GMACCM to the Depositor pursuant to the Mortgage
Loan Purchase Agreement between the Depositor and GMACCM.
"Garden Lakes Shopping Center REMIC Residual Interest": The REMIC residual
interest in the Garden Lakes Shopping Center REMIC, which residual interest was
transferred and assigned by GMACCM to the Depositor pursuant to the Mortgage
Loan Purchase Agreement between the Depositor and GMACCM.
"GMACCM": GMAC Commercial Mortgage Corporation or its successor in
interest.
"Grantor Trust": That certain "grantor trust" (within the meaning of the
Grantor Trust Provisions), the assets of which include the Grantor Trust Assets.
"Grantor Trust Assets": Any Excess Interest.
59
"Grantor Trust Provisions": Subpart E of Subchapter J and Section 7701 of
the Code, and final Treasury Regulations, published rulings, notices and
announcements, promulgated thereunder, as the foregoing may be in effect from
time to time.
"Gross Margin": With respect to any Adjustable Rate Mortgage Loan (and any
successor REO Loan), if any, the fixed number of percentage points set forth in
the Mortgage Loan Schedule that is added to the applicable value of the related
Index on each Interest Rate Adjustment Date in accordance with the terms of the
related Mortgage Note to determine, subject to any applicable periodic and
lifetime limitations on adjustments thereto, the related Mortgage Rate.
"Ground Lease": The ground lease pursuant to which any Mortgagor holds a
leasehold interest in the related Mortgaged Property.
"Group 1 Mortgage Loan": Any Mortgage Loan or Allocated Mortgage Loan
identified on the Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan or Allocated Mortgage Loan
identified on the Mortgage Loan Schedule as belonging to Loan Group 2.
"GSMC": Xxxxxxx Xxxxx Mortgage Company and its successors and assigns.
"Guarantor": The guarantor under any Guaranty with respect to any Credit
Lease.
"Guaranty": With respect to any Credit Lease Loan, a guaranty agreement
executed by an affiliate of the related Tenant that guarantees the Tenant's
obligations under the related Credit Lease.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, each Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent
or any Affiliate thereof, and (iii) is not connected with the Depositor, the
Master Servicer, any Mortgage Loan Seller, the Special Servicer, the Trustee.
the Fiscal Agent or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor, the Master Servicer, the Special Servicer or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor, the Master Servicer or any Affiliate
thereof, as the case may be.
60
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
Trust Fund or any Xxxxxxxx Fashion Center Companion Holder, delivered to the
Trustee), so long as REMIC I does not receive or derive any income from such
Person; provided, that the relationship between such Person and REMIC I is at
arm's length, all within the meaning of Treasury Regulation Section
1.856-4(b)(5), or any other Person upon receipt by the Trustee of an Opinion of
Counsel, which shall be at no expense to the Trustee or the Trust Fund, to the
effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"Index": With respect to any Adjustable Rate Mortgage Loan (and any
successor REO Loan), for each Interest Rate Adjustment Date, the base index used
to determine the new Mortgage Rate in effect thereon as specified in the related
Mortgage Note. If the Index currently in effect for any Adjustable Rate Mortgage
Loan (or successor REO Loan) ceases to be available, the Master Servicer shall,
subject to Section 3.20(a) and the terms of the related Mortgage Note, select a
comparable alternative index.
"Initial Class Principal Balance": With respect to any Class of Principal
Balance Certificates, the initial Class Principal Balance thereof as of the
Closing Date, in each case as set forth in the Preliminary Statement.
"Initial Class Notional Amount": The Initial Class X-1 Notional Amount or
the Initial Class X-2 Notional Amount, as applicable.
"Initial Class X-1 Notional Amount": With respect to the Class X-1
Certificates, the initial Class Notional Amount thereof as of the Closing Date,
equal to $1,050,901,642.
"Initial Class X-2 Notional Amount": With respect to the Class X-2
Certificates, the initial Class Notional Amount thereof as of the Closing Date,
equal to $1,011,839,000.
"Insurance Policy": With respect to any Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan), any hazard insurance policy, flood insurance
policy, title policy, credit lease enhancement insurance policy, residual value
insurance policy or other insurance policy that is maintained from time to time
in respect of such Mortgage Loan or the related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property or released to the
61
Mortgagor, in either case, in accordance with the Servicing Standard (including
any amounts paid by the Master Servicer or Special Servicer pursuant to Section
3.07) and applicable law.
"Interest Accrual Period": With respect to any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs.
"Interest Rate Adjustment Date": With respect to any Adjustable Rate
Mortgage Loan (and any successor REO Loan), if any, any date on which the
related Mortgage Rate is subject to adjustment pursuant to the related Mortgage
Note. The first Interest Rate Adjustment Date subsequent to the Cut-off Date for
any Adjustable Rate Mortgage Loan is specified in the Mortgage Loan Schedule,
and successive Interest Rate Adjustment Dates for such Mortgage Loan (and any
successor REO Loan) shall thereafter periodically occur with the frequency
specified in the Mortgage Loan Schedule.
"Interest Reserve Account": The segregated account or subaccount created
and maintained by the Trustee pursuant to Section 3.04(e) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Trustee, in trust for the registered holders of GMAC Commercial Mortgage
Securities, Inc., Mortgage Pass-Through Certificates, Series 2003-C1 -- Interest
Reserve Account." Any such account shall be an Eligible Account.
"Interest Reserve Loans": Any Mortgage Loan bearing interest computed on an
actual/360 basis.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, any Holder of a Certificate or any Affiliate of any such Person.
"Investment Account": Each of the Certificate Account, the Distribution
Account, any Lock-Box Account, any Cash Collateral Account, the Interest Reserve
Account, the Special Reserve Account, the Xxxxxxxx Fashion Center Custodial
Account or any REO Account.
"Investor Certification": A certification in the form of Exhibit H-1
hereto.
"Late Collections": With respect to any Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan), all amounts received thereon during any
Collection Period, whether as payments, Insurance Proceeds, Liquidation
Proceeds, payments of Substitution Shortfall Amounts, or otherwise, which
represent late payments or collections of principal or interest due in respect
of such Mortgage Loan (without regard to any acceleration of amounts due
thereunder by reason of default), including the Xxxxxxxx Fashion Center A/B
Loan, on a Due Date in a previous Collection Period (or, in the case of a Late
Due Date Mortgage Loan, on any Due Date prior to the date of receipt) and not
previously recovered. With respect to any Distribution Date and any REO Loan,
all amounts received in connection with the related REO Property during any
Collection Period, whether as Insurance Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of principal or interest
due or deemed due in respect of such REO Loan or the predecessor Mortgage Loan
(without regard to any acceleration of amounts due under such predecessor
Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan) by reason of
default), including the Xxxxxxxx Fashion Center A/B Loan, on a Due Date in a
previous Collection Period (or, in the case of a Late Due Date Mortgage Loan, on
any
62
Due Date prior to the date of receipt) and not previously recovered. The term
"Late Collections" shall specifically exclude Penalty Charges.
"Late Due Date Mortgage Loan": The Mortgage Loans (or successor REO Loan),
identified as loan numbers 30719 and 32563 on the Mortgage Loan Schedule with a
Due Date which occurs after the Determination Date in the same calendar month as
such Due Date.
"Liquidation Event": With respect to any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan, any of the following events: (i) such Mortgage Loan or
Xxxxxxxx Fashion Center Companion Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased or replaced by a Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement or by GMACCM pursuant to Section
4 of the Supplemental Agreement; (iv) such Mortgage Loan is purchased by the
Majority Certificateholder of the Controlling Class or the applicable Mortgage
Loan Seller pursuant to Section 3.18; (vi) such Mortgage Loan is purchased by
the Master Servicer, the Majority Certificateholder of the Controlling Class or
the Depositor pursuant to Section 9.01; (vii) with respect to the Xxxxxxxx
Fashion Center A/B Loan, the Xxxxxxxx Fashion Center Mortgage Loan is purchased
by a Xxxxxxxx Fashion Center Companion Holder or its designee pursuant to the
Xxxxxxxx Fashion Center A/B Intercreditor Agreement; or (viii) with respect to
the Oakbrook Center Mortgage Loan, such loan is purchased pursuant to Section
9.36 of the 2003-TOP9 Pooling and Servicing Agreement. With respect to any REO
Property (and the related REO Loan), any of the following events: (i) a Final
Recovery Determination is made with respect to such REO Property; or (ii) such
REO Property is purchased by the Master Servicer, the Majority Certificateholder
of the Controlling Class or the Depositor pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred by the Special Servicer in connection with
the liquidation of any Specially Serviced Mortgage Loan or REO Property pursuant
to Section 3.09, 3.18 or 3.19 or final payoff of a Corrected Mortgage Loan
(including, without limitation, legal fees and expenses, committee or referee
fees and, if applicable, brokerage commissions, conveyance taxes, any
Liquidation Fee or Workout Fee associated with a final payoff of a Corrected
Mortgage Loan and any other unreimbursed Additional Trust Fund Expense
associated with such Mortgage Loan).
"Liquidation Fee": With respect to each Specially Serviced Mortgage Loan or
REO Property (other than any Specially Serviced Mortgage Loan or REO Property
purchased by the Majority Certificateholder of the Controlling Class or the
applicable Mortgage Loan Seller pursuant to Section 3.18 or by the Master
Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor pursuant to Section 9.01), the fee designated as such and payable to
the Special Servicer pursuant to Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced Mortgage
Loan or REO Property as to which a Liquidation Fee is payable, 1.00%.
"Liquidation Proceeds": Cash amounts (other than Insurance Proceeds and REO
Revenues) received or paid by the Master Servicer or the Special Servicer in
connection with: (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation; (ii) the liquidation of
a Mortgaged Property or other collateral constituting
63
security for a Defaulted Mortgage Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iv) the
purchase of a Mortgage Loan by the Majority Certificateholder of the Controlling
Class or the applicable Mortgage Loan Seller pursuant to Section 3.18; (v) the
repurchase of a Mortgage Loan by a Mortgage Loan Seller pursuant to Section 6 of
the related Mortgage Loan Purchase Agreement or by GMACCM pursuant to Section 4
of the Supplemental Agreement; (vi) the payment of any Substitution Shortfall
Amount by a Mortgage Loan Seller pursuant to Section 6 of the related Mortgage
Loan Purchase Agreement or by GMACCM pursuant to Section 4 of the related
Supplemental Agreement; or (vii) the purchase of a Mortgage Loan or REO Property
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor pursuant to Section 9.01, (viii) the repurchase of a Xxxxxxxx
Fashion Center Companion Loan by the seller thereof pursuant to any loan
purchase agreement; or (ix) with respect to the Xxxxxxxx Fashion Center A/B
Loan, the purchase of the Xxxxxxxx Fashion Center Mortgage Loan (or the purchase
of a Xxxxxxxx Fashion Center Companion Loan) by a Xxxxxxxx Fashion Center
Companion Holder or its designee pursuant to the Xxxxxxxx Fashion Center A/B
Intercreditor Agreement.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans and Allocated
Mortgage Loans that are Group 1 Mortgage Loans and any successor REO Loans with
respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans and Allocated
Mortgage Loans that are Group 2 Mortgage Loans and any successor REO Loans with
respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 2.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any date of
determination, the fraction, expressed as a percentage, the numerator of which
is the then unpaid principal balance of such Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan), and the denominator of which is the Appraised
Value of the related Mortgaged Property as determined by an Appraisal thereof.
"Lock-Box Account": With respect to any Mortgaged Property, if applicable,
any account created pursuant to any documents relating to a Mortgage Loan
(including the Xxxxxxxx Fashion Center A/B Loan) to receive revenues therefrom.
Any Lock-Box Account shall be
64
beneficially owned for federal income tax purposes by the Person who is entitled
to receive the reinvestment income or gain thereon in accordance with the terms
and provisions of the related Mortgage Loan and Section 3.06, which Person shall
be taxed on all reinvestment income or gain thereon. The Master Servicer shall
be permitted to make withdrawals therefrom for deposit into the related Cash
Collateral Accounts.
"Lock-Box Agreement": With respect to any Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan) serviced hereunder, the lock-box agreement, if
any, between the originator of such Mortgage Loan and the Mortgagor, pursuant to
which the related Lock-Box Account, if any, is to be established.
"Loss Reimbursement Amount": With respect to any REMIC I Regular Interest
and any Distribution Date (except the initial Distribution Date, with respect to
which the Loss Reimbursement Amount for such REMIC I Regular Interest will be
zero), an amount equal to (a)(i) the Loss Reimbursement Amount with respect to
such REMIC I Regular Interest for the immediately preceding Distribution Date,
minus (ii) the aggregate of all reimbursements deemed made to REMIC II on the
immediately preceding Distribution Date pursuant to Section 4.01(a) with respect
to such REMIC I Regular Interest, plus (iii) the aggregate of all reductions
made to the Uncertificated Principal Balance of (and, accordingly, the aggregate
of all Realized Losses and Additional Trust Fund Expenses deemed allocated to)
such REMIC I Regular Interest on the immediately preceding Distribution Date
pursuant to Section 4.04(a), plus (b) one month's interest (calculated on the
basis of a 360-day year consisting of twelve 30-day months) on the amount
described in clause (a) at the REMIC I Remittance Rate applicable to such REMIC
I Regular Interest for the current Distribution Date.
"MAI": Member of Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes.
"Master Servicer": GMACCM, or any successor master servicer appointed as
herein provided.
"Master Servicer Remittance Date": The Business Day preceding each
Distribution Date.
"Master Servicing Fee": With respect to any Distribution Date and each
Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan) and REO Loan
serviced hereunder, that portion of the Servicing Fee that has accrued at the
Master Servicing Fee Rate.
"Master Servicing Fee Rate": With respect to each Mortgage Loan (other than
the Oakbrook Center Mortgage Loan) and REO Loan serviced hereunder, 0.02% per
annum. With respect to the Xxxxxxxx Fashion Center A-2 Note, 0.02% per annum.
With respect to the Xxxxxxxx Fashion Center B Note and the Oakbrook Center
Mortgage Loan, 0.0% per annum.
65
"Material Breach": A Breach that materially and adversely affects the value
of a Mortgage Loan, the related Mortgaged Property or the interests of the Trust
Fund therein or of any Certificateholder.
"Material Document Defect": As defined in Section 2.03(a).
"Maturity Date": With respect to any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan as of any date of determination, the date on which the
last payment of principal is due and payable under the related Mortgage Note,
after taking into account all Principal Prepayments received prior to such date
of determination and any extension permitted at the Mortgagor's option under the
terms of the related Mortgage Note (as in effect on the Closing Date) and this
Agreement, but without giving effect to (i) any acceleration of the principal of
such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan by reason of
default thereunder, (ii) any grace period permitted by the related Mortgage
Note, (iii) any modification, waiver or amendment of such Mortgage Loan or
Xxxxxxxx Fashion Center Companion Loan granted or agreed to by the Master
Servicer or Special Servicer pursuant to Section 3.21 or (iv) in the case of any
ARD Loan, the Anticipated Repayment Date for such Mortgage Loan.
"Modified Mortgage Loan": Any Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan as to which any Servicing Transfer Event has occurred and which
has been modified by the Special Servicer pursuant to Section 3.21 in a manner
that:
(A) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan);
(B) except as expressly contemplated by the related Mortgage Loan
documents, results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount not less than the fair market value (as is), as
determined by an Appraisal delivered to the Special Servicer (at the
expense of the related Mortgagor and upon which the Special Servicer may
conclusively rely), of the property to be released; or
(C) in the good faith and reasonable judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or reduces
the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan, the scheduled monthly payment of principal and/or
interest on such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan,
including any Balloon Payment, which is payable by a Mortgagor from time to time
under the terms of the related Mortgage Note (as such may be modified at any
time following the Closing Date) and applicable law, without regard to the
accrual of Excess Interest on or the application of any excess cash flow to pay
principal on any ARD Loan.
"Moody's": Xxxxx'x Investors Service, Inc., or its successor in interest.
If neither such rating agency nor any successor remains in existence, "Moody's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated
66
by the Depositor. Notice of such designation shall be given to the Trustee, the
Master Servicer and the Special Servicer and specific ratings of Xxxxx'x
Investors Service, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan (including the Xxxxxxxx
Fashion Center A/B Loan), separately and collectively, as the context may
require, each mortgage, deed of trust or other instrument securing a Mortgage
Note and creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan and the Xxxxxxxx Fashion
Center Companion Loans, subject to Section 2.01(b), collectively the following
documents:
(1) (A) 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 LaSalle Bank National Association, as trustee for the
registered holders of GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2003-C1, without recourse" and (B) in the
case of each Xxxxxxxx Fashion Center Companion Loan, a copy of the executed
Mortgage Note for such Xxxxxxxx Fashion Center Companion Loan;
(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) and with respect to the Xxxxxxxx
Fashion Center A/B Loan, also to the Trustee, in its capacity as lead
lender on behalf of the Xxxxxxxx Fashion Center Companion Holders;
(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 and
with respect to the Xxxxxxxx Fashion Center A/B Loan, also to the Trustee,
in its capacity as lead lender on behalf of the Xxxxxxxx Fashion Center
Companion Holders;
(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
67
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 and with respect to the Xxxxxxxx
Fashion Center A/B Loan, also to the Trustee, in its capacity as lead
lender on behalf of the Xxxxxxxx Fashion Center Companion Holders;
(8) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon,
where 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;
(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;
68
(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, an original of the bond lease 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 or side
letter 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;
(19) for a hospitality property, copies of franchise agreements, if
any, and franchisor comfort letters, if any;
(20) a copy of the executed REMIC declarations relating to the
Countryside Village Apartments REMIC and Garden Lakes Shopping Center
REMIC; and
(21) a checklist of all documents included in the Mortgage File;
provided, that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
Notwithstanding the foregoing, with respect to the Oakbrook Center Mortgage
Loan, "Mortgage File" shall mean the original Mortgage Note in the amount of
$60,000,000 pertaining to the Oakbrook Center Mortgage Loan, the Oakbrook Center
Letter Agreements and copies of each other document contained in the Mortgage
File held by the 2003-TOP9 Trustee.
"Mortgage Loan": Each of the mortgage loans or mortgage loan interests held
by REMIC I, including the Countryside Village Apartments REMIC Regular Interest
and the Garden Lakes Shopping Center REMIC Regular Interest (or, where the
context requires, the mortgage loan or interest therein held by the REMIC
issuing such Regular Interest), transferred and assigned to the Trustee pursuant
to Section 2.01 and from time to time held in the Trust Fund (including, without
limitation, all Replacement Mortgage Loans, REO Loans and Specially Serviced
Mortgage Loans). As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage, participation certificate or agreement and/or other
security documents contained in the related Mortgage File. As used herein,
unless specifically provided otherwise, the term "Mortgage Loan" includes the
Xxxxxxxx Fashion Center Mortgage Loan and the Oakbrook Center Mortgage Loan
(which are part of the Trust Fund) but excludes the Xxxxxxxx Fashion Center
Companion Loans and the Oakbrook Center Companion Loans (which are not part of
the Trust Fund).
69
"Mortgage Loan Purchase Agreement": With respect to any Mortgage Loan
Seller, each agreement between the Depositor and such Mortgage Loan Seller
relating to the transfer of all of such Mortgage Loan Seller's right, title and
interest in and to the related Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on the
Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Schedule I, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan number and name of the Mortgaged Property;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the (A) Mortgage Rate in effect as of the Cut-off Date and (B)
whether such Mortgage Loan is an Adjustable Rate Mortgage Loan or a Fixed
Rate Loan;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the (A) remaining term to stated maturity, (B) with respect to any
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 any Adjustable Rate Mortgage Loan, the (A) Index,
(B) Gross Margin, (C) first Interest Rate Adjustment Date following the
Cut-off Date and the frequency of Mortgage Rate adjustments, and (D)
maximum and minimum lifetime Mortgage Rate;
(x) whether such Mortgage Loan is an ARD Loan, a Credit Lease Loan, a
Defeasance Loan, a Broker Strip Loan or an Additional Servicing Fee
Mortgage Loan;
(xi) in the case of a Credit Lease Loan, the identity of the Tenant and
the Guarantor under any applicable Guaranty, and the publicly available
corporate credit ratings of such Tenant and Guarantor as of the Closing
Date;
(xii) the Servicing Fee Rate;
(xiii) whether such Mortgage Loan (A) is covered by an Environmental
Policy, (B) is a Cross-Collateralized Mortgage Loan, (C) is subject to a
Ground Lease, (D) has a letter of credit as part of the related Mortgage
File; and
70
(xiv) whether such Mortgage Loan, or with respect to the Mortgage Loan
identified as the "ARC Portfolio" on the Mortgage Loan Schedule, each
related Allocated Mortgage Loan, belongs to Loan Group 1 or Loan Group 2.
Such schedule shall also set forth the aggregate Cut-off Date Principal 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.
"Mortgage Loan Seller": Each of GMACCM, GACC, GSMC and MSMC.
"Mortgage Note": The original executed note evidencing the indebtedness of
a Mortgagor under a Mortgage Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans (including any REO
Loans and Replacement Mortgage Loans, but excluding Deleted Mortgage Loans). As
used herein, unless specifically provided otherwise, the term "Mortgage Pool"
includes the Xxxxxxxx Fashion Center Mortgage Loan and the Oakbrook Center
Mortgage Loan (which are part of the Trust Fund) but excludes the Xxxxxxxx
Fashion Center Companion Loans and the Oakbrook Center Companion Loans (which
are not part of the Trust Fund).
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan on or prior to its Maturity Date, the fixed or adjustable
annualized rate (not including, in the case of any ARD Loan, any increase in the
rate of interest to the Revised Rate) at which interest is scheduled (in the
absence of a default) to accrue on such Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan from time to time in accordance with the terms of the related
Mortgage Note (as such may be modified at any time following the Closing Date)
and applicable law; (ii) any Mortgage Loan or Xxxxxxxx Fashion Center Companion
Loan after its Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Maturity Date; and (iii) any
REO Loan, the annualized rate described in clause (i) or (ii), as applicable,
above determined as if the predecessor Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan had remained outstanding.
"Mortgaged Property": Individually and collectively, as the context may
require, the real property interest (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, as the
context may require, "Mortgaged Property" may mean, collectively, all the
Mortgaged Properties securing such Cross-Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note, including without
limitation, any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note.
"MSMC": Xxxxxx Xxxxxxx Mortgage Capital Inc. and its successors and
assigns.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
71
Distribution Account for such Distribution Date pursuant to Section 3.20(f) in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to any Investment Account for any
Collection Period, the amount, if any, by which the aggregate of all interest
and other income realized during such Collection Period on funds relating to the
Trust Fund held in such account, exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for any
Collection Period, the amount by which the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of
funds relating to the Trust Fund held in such account in accordance with Section
2.02(e) and Section 3.06, exceeds the aggregate of all interest and other income
realized during such Collection Period on such funds, but Net Investment Loss
shall not include any loss with respect to such investment which is incurred
solely as a result of the insolvency of the federally or state chartered
depository institution or trust company that holds such Investment Account so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made and also as of a date no earlier than 60 days prior to the
insolvency, and so long as such depository institution or trust company is not
an Affiliate of either the Master Servicer or the Special Servicer.
"Net Mortgage Rate": With respect to any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan or any REO Loan, as of any date of determination, a rate
per annum equal to the related Mortgage Rate then in effect, minus the Servicing
Fee Rate, but, for purposes of calculating the REMIC I Remittance Rate, the
REMIC II Remittance Rate and Weighted Average Net Mortgage Rate, determined
without regard to any modification, waiver or amendment of the terms of such
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan, whether agreed to by
the Master Servicer or Special Servicer or resulting from (i) the bankruptcy,
insolvency or similar proceeding involving the related Mortgagor or (ii) the
increase in the interest rate attributable to the Revised Rate to any ARD Loan
and, with respect to any Mortgage Loan that does not accrue interest on the
basis of a 360-day year consisting of twelve 30-day months, the Net Mortgage
Rate of such Mortgage Loan for such purposes for any one-month preceding a
related Due Date will be the annualized rate at which interest would have to
accrue in respect of such loan on the basis of a 360-day year consisting of
twelve 30-day months in order to produce the aggregate amount of interest
actually accrued in respect of such loan during such one-month period at the
related Mortgage Rate (net of the related Servicing Fee Rate); provided,
however, that with respect to the Interest Reserve Loans, (i) the Net Mortgage
Rate for the one-month period preceding the Due Dates in (a) January of each
calendar year that is not a leap year and (b) February of each calendar year,
will be determined net of the Withheld Amounts and (ii) the Net Mortgage Rate
for the one-month period preceding the Due Dates in March of each calendar year
will be determined after taking into account the addition of the Withheld
Amounts.
"Net Operating Income": With respect to any Mortgaged Property, for any
specified period, the net operating income calculated in accordance with the
CMSA NOI Adjustment Worksheet using the methodologies set forth in Exhibit F.
72
"Nonrecoverable Advance": Any Nonrecoverable Delinquency Advance,
Nonrecoverable Servicing Advance or Deferred Advance.
"Nonrecoverable Delinquency Advance": Any Delinquency Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Loan which, in
the judgment of the Master Servicer, the Trustee or the Fiscal Agent, as
applicable, will not be ultimately recoverable (together with Advance Interest
thereon) from late payments, Insurance Proceeds or Liquidation Proceeds, or any
other recovery on or in respect of such Mortgage Loan or REO Loan which shall be
evidenced by an Officer's Certificate as provided by Section 4.03(c). With
respect to the Oakbrook Center Mortgage Loan, (i) the pro rata portion (as among
the Oakbrook Center Mortgage Loan and the Oakbrook Center Companion Loans) of
any "Nonrecoverable Advance" (as defined in the 2003-TOP9 Pooling and Servicing
Agreement) allocable to the Oakbrook Center Mortgage Loan pursuant to and in
accordance with the 2003-TOP9 Pooling and Servicing Agreement or (ii) any
Delinquency Advance previously made or proposed to be made that is allocable to
the Oakbrook Center Mortgage Loan and that in the judgment of the Master
Servicer will not be ultimately recoverable from amounts received by the Master
Servicer with respect to the Oakbrook Center Mortgage Loan (which amounts are
set forth in section 3.04(b)(iv)), which, with respect to the Master Servicer,
shall be evidenced by an Officer's Certificate as provided by Section 4.03(c).
"Nonrecoverable Servicing Advance": Any Servicing Advance previously made
or proposed to be made in respect of a Mortgage Loan (other than the Oakbrook
Center Mortgage Loan but including the Xxxxxxxx Fashion Center A/B Loan) or any
REO Property (other than an REO Property related to the Oakbrook Center Mortgage
Loan but including an REO Property related to the Xxxxxxxx Fashion Center A/B
Loan) which, in the judgment of the Master Servicer, the Special Servicer, the
Trustee or Fiscal Agent, as applicable, will not be ultimately recoverable
(together with Advance Interest thereon) from late payments, Insurance Proceeds,
Liquidation Proceeds, or any other recovery on or in respect of such Mortgage
Loan (other than the Oakbrook Center Mortgage Loan but including the Xxxxxxxx
Fashion Center A/B Loan) or REO Property (other than an REO Property related to
the Oakbrook Center Mortgage Loan but including an REO Property related to the
Xxxxxxxx Fashion Center A/B Loan) which shall be evidenced by an Officer's
Certificate as provided by Section 3.11(h).
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class X-2, Class A-1A, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N-1, Class N-2, Class O, Class P,
Class Q or Residual Certificate.
"Oakbrook Center Companion Loans": As defined in the Preliminary Statement.
"Oakbrook Center Intercreditor Agreement": With respect to the Oakbrook
Center Mortgage Loan and the Oakbrook Center Companion Loans, that certain
intercreditor agreement, dated as of January 24, 2003, by and among the holder
of the Oakbrook Center Companion Loan and the holders of the Oakbrook Center
Companion Loans relating to the relative rights of such holders, as amended by
the First Oakbrook Center Letter Agreement and, as may be further amended from
time to time, in accordance with the terms thereof.
73
"Oakbrook Center Letter Agreement": Each of the First Oakbrook Center
Letter Agreement and the Second Oakbrook Center Letter Agreement.
"Oakbrook Center Mortgage Loan": As defined in the Preliminary Statement.
"Officer's Certificate": A certificate signed, as applicable, by a
Servicing Officer of the Master Servicer or the Special Servicer or by a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Master Servicer or the
Special Servicer, acceptable and delivered to the Trustee, except that any
opinion of counsel relating to (a) the qualification of REMIC I, REMIC II or
REMIC III as a REMIC or (b) compliance with the REMIC Provisions, must be an
opinion of counsel who is in fact Independent of the Depositor, the Master
Servicer and the Special Servicer.
"Option": As defined in Section 3.18.
"Option Holder": As defined in Section 3.18.
"Option Notice": As defined in Section 3.18.
"Option Purchase Price": As defined in Section 3.18.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof may have and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate": With respect to:
(1) the Class X-1 Certificates, the Class X-1 Pass-Through Rate;
(2) the Class X-2 Certificates, the Class X-2 Pass-Through Rate;
(3) the Class A-1, Class A-1A, Class A-2, Class B, Class C, Class D and
Class E Certificates, the fixed rate per annum specified for such Class in
the Preliminary Statement;
(4) the Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N-1, Class N-2, Class O, Class P and Class Q Certificates, for any
Distribution Date, the lesser of the fixed rate per annum specified for
such Class in the Preliminary Statement or the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Payment Adjustment Date": With respect to each Adjustable Rate Mortgage
Loan, if any, any date on which the related Monthly Payment is subject to
adjustment pursuant to the related Mortgage Note. The first Payment Adjustment
Date subsequent to the Cut-off Date for each Adjustable Rate Mortgage Loan, if
any, is specified in the Mortgage Loan Schedule, and
74
successive Payment Adjustment Dates for such Adjustable Rate Mortgage Loan shall
thereafter periodically occur with the frequency specified in the Mortgage Loan
Schedule.
"Payment Priority": With respect to any Class of Certificates, the priority
of the Holders thereof in respect of the Holders of the other Classes of
Certificates to receive distributions out of the Available Distribution Amount
for any Distribution Date, as set forth in Section 4.01(c) hereof.
"Penalty Charges": With respect to any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan (or successor REO Loan), any amounts collected thereon
that represent late payment charges or Default Interest.
"Percentage Interest": With respect to any REMIC III Regular Certificate,
the portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or the
Certificate Notional Amount of such Certificate as of the Closing Date, as
specified on the face thereof, and the denominator of which is the Initial Class
Principal Balance or Initial Class Notional Amount of the relevant Class. With
respect to a Residual Certificate, the percentage interest in distributions to
be made with respect to the relevant Class, as stated on the face of such
Certificate.
"Permitted Investments": Securities, instruments, or security entitlements
with respect to one or more of the following:
(1) obligations of or guaranteed as to principal and interest by the
United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United States;
(2) repurchase agreements on obligations specified in clause (i)
maturing not more than 30 days from the date of acquisition thereof;
provided, that the unsecured obligations of the party agreeing to
repurchase such obligations are at the time rated by each Rating Agency in
its highest short-term rating available;
(3) federal funds, unsecured certificates of deposit, time deposits and
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars of any
U.S. depository institution or trust company incorporated under the laws of
the United States or any state thereof or of any domestic branch of a
foreign depository institution or trust company; provided, that the
short-term debt obligations of such depository institution or trust company
at all times since the date of acquisition thereof have been rated by each
Rating Agency in its highest short-term rating available;
(4) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United States
or any state thereof which on the date of acquisition has been rated by
each Rating Agency in its highest short-term rating available; provided,
that such commercial paper shall have a remaining maturity of not more than
30 days;
75
(5) a money market fund rated by each Rating Agency in its highest
rating category;
(6) commercial paper of issuers rated by each Rating Agency in its
highest short-term rating available; provided, that such obligations shall
have a remaining maturity of not more than 30 days and such obligations are
limited to the right to receive only monthly principal and interest
payments;
(7) short-term debt obligations of issuers rated A-1 (or the
equivalent) by each Rating Agency having a maturity of not more than 30
days; provided, that the total amount of such investment does not exceed
the greater of (A) 20% of the then outstanding principal balance of the
Certificates, and (B) the amount of monthly principal and interest payments
(other than Balloon Payments) payable on the Mortgage Loans during the
preceding Collection Period; provided, further, and notwithstanding the
preceding proviso, that if all of the Mortgage Loans are fully amortizing,
then the amount of such investment shall not exceed the amount of monthly
principal and interest payments (other than Balloon Payments) payable on
the Mortgage Loans during the preceding Collection Period;
(8) fully Federal Deposit Insurance Corporation-insured demand and time
deposits in, or certificates of deposit of, or bankers' acceptances issued
by, any bank or trust company, savings and loan association or savings
bank, the short term obligations of which are rated in the highest short
term rating category by each Rating Agency; and
(9) other obligations or securities that are acceptable to each Rating
Agency as a Permitted Investment hereunder and which would not result in
the downgrade, qualification or withdrawal of the then-current rating
assigned to any Class of Certificates or Xxxxxxxx Fashion Center Companion
Loan Securities by each such Rating Agency, as evidenced in writing;
provided, however, that no instrument shall be a Permitted Investment (A) unless
it has a predetermined fixed dollar amount of principal due at maturity that
cannot vary or change, and its interest rate is tied to a single interest rate
index plus a single fixed spread (if any) and moves proportionately with such
index and (B) if it represents, (1) the right to receive only interest payments
with respect to the underlying debt instrument, (2) the right to receive both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity greater than 120% of the yield to
maturity at par of such underlying obligations, (3) an obligation that has a
remaining maturity of greater than 365 days from the date of acquisition
thereof. References herein to the highest rating available on money market funds
shall mean "AAAm" in the case of Standard & Poor's and "Aaa" in the case of
Moody's, and references herein to the highest rating available on unsecured
commercial paper and short-term debt obligations shall mean "A-1+" in the case
of Standard & Poor's and "P-1" in the case of Moody's.
"Permitted Transferee": Any Transferee other than (i) the United States,
any State or political subdivision thereof, any possession of the United States,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all
76
of its activities are subject to tax and, except for FHLMC, a majority of its
board of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code, (v) any
electing large partnership under Section 775 of the Code and (vi) any other
Person so designated by the Trustee based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Person": 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.
"Plan": As defined in Section 5.02(c)(i).
"Post-Determination Date Payment Report". A report prepared by the Master
Servicer showing all payments received after the Determination Date.
"Preliminary Statement": The introductory section in this Agreement found
on pages 1 through 4 hereof.
"Prepayment Assumption": A CPR of 0% and an assumption that a Principal
Prepayment in full will be made on any ARD Loan on its Anticipated Repayment
Date, used for determining the accrual of original issue discount, market
discount and premium, if any, on the REMIC I Regular Interests, the REMIC II
Regular Interests and the Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Mortgage Loan (other than
a Late Due Date Mortgage Loan or the Oakbrook Center Mortgage Loan) that was
subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was received following the Due Date for such
Mortgage Loan in such Collection Period, the amount of interest (net of related
Servicing Fees and, if applicable, Excess Interest) accrued on the amount of
such Principal Prepayment during the period from and after such Due Date, to the
extent collected (without regard to any Prepayment Premium that may have been
collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan (other
than a Late Due Date Mortgage Loan or the Oakbrook Center Mortgage Loan) that
was subject to a Principal Prepayment in full or in part (including, without
limitation, an early Balloon Payment) during any Collection Period, which
Principal Prepayment was received prior to the Due Date for such Mortgage Loan
in such Collection Period, the amount of interest that would have accrued at the
related Net Mortgage Rate on the amount of such Principal Prepayment during the
period from
77
the date as of which such Principal Prepayment was applied to such Mortgage Loan
to but not including such Due Date, to the extent not collected from the related
Mortgagor (without regard to any Prepayment Premium or Excess Interest that may
have been collected).
"Prepayment Premium": Any premium, penalty, yield maintenance charge or fee
paid or payable, as the context requires, by a Mortgagor in connection with a
Principal Prepayment on, or other early collection of principal of, a Mortgage
Loan or Xxxxxxxx Fashion Center Companion Loan (or with respect to the Mortgage
Loan identified as the "ARC Portfolio" on the Mortgage Loan Schedule, an
Allocated Mortgage Loan) or REO Loan.
"Primary Servicing Office": With respect to each of the Master Servicer and
the Special Servicer, the office thereof primarily responsible for performing
its respective duties under this Agreement; initially located in Pennsylvania,
in the case of the Master Servicer, and California, in the case of the Special
Servicer.
"Principal Allocation Fraction": With respect to:
(i) Any Prepayment Premium collected from a Group 1 Mortgage Loan, any
Distribution Date and each of Class A-1, Class A-1A Class A-2, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates, a
fraction the numerator of which is the portion of the Loan Group 1
Principal Distribution Amount allocable to such Class of Certificates for
such Distribution Date and the denominator of which is the Loan Group 1
Principal Distribution Amount for all Classes of Certificates as of such
Distribution Date; and
(ii) Any Prepayment Premium collected from a Group 2 Mortgage Loan, any
Distribution Date and each of Class A-1, Class A-1A Class A-2, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates, a
fraction the numerator of which is the portion of the Loan Group 2
Principal Distribution Amount allocable to such Class of Certificates for
such Distribution Date and the denominator of which is the Loan Group 2
Principal Distribution Amount for all Classes of Certificates as of such
Distribution Date.
"Principal Balance Certificate": Any REMIC III Regular Certificate other
than a Class X-1 or Class X-2 Certificate.
"Principal Distribution Amount": With respect to any Distribution Date, the
aggregate of (i) the Current Principal Distribution Amount for such Distribution
Date and (ii) if such Distribution Date is after the initial Distribution Date,
the excess, if any, of the Principal Distribution Amount for the preceding
Distribution Date, over the aggregate distributions of principal made on the
Principal Balance Certificates in respect of such Principal Distribution Amount
on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor on a
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan which is received in
advance of its scheduled Due Date and which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
78
"Privileged Person": The Depositor, the Master Servicer, the Special
Servicer, the Trustee, a Rating Agency, a designee of the Depositor and any
Person who provides the Trustee with an Investor Certification.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The Prospectus dated November 6, 2002, as supplemented by the
Prospectus Supplement.
"Prospectus Supplement": The Prospectus Supplement, dated May 16, 2003,
relating to the offering of the Registered Certificates.
"PTCE 95-60": As defined in Section 5.02(c)(ii).
"Purchase Price": With respect to any Mortgage Loan, a price equal to the
following: (a) the outstanding principal balance of such Mortgage Loan as of the
date of purchase; plus (b) all accrued and unpaid interest on such Mortgage Loan
at the related Mortgage Rate in effect from time to time to but not including
the Due Date in the Collection Period of purchase; plus (c) all related
unreimbursed Servicing Advances; plus (d) all accrued and unpaid Advance
Interest in respect of related Advances; plus (e) if such Mortgage Loan is being
purchased by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement or by GMACCM pursuant to Section 4 of the
related Supplemental Agreement, (i) all expenses incurred or to be incurred by
the Master Servicer, the Special Servicer, the Depositor and the Trustee in
respect of the Breach or Defect giving rise to the repurchase obligation and
(ii) the aggregate amount of all Special Servicer Fees, Advance Interest (to the
extent, if any, not included in clause (d) above) in respect of related Advances
and Additional Trust Fund Expenses incurred prior to such date of purchase and,
in each case, in respect of the related Mortgage Loan and, if the applicable
Mortgage Loan Seller repurchases such Mortgage Loan after more than 180 days
following its receipt of notice of a material breach of a representation or
warranty, the applicable Mortgage Loan Seller will also be required to pay a
Liquidation Fee; plus (f) if such Mortgage Loan is being purchased pursuant to
the Xxxxxxxx Fashion Center B Note Holder Purchase Right, all related accrued
and unpaid Servicing Fees, Special Servicing Fees, Workout Fees or if the
Purchase Price is being paid in connection with the exercise of a Xxxxxxxx
Fashion Center B Note Holder Purchase Right more than 90 days following the
commencement of a Xxxxxxxx Fashion Center B Note Holder Purchase Right Period,
Liquidation Fees (other than the portion thereof payable from interest on the
amount specified in clause (a)). The Purchase Price for any Cross-Collateralized
Mortgage Loan that is required to be repurchased pursuant to Section 2.03(a) as
a result of a Breach or Defect shall include such additional amounts as are
required to satisfy the "release price" requirements of the applicable Mortgage
Loan documents. With respect to any REO Property, the amount calculated in
accordance with the first sentence of this definition in respect of the related
REO Loan.
"Qualified Appraiser": In connection with the appraisal of any Mortgaged
Property or REO Property, an Independent MAI-designated appraiser or, if a
MAI-designated appraiser is not reasonably available, a state certified
appraiser, in each case, with at least five (5) years experience in appraising
similar types of property.
79
"Qualified Institutional Buyer": A "qualified institutional buyer" as
defined under Rule 144A promulgated under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding company
qualified to write the related Insurance Policy in the relevant jurisdiction.
"Qualifying Substitute Mortgage Loan": In the case of a Deleted Mortgage
Loan, a mortgage loan which, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of the Monthly Payment due in
the month of substitution, not in excess of the Stated Principal Balance of the
Deleted Mortgage Loan; (ii) is accruing interest at a rate of interest at least
equal to that of the Deleted Mortgage Loan; (iii) has a fixed Mortgage Rate if
the Deleted Mortgage Loan is a Fixed Rate Mortgage Loan and an adjustable
Mortgage Rate (with the same Index, Gross Margin and frequency of Interest Rate
Adjustment Dates and Payment Adjustment Dates as the Deleted Mortgage Loan) if
the Deleted Mortgage Loan is an Adjustable Rate Mortgage Loan; (iv) is accruing
interest on the same basis (for example, a 360-day year consisting of twelve
30-day months) as the Deleted Mortgage Loan; (v) has a remaining term to stated
maturity or Anticipated Repayment Date, in the case of any ARD Loan, not greater
than, and not more than two years less than, that of the Deleted Mortgage Loan;
(vi) has an original Loan-to-Value Ratio not higher than that of the Deleted
Mortgage Loan and a current Loan-to-Value Ratio (equal to the principal balance
on the date of substitution divided by its Appraised Value as determined by an
Appraisal dated not more than twelve months prior to the date of substitution)
not higher than the then current Loan-to-Value Ratio of the Deleted Mortgage
Loan; (vii) will comply with all of the representations and warranties relating
to Mortgage Loans set forth in the related Mortgage Loan Purchase Agreement, as
of the date of substitution; (viii) has an Environmental Assessment relating to
the related Mortgaged Property in its Servicing File; (ix) has a Debt Service
Coverage Ratio equal to or greater than that of the Deleted Mortgage Loan; (x)
has been approved by the Majority Certificateholder of the Controlling Class
(and the applicable Mortgage Loan Seller shall pay the reasonable expenses of
the due diligence (including reasonable legal fees) incurred by the Majority
Certificateholder of the Controlling Class in reviewing any proposed Qualifying
Substitute Mortgage Loan); (xi) as to which the Trustee has received an Opinion
of Counsel, at the related Mortgage Loan Seller's expense, that such Qualifying
Substitute Mortgage Loan is a "qualified replacement mortgage" within the
meaning of Section 860G(a)(4) of the Code; and (xii) with respect to a Group 2
Mortgage Loan, is of the same property type as such Group 2 Mortgage Loan;
provided, that no Qualifying Substitute Mortgage Loan may have a Maturity Date
after the date three years prior to the Rated Final Distribution Date; provided,
further, that no such Qualifying Substitute Mortgage Loan shall be substituted
for a Deleted Mortgage Loan unless Rating Agency Confirmation is obtained. In
the event that either one mortgage loan is substituted for more than one Deleted
Mortgage Loan or more than one mortgage loan is substituted for one or more
Deleted Mortgage Loans, then (a) the principal balance referred to in clause (i)
above shall be determined on the basis of aggregate principal balances and (b)
the rates referred to in clauses (ii) and (iii) above and the remaining term to
stated maturity referred to in clause (v) above shall be determined on a
weighted average basis. Whenever a Qualifying Substitute Mortgage Loan is
substituted for a Deleted Mortgage Loan pursuant to this Agreement, the party
effecting such substitution shall certify that such Mortgage Loan meets all of
the requirements of this definition and shall send such certification to the
Trustee.
80
"Rated Final Distribution Date": The Distribution Date in May 2036.
"Rating Agency": Each of Moody's and Standard & Poor's; provided, to the
extent it applies to the Xxxxxxxx Fashion Center A/B Loan, each reference herein
to a "Rating Agency" shall also include any rating agency then rating any
Xxxxxxxx Fashion Center Companion Loan Securities.
"Rating Agency Confirmation": With respect to any matter and any Rating
Agency, where required under this Agreement, confirmation in writing by such
Rating Agency that a proposed action, failure to act, or other event specified
herein will not in and of itself result in the withdrawal, downgrade or
qualification of the rating assigned by such Rating Agency to any Class of
Certificates or Xxxxxxxx Fashion Center Companion Loan Securities, as
applicable, then rated by such Rating Agency. For all purposes of this
Agreement, the placement by a Rating Agency of any Class of Certificates or
Xxxxxxxx Fashion Center Companion Loan Securities, as applicable, on "negative
credit watch" shall constitute a qualification of such Rating Agency's rating of
such Certificates or Xxxxxxxx Fashion Center Companion Loan Securities, as
applicable.
"Realized Loss": With respect to each Defaulted Mortgage Loan as to which a
Final Recovery Determination has been made, or with respect to any REO Loan as
to which a Final Recovery Determination has been made as to the related REO
Property, an amount (not less than zero) equal to (i) the unpaid principal
balance of such Mortgage Loan or REO Loan, as the case may be, as of the Due
Date immediately preceding the date the Final Recovery Determination was made,
plus (ii) all accrued but unpaid interest on such Mortgage Loan or REO Loan, as
the case may be (including all Special Servicing Fees, Workout Fees or other
fees, expenses or items with respect to such Mortgage Loan, Xxxxxxxx Fashion
Center Companion Loan or REO Loan that caused Distributable Certificate Interest
not to be paid in full in any prior Interest Accrual Period, but without taking
into account the amounts described in clause (iv) of this sentence), at the
related Mortgage Rate to but not including the Due Date in the Collection Period
(or, in the case of a Late Due Date Mortgage Loan, the Due Date in the
Collection Period immediately following the Collection Period) in which the
Final Recovery Determination was made, plus (iii) any related unreimbursed
Servicing Advances and Delinquency Advances (to the extent not included in
clause (ii) above) as of the commencement of the Collection Period in which the
Final Recovery Determination was made, together with any new related Servicing
Advances made during such Collection Period, minus (iv) all payments and
proceeds, if any, received in respect of such Mortgage Loan or REO Loan, as the
case may be, during the Collection Period in which such Final Recovery
Determination was made (net of any related Liquidation Expenses and compensation
payable to the Master Servicer, the Special Servicer or the Trustee paid
therefrom).
With respect to any Mortgage Loan (including the Xxxxxxxx Fashion Center
A/B Loan) as to which any portion of the outstanding principal or accrued
interest (other than Excess Interest) owed thereunder was forgiven in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan (including the Xxxxxxxx
Fashion Center A/B Loan) granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.21, the amount of such principal or interest so
forgiven.
81
With respect to any Mortgage Loan (including the Xxxxxxxx Fashion Center
A/B Loan) as to which the Mortgage Rate thereon has been permanently reduced for
any period in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
(including the Xxxxxxxx Fashion Center A/B Loan) granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.21, the amount of the
consequent reduction in the interest portion of each successive Monthly Payment
due thereon. Each such Realized Loss shall be deemed to have been incurred on
the Due Date for each affected Monthly Payment.
"Record Date": With respect to any Distribution Date, the last Business Day
of the calendar month immediately preceding the month in which such Distribution
Date occurs.
"Registered Certificates": The Class A-1, Class A-2, Class B, Class C,
Class D and Class E Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time.
"Related Borrower Group": Any of the groups of Mortgage Loans having the
same or related Mortgagors as identified in Annex A to the Prospectus Supplement
under the column heading "Related Group."
"Release Date": As defined in Section 3.08(d).
"Remaining Certificateholder": Any Holder (or Holders if they act in
unanimity) holding 100% of the Class J, Class K, Class L, Class M, Class N-1,
Class N-2 Class O, Class P, Class Q and Class X Certificates or an assignment of
the voting rights thereof; provided, however, that the Certificate Balances of
the Class A, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero.
"REMIC": A "real estate mortgage investment conduit" as defined in Section
860D of the Code.
"REMIC I": The segregated pool of assets subject hereto, constituting the
primary trust created hereby and to be administered hereunder, with respect to
which a REMIC election is to be made, consisting of: (i) the Mortgage Loans as
from time to time are subject to this Agreement and all payments under and
proceeds of such Mortgage Loans received or receivable after the Cut-off Date
(other than (a) Excess Interest, (b) any Special Reserve Account, (c) payments
of principal, interest and other amounts due and payable on the Mortgage Loans
on or before the Cut-off Date, (d) to the extent properly attributable to the
Xxxxxxxx Fashion Center Companion Loans, all or any portion of the Xxxxxxxx
Fashion Center Custodial Account, REO Property related to the Xxxxxxxx Fashion
Center A/B Loan or the Xxxxxxxx Fashion Center A/B Loan REO Account, and (e) the
Xxxxxxxx Fashion Center Companion Distribution Account), together with the
rights under all documents delivered or caused to be delivered under the
Mortgage Loan Purchase Agreements with respect to the Mortgage Loans by the
Mortgage Loan Sellers; (ii) the Certificateholders' interest in any REO
Properties acquired in respect of the Mortgage Loans; (iii) the
Certificateholders' interest in such funds or assets (other than Excess
82
Interest) as from time to time are deposited in the Distribution Account, the
Certificate Account and the REO Account (if established); and (iv) the rights of
the Depositor under Sections 2, 4(a) and 6 of each Mortgage Loan Purchase
Agreement and the rights of the Depositor under Sections 2 and 4 of each
Supplemental Agreement assigned by the Depositor to the Trustee.
"REMIC I Regular Interest": With respect to each Mortgage Loan (and any
successor REO Loan), the separate non-certificated beneficial ownership interest
in REMIC I issued hereunder and designated as a "regular interest" in REMIC I.
Each REMIC I Regular Interest shall accrue interest at the related REMIC I
Remittance Rate and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance (which shall equal the Cut-off Date Principal
Balance of the related Mortgage Loan). The designation for each REMIC I Regular
Interest shall be the loan number for the initial related Mortgage Loan set
forth in the Mortgage Loan Schedule. If a Replacement Mortgage Loan or Loans are
substituted for any Deleted Mortgage Loan, the REMIC I Regular Interest that
related to the Deleted Mortgage Loan shall thereafter relate to Replacement
Mortgage Loan(s).
"REMIC I Remittance Rate": With respect to any REMIC I Regular Interest for
any Distribution Date, a rate per annum equal to the Net Mortgage Rate in effect
for the related Mortgage Loan or REO Loan, as the case may be. If any Mortgage
Loan included in the Trust Fund as of the Closing Date is replaced by a
Replacement Mortgage Loan or Loans, the REMIC I Remittance Rate for the related
REMIC I Regular Interest shall still be calculated in accordance with the
preceding sentence based on the Net Mortgage Rate for the Deleted Mortgage Loan.
"REMIC II": The segregated pool of assets consisting of all of the REMIC I
Regular Interests, with respect to which a separate REMIC election is to be
made.
"REMIC II Distribution Amount": As defined in Section 4.01(a).
"REMIC II Regular Interest": Any of the fifty-six (56) separate
non-certificated beneficial ownership interests in REMIC II issued hereunder
designated as a "regular interest" in REMIC II and identified individually as
REMIC II Regular Interests XX-0-0, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-2-A,
LA-2-B, LA-2-C, LA-2-D, LA1-1, LA1-2-A, LA1-2-B, LA1-2-C, LA1-2-D, LA1-2-E,
LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M, LA1-2-N,
LB, LC, LD, LE, LF-A, LF-B, LF-C, LG-A, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X,
XX-X, LK-A, LK-B, LL-A, LL-B, LM, LN-1, LN-2, LO, LP and LQ. Each REMIC II
Regular Interest shall accrue interest at the related REMIC II Remittance Rate
in effect from time to time and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto. The designations for the respective REMIC II Regular Interests
are set forth in the Preliminary Statement hereto.
Each REMIC II Regular Interest corresponds to a Class of Principal Balance
Certificates and a Class X Component as follows:
83
REMIC II Class of Principal Class X
Regular Interest Balance Certificates Component
----------------------- ----------------------- ---------------------------------
Class LA-1-1 Class A-1 Class LA-1-1 Component(1)
Class LA-1-2-A Class A-1 Class LA-1-2-A Component(1)(2)
Class LA-1-2-B Class A-1 Class LA-1-2-B Component(1)(2)
Class LA-1-2-C Class A-1 Class LA-1-2-C Component(1)(2)
Class LA-1-2-D Class A-1 Class LA-1-2-D Component(1)(2)
Class LA-1-2-E Class A-1 Class LA-1-2-E Component(1)(2)
Class LA-1-2-F Class A-1 Class LA-1-2-F Component(1)(2)
Class LA-1-2-G Class A-1 Class LA-1-2-G Component(1)(2)
Class LA-1-2-H Class A-1 Class LA-1-2-H Component(1)(2)
Class LA-1-2-I Class A-1 Class LA-1-2-I Component(1)(2)
Class LA-1-2-J Class A-1 Class LA-1-2-J Component(1)(2)
Class LA-1-2-K Class A-1 Class LA-1-2-K Component(1)(2)
Class LA-2-A Class A-2 Class LA-2-A Component(1)(2)
Class LA-2-B Class A-2 Class LA-2-B Component(1)(2)
Class LA-2-C Class A-2 Class LA-2-C Component(1)(2)
Class LA-2-D Class A-2 Class LA-2-D Component(1)(2)
Class LA1-1 Class A-1A Class LA1-1 Component(1)
Class LA1-2-A Class A-1A Class LA1-2-A Component(1)(2)
Class LA1-2-B Class A-1A Class LA1-2-B Component(1)(2)
Class LA1-2-C Class A-1A Class LA1-2-C Component(1)(2)
Class LA1-2-D Class A-1A Class LA1-2-D Component(1)(2)
Class LA1-2-E Class A-1A Class LA1-2-E Component(1)(2)
Class LA1-2-F Class A-1A Class LA1-2-F Component(1)(2)
Class LA1-2-G Class A-1A Class LA1-2-G Component(1)(2)
Class LA1-2-H Class A-1A Class LA1-2-H Component(1)(2)
Class LA1-2-I Class A-1A Class LA1-2-I Component(1)(2)
Class LA1-2-J Class A-1A Class LA1-2-J Component(1)(2)
Class LA1-2-K Class A-1A Class LA1-2-K Component(1)(2)
Class LA1-2-L Class A-1A Class LA1-2-L Component(1)(2)
Class LA1-2-M Class A-1A Class LA1-2-M Component(1)(2)
Class LA1-2-N Class A-1A Class LA1-2-N Component(1)(2)
Class LB Class B Class LB Component(1)(2)
84
REMIC II Class of Principal Class X
Regular Interest Balance Certificates Component
----------------------- ----------------------- ---------------------------------
Class LC Class C Class LC Component(1)(2)
Class LD Class D Class LD Component(1)(2)
Class LE Class E Class LE Component(1)(2)
Class LF-A Class F Class LF-A Component(1)(2)
Class LF-B Class F Class LF-B Component(1)(2)
Class LF-C Class F Class LF-C Component(1)(2)
Class LG-A Class G Class LG-A Component(1)(2)
Class LG-B Class G Class LG-B Component(1)(2)
Class LH-A Class H Class LH-A Component(1)(2)
Class LH-B Class H Class LH-B Component(1)(2)
Class LH-C Class H Class LH-C Component(1)(2)
Class LJ-A Class J Class LJ-A Component(1)(2)
Class LJ-B Class J Class LJ-B Component(1)(2)
Class LJ-C Class J Class LJ-C Component(1)(2)
Class LK-A Class K Class LK-A Component(1)(2)
Class LK-B Class K Class LK-B Component(1)(2)
Class LL-A Class L Class LL-A Component(1)(2)
Class LL-B Class L Class LL-B Component(1)(2)
Class LM Class M Class LM Component(1)
Class LN-1 Class N-1 Class LN-1 Component(1)
Class LN-2 Class N-2 Class LN-2 Component(1)
Class LO Class O Class LO Component(1)
Class LP Class P Class LP Component(1)
Class LQ Class Q Class LQ Component(1)
------------------
(1) Applicable to the Class X-1 Certificates.
(2) Applicable to the Class X-2 Certificates.
85
"REMIC II Remittance Rate": With respect to each REMIC II Regular Interest,
for any Distribution Date, the weighted average of the respective REMIC I
Remittance Rates for all REMIC I Regular Interests for such Distribution Date
(weighted on the basis of the respective Uncertificated Principal Balances of
the related REMIC I Regular Interests immediately prior to such Distribution
Date).
"REMIC III": The segregated pool of assets consisting of all of the REMIC
II Regular Interests, with respect to which a separate REMIC election is to be
made.
"REMIC III Certificate": Any Certificate, other than a Class R-I or Class
R-II Certificate.
"REMIC III Regular Certificate": Any REMIC III Certificate, other than a
Class R-III Certificate.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final Treasury regulations (and, to the extent not inconsistent
with such temporary and final regulations, proposed regulations) and any
published rulings, notices and announcements, promulgated thereunder, as the
foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code, which income, subject
to the terms and conditions of that Section of the Code in its present form,
does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined in
accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(iv) any amount charged for services that are not customarily furnished
in connection with the rental of property to tenants in buildings of a
similar class in the same geographic market as such REO Property within the
meaning of Treasury Regulations Section 1.856-4(b)(1) (whether or not such
charges are separately stated); and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable
86
year of the Trust Fund, such rent is no greater than 15 percent of the
total rent received or accrued under, or in connection with, the lease.
"REO Account": A segregated account or accounts created and maintained by
the Special Servicer pursuant to Section 3.16(b) on behalf of the Trustee in
trust for the Certificateholders, which shall be entitled "GMAC Commercial
Mortgage Corporation, as Special Servicer, in trust for registered holders of
GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 2003-C1."
"REO Acquisition": The acquisition of any REO Property pursuant to Section
3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.19.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be outstanding
with respect to each REO Property. Each REO Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to the applicable Assumed
Monthly Payment and otherwise to have the same terms and conditions as its
predecessor Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan, including,
without limitation, with respect to the calculation of the Mortgage Rate in
effect from time to time (such terms and conditions to be applied without regard
to the default on such predecessor Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan). Each REO Loan shall be deemed to have an initial outstanding
principal balance and Stated Principal Balance equal to the outstanding
principal balance and Stated Principal Balance, respectively, of its predecessor
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan as of the date of the
related REO Acquisition. All Monthly Payments (other than a Balloon Payment),
Assumed Monthly Payments and other amounts due and owing in respect of the
predecessor Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan as of the
date of the related REO Acquisition shall be deemed to continue to be due and
owing in respect of an REO Loan. All amounts payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent in
respect of the predecessor Mortgage Loan or Xxxxxxxx Fashion Center Companion
Loan as of the date of the related REO Acquisition, including, without
limitation, any unreimbursed Advances, together with any Advance Interest
accrued and payable in respect of such Advances, shall continue to be payable or
reimbursable to the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, as the case may be, in respect of an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special Servicer on
behalf and in the name of the Trustee for the benefit of the Certificateholders
(and, in the case of the Mortgaged Property securing the Xxxxxxxx Fashion Center
A/B Loan, for the benefit of the Certificateholders and the Xxxxxxxx Fashion
Center Companion Holders) through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan (other than the Oakbrook
Center Mortgage Loan).
87
"REO Revenues": All income, rents and profits derived from the ownership,
operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Replacement Mortgage Loan": Any Qualifying Substitute Mortgage Loan that
is substituted for one or more Deleted Mortgage Loans.
"Request for Release": A release signed by a Servicing Officer, in the form
of Exhibit D attached hereto.
"Required Appraisal Loan": As defined in Section 3.20(d).
"Reserve Account": The account or accounts created and maintained pursuant
to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan serviced hereunder, any cash amounts or instruments
convertible into cash delivered by the related Mortgagor to be held in escrow by
or on behalf of the mortgagee representing reserves for items such as repairs,
replacements, capital improvements and/or environmental testing and remediation
with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I, Class R-II or Class R-III
Certificate.
"Responsible Officer": When used with respect to the initial Trustee or the
Xxxxxxxx Fashion Center A-2 Trustee, any officer of its Asset Backed Securities
Trust Services Group with direct responsibility for the transaction contemplated
by this Agreement and with respect to any successor Trustee or the Xxxxxxxx
Fashion Center A-2 Trustee, any vice president, any assistant vice president,
any assistant secretary, any assistant treasurer, any trust officer or assistant
trust officer, or any assistant controller in its corporate trust department or
any other officer of the Trustee or the Xxxxxxxx Fashion Center A-2 Trustee
customarily performing functions similar to those performed by any of the above
designated officers to whom a particular matter is referred by the Trustee or
the Xxxxxxxx Fashion Center A-2 Trustee because of such officer's knowledge of
and familiarity with the particular subject.
"Revised Rate": With respect to any ARD Loan, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for such ARD
Loan, as calculated and as set forth in the related Mortgage Note or Mortgage.
"Second Oakbrook Center Letter Agreement": That certain letter agreement
dated May [___], 2003 by and among the 2003-TOP9 Special Servicer, LaSalle Bank
National Association and Xxxxx Fargo Bank Minnesota, N.A.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan), any security agreement or equivalent
instrument, whether contained in the related Mortgage or executed separately,
creating in favor of the holder of such Mortgage
88
a security interest in the personal property constituting security for repayment
of such Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan).
"Senior Certificate": Any Class X, Class A-1, Class A-1A or Class A-2
Certificate.
"Servicer Reports": The CMSA Delinquent Loan Status Report, the CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, the CMSA
Historical Liquidation Report, the CMSA REO Status Report, the CMSA Servicer
Watch List, the CMSA NOI Adjustment Worksheet, the CMSA Comparative Financial
Status Report and the CMSA Operating Statement Analysis Report.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including attorneys' fees and expenses and fees of
real estate brokers) incurred by the Master Servicer, the Trustee or the Fiscal
Agent, as applicable, in connection with the servicing and administering of (a)
a Mortgage Loan (excluding the Oakbrook Center Mortgage Loan but including the
Xxxxxxxx Fashion Center A/B Loan) in respect of which a default, delinquency or
other unanticipated event has occurred or as to which a default is imminent or
(b) an REO Property, including, but not limited to, the cost of (i) compliance
with the obligations of the Master Servicer and/or the Special Servicer set
forth in Section 3.03(c) and 3.09(c), (ii) the preservation, restoration and
protection of a Mortgaged Property, (iii) obtaining any Insurance Proceeds or
any Liquidation Proceeds in respect of any Mortgage Loan (excluding the Oakbrook
Center Mortgage Loan but including the Xxxxxxxx Fashion Center A/B Loan),
Xxxxxxxx Fashion Center Companion Loan or any REO Property, (iv) any enforcement
or judicial proceedings with respect to a Mortgaged Property, including
foreclosures, and (v) the operation, management, maintenance and liquidation of
any REO Property (excluding an REO Property related to the Oakbrook Center
Mortgage Loan but including an REO Property related to the Xxxxxxxx Fashion
Center A/B Loan). All Emergency Advances and Deferred Advances made by the
Master Servicer hereunder shall be considered "Servicing Advances" for the
purposes hereof.
"Servicing Fee Rate": With respect to any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan (including any REO Loan), the percentage rate per annum
set forth with respect to such Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan (including any REO Loan) on the Mortgage Loan Schedule.
"Servicing Fees": With respect to any Distribution Date and each Mortgage
Loan and each REO Loan serviced hereunder, the fee payable to the Master
Servicer pursuant to Section 3.11(a).
"Servicing File": Any documents (including copies of any documents required
to be part of the related Mortgage File), including but not limited to
appraisals, environmental reports, engineering reports, property insurance
information (including the Accord 27 certificate), property inspection reports,
financial statements, escrow analyses, tax bills, financial information on the
borrower, sponsor and guarantor, copies of the letters of credit and copies of
environmental insurance policies, legal opinions, the applicable Mortgage Loan
Seller's asset
89
summary and original underwriting, delivered to the Master Servicer or the
Special Servicer and relating to the origination and servicing of any Mortgage
Loan; provided, that no information that is proprietary to the related Mortgage
Loan Seller shall be considered part of the Servicing File.
"Servicing Officer": Any officer of the Master Servicer or the Special
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans serviced hereunder, whose name and specimen signature appear
on a list of servicing officers furnished by the Master Servicer or the Special
Servicer to the Trustee and the Depositor on the Closing Date as such list may
be amended from time to time thereafter.
"Servicing Standard": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan (other than
the Oakbrook Center Mortgage Loan) or the Xxxxxxxx Fashion Center A/B Loan, the
occurrence of any of the events described in clauses (1) through (8) of the
definition of "Specially Serviced Mortgage Loan."
"Special Reserve Account": A segregated custodial account or accounts
created and maintained by the Master Servicer pursuant to Section 2.02(f) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "GMAC Commercial Mortgage Corporation, as Master Servicer, in trust for
the registered holders of GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2003-C1." Any such account shall be an
Eligible Account and shall be an "outside reserve fund" for purposes of the
REMIC Provisions, which is not held by REMIC I.
"Special Servicer": GMACCM, or any successor special servicer appointed as
herein provided.
"Special Servicing Delay": As defined in Section 3.29(c)(v).
"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan (including either a Mortgage Loan and/or Xxxxxxxx Fashion Center Companion
Loan) and REO Loan, the fee designated as such and payable to the Special
Servicer pursuant to Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan (including either a Mortgage Loan and/or Xxxxxxxx Fashion Center
Companion Loan) and REO Loan, 0.250% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan (including each
related Cross-Collateralized Mortgage Loan and the Xxxxxxxx Fashion Center A/B
Loan but excluding the Oakbrook Center Mortgage Loan), as to which any of the
following events has occurred:
(1) with respect to a Balloon Mortgage Loan, a payment default shall
have occurred with respect to the related Balloon Payment; provided, if the
Mortgagor continues to make its Assumed Monthly Payment and diligently
pursues a refinancing, a Servicing Transfer Event shall not occur with
respect to such Mortgage Loan until 90 days following such default (or, if
the Mortgagor has produced a written refinancing
90
commitment that is reasonably acceptable to the Special Servicer and the
Majority Certificateholder of the Controlling Class, 150 days following
such default); provided, further, the Master Servicer, with the consent of
the Majority Certificateholder of the Controlling Class, shall have the
authority to extend the due date of the related Balloon Payment pursuant to
Section 3.21(a) and in such case, a Servicing Transfer Event shall not
occur with respect to such Mortgage Loan; or
(2) the related Mortgagor has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment required under
the related Mortgage Note or the related Mortgage, which failure continues
unremedied for 60 days; or
(3) the Master Servicer or the Majority Certificateholder of the
Controlling Class, as applicable, has determined in its good faith and
reasonable judgment, that a default in the making of a Monthly Payment or
any other payment required under the related Mortgage Note or the related
Mortgage is likely to occur within 30 days and is likely to remain
unremedied for at least 60 days or, except as provided in clause (1) above,
in the case of a Balloon Payment, for at least 30 days; or
(4) there shall have occurred a default, other than as described in
clause (1) or (2) above, that materially impairs the value of the related
Mortgaged Property as security for the Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan) or otherwise materially and adversely
affects the interests of Certificateholders, which default has continued
unremedied for the applicable grace period under the terms of the Mortgage
Loan (including the Xxxxxxxx Fashion Center A/B Loan) (or, if no grace
period is specified, 60 days); or
(5) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Mortgagor and such decree or
order shall have remained in force undischarged or unstayed for a period of
60 days; or
(6) the related Mortgagor shall have consented to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all of
its property; or
(7) the related Mortgagor shall have admitted in writing its inability
to pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended
payment of its obligations; or
(8) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related Mortgaged
Property;
91
provided, that a Servicing Transfer Event shall be deemed not to have occurred
with respect to the Xxxxxxxx Fashion Center A/B Loan as a result of the
occurrence of an event described in clause (2) or (4) above (unless an event
described in clause (1), (5), (6), (7) or (8) is also occurring), if at the time
of such occurrence the Xxxxxxxx Fashion Center B Note Holder is exercising the
Xxxxxxxx Fashion Center B Note Holder Cure Right pursuant to Section 3.29 and
has made all Xxxxxxxx Fashion Center B Note Holder Cure Advances then required
by Section 3.29; provided, further, a Servicing Transfer Event shall be deemed
not to have occurred with respect to the Xxxxxxxx Fashion Center A/B Loan during
the continuance of a Special Servicing Delay.
A Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan) will cease
to be a Specially Serviced Mortgage Loan when a Liquidation Event has occurred
in respect of such Mortgage Loan (including the Xxxxxxxx Fashion Center A/B
Loan), when the related Mortgaged Property or Properties become REO Property or
Properties, or at such time as such of the following as are applicable occur
with respect to the circumstances identified above that caused the Mortgage Loan
(including the Xxxxxxxx Fashion Center A/B Loan) to be characterized as a
Specially Serviced Mortgage Loan (provided that no other Servicing Transfer
Event then exists with respect to the particular Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan) or any related Cross-Collateralized Mortgage
Loan):
(w) with respect to the circumstances described in clauses (1) and (2)
above, the related Mortgagor has made the applicable Balloon Payment or
three consecutive full and timely Monthly Payments under the terms of such
Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan) (as such
terms may be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the Special Servicer pursuant
to Section 3.21);
(x) with respect to the circumstances described in clauses (3), (5),
(6) and (7) above, such circumstances cease to exist in the good faith and
reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (4) above,
such default is cured; and
(z) with respect to the circumstances described in clause (8) above,
such proceedings are terminated.
"Specified Earnout Reserve Loan": The Mortgage Loans identified on Schedule
V hereto.
"Standard & Poor's": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "Standard & Poor's" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor. Notice of such designation
shall be given to the Trustee, the Master Servicer and the Special Servicer and
specific ratings of Standard & Poor's herein referenced shall be deemed to refer
to the equivalent ratings of the party so designated.
92
"Startup Day": With respect to each of REMIC I, REMIC II and REMIC III, the
day designated as such in Section 10.01(b).
"Stated Maturity Date": With respect to any Mortgage Loan or Xxxxxxxx
Fashion Center Companion Loan, the Due Date on which the last payment of
principal is due and payable under the terms of the related Mortgage Note as in
effect on the Closing Date, without regard to any change in or modification of
such terms in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
or Xxxxxxxx Fashion Center Companion Loan granted or agreed to by the Master
Servicer or Special Servicer pursuant to Section 3.21 or, in the case of any ARD
Loan, the Anticipated Repayment Date for such Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan.
"Stated Principal Balance": With respect to any Mortgage Loan or Xxxxxxxx
Fashion Center Companion Loan (and any related REO Loan), the Cut-off Date
Principal Balance of such Mortgage Loan or Xxxxxxxx Fashion Center Companion
Loan (or in the case of a Replacement Mortgage Loan, as of the related date of
substitution), as reduced on each Distribution Date (to not less than zero) by
(i) all payments (or Delinquency Advances in lieu thereof) of, and all other
collections allocated as provided in Section 1.02 to, principal of or with
respect to such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan (or
related REO Loan) that are (or, if they had not been applied to cover any
Additional Trust Fund Expense, would have been) distributed to
Certificateholders on such Distribution Date, and (ii) the principal portion of
any Realized Loss incurred in respect of such Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan (or related REO Loan) during the related Collection
Period. Notwithstanding the foregoing, if a Liquidation Event occurs in respect
of any Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan or any REO
Property, then the "Stated Principal Balance" of such Mortgage Loan or Xxxxxxxx
Fashion Center Companion Loan or of the related REO Loan, as the case may be,
shall be zero commencing as of the Distribution Date in the Collection Period
next following the Collection Period in which such Liquidation Event occurred.
"Strip Holder": The related entity set forth on the Broker Strip Schedule
for each Mortgage Loan listed thereon, or any heir, successor or assign;
provided, however, that if the agreement which entitles the Strip Holder to
receive the applicable Broker Strip is terminated in either case, the applicable
Strip Holder shall thereafter be the party designated as such in writing by
Xxxxxxx Sachs Mortgage Company to the Master Servicer.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N-1, Class N-2,
Class O, Class P, Class Q or Residual Certificate.
"Sub-Servicer": Any Person with which the Master Servicer has entered into
a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master Servicer
and any Sub-Servicer relating to servicing and administration of Mortgage Loans
as provided in Section 3.23.
93
"Substitution Shortfall Amount": In connection with the substitution of one
or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the
amount, if any, by which the Purchase Price or aggregate Purchase Price, as the
case may be, for such Deleted Mortgage Loan(s) exceeds the initial Stated
Principal Balance or aggregate Stated Principal Balance, as the case may be, of
such Replacement Mortgage Loan(s).
"Supplemental Agreement": Each of (a) the Supplemental Agreement, dated as
of May 16, 2003, between GMACCM and GSMC and (b) the Supplemental Agreement,
dated as of May 16, 2003, between GMACCM and GACC, as such agreements may be
amended, restated or otherwise supplemented from time to time.
"Tax Returns": The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each of REMIC I, REMIC II and REMIC III due to its classification
as a REMIC under the REMIC Provisions, and the federal income tax return to be
filed on behalf of the Grantor Trust due to its classification as a grantor
trust under the Grantor Trust Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, or
Applicable State Law.
"Tenant": With respect to any Credit Lease Loan, the lessee thereunder.
"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust Fund": Collectively, the Excess Interest and all of the assets of
REMIC I, REMIC II and REMIC III.
"Trustee": LaSalle Bank National Association, in its capacity as Trustee
under this Agreement, its successor in interest, or any successor trustee
appointed as herein provided.
"Trustee Fee": With respect to any Distribution Date and each Mortgage Loan
(and the Xxxxxxxx Fashion Center A-2 Note) and REO Loan, an amount equal to
one-twelfth of the product of the Trustee Fee Rate and the aggregate Stated
Principal Balance of each Mortgage Loan and each REO Loan immediately following
the prior Distribution Date.
94
"Trustee Fee Rate": 0.0023%. The Trustee Fee Rate is included in the
Servicing Fee Rate set forth for each Mortgage Loan (including the Xxxxxxxx
Fashion Center A-2 Note) on the Mortgage Loan Schedule.
"UCC": The Uniform Commercial Code of any applicable jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana, the comparable provisions of
Louisiana law.
"Uncertificated Accrued Interest": With respect to any REMIC I Regular
Interest, for any Distribution Date, one month's interest (calculated on the
basis of a 360 day year consisting of twelve 30-day months) at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
I Regular Interest outstanding immediately prior to such Distribution Date. With
respect to any REMIC II Regular Interest, for any Distribution Date, one month's
interest (calculated on the basis of a 360-day year consisting of twelve 30-day
months) at the REMIC II Remittance Rate applicable to such REMIC II Regular
Interest for such Distribution Date, accrued on the Uncertificated Principal
Balance of such REMIC II Regular Interest outstanding immediately prior to such
Distribution Date. The Uncertificated Accrued Interest in respect of any REMIC I
Regular Interest or REMIC II Regular Interest for any Distribution Date shall be
deemed to accrue during the applicable Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
expressed as a percentage, the numerator of which is the Uncertificated Accrued
Interest in respect of such REMIC I Regular Interest for such Distribution Date,
and the denominator of which is the aggregate Uncertificated Accrued Interest in
respect of all the REMIC I Regular Interests for such Distribution Date. With
respect to any REMIC II Regular Interest for any Distribution Date, an amount
equal to: (a) the Uncertificated Accrued Interest in respect of such REMIC II
Regular Interest for such Distribution Date; reduced (to not less than zero) by
(b) the portion, if any, of the Net Aggregate Prepayment Interest Shortfall, if
any, for such Distribution Date allocated to such REMIC II Regular Interest
which shall be allocated in the same manner as such Net Aggregate Prepayment
Interest Shortfall is allocated amongst the corresponding REMIC III Regular
Certificates.
"Uncertificated Principal Balance": The principal amount of any REMIC I
Regular Interest or REMIC II Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Principal Balance of
each REMIC I Regular Interest shall equal the Cut-off Date Principal Balance of
the related Mortgage Loan. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC I Regular Interest shall be reduced by all
distributions of principal deemed to have been made thereon on such Distribution
Date pursuant to Section 4.01(a) and, if and to the extent appropriate, shall be
further reduced on such Distribution Date as provided in Section 4.04(a). As of
the Closing Date, the Uncertificated Principal Balance of each REMIC II Regular
Interest shall equal the amount set forth in the
95
Preliminary Statement hereto as its initial Uncertificated Principal Balance. On
each Distribution Date, the Uncertificated Principal Balance of each such REMIC
II Regular Interest shall be reduced by all distributions of principal deemed to
have been made thereon on such Distribution Date pursuant to Section 4.01(b)
and, if and to the extent appropriate, shall be further reduced on such
Distribution Date as provided in Section 4.04(b).
"Underwriter": Each of Xxxxxxx, Xxxxx & Co., Xxxxxx Xxxxxxx & Co.
Incorporated and Deutsche Bank Securities Inc.
"Uninsured Cause": Any cause of damage to property subject to a Mortgage
such that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies or flood insurance policies required to be
maintained pursuant to Section 3.07.
"United States Person": A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any State thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 98% of the Voting Rights shall be allocated among the Holders
of the various outstanding Classes of Principal Balance Certificates in
proportion to the respective Class Principal Balances of their Certificates, 1%
of the Voting Rights shall be allocated among the Holders of the Class X-1 and
Class X-2 Certificates in proportion to the respective Class Notional Amounts of
such Certificates and the remaining Voting Rights shall be allocated equally
among the Holders of the respective Classes of the Residual Certificates. Voting
Rights allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests evidenced by their
respective Certificates.
"Weighted Average Net Mortgage Rate": With respect to any Distribution
Date, the REMIC II Remittance Rate for each REMIC II Regular Interest for such
Determination Date.
"Withheld Amount": With respect to (a) each Interest Reserve Loan and (b)
each Distribution Date occurring in (i) January of each calendar year that is
not a leap year and (ii) February of each calendar year, an amount equal to one
day's interest at the related Mortgage Rate (less any Servicing Fee payable
therefrom) on the respective Stated Principal Balance as of the Due Date in the
month in which such Distribution Date occurs, to the extent that a Monthly
Payment or Delinquency Advance is made in respect thereof.
96
"Workout": Any written modification, waiver, amendment, restructuring or
workout of a Specially Serviced Mortgage Loan or a related Mortgage Note entered
into with a Mortgagor in accordance with Section 3.09 hereof.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as to
which a Workout Fee is payable, 1.00%.
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool and the
Xxxxxxxx Fashion Center A/B Loan.
(a) All amounts collected in respect of any group of related
Cross-Collateralized Mortgage Loans in the form of payments from Mortgagors,
Insurance Proceeds and Liquidation Proceeds, shall be applied by the Master
Servicer among such Mortgage Loans (including the Xxxxxxxx Fashion Center A/B
Loan) in accordance with the express provisions of the related loan documents
and, in the absence of such express provisions, on a pro rata basis in
accordance with the respective amounts then "due and owing" as to each such
Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan). All amounts
collected in respect of any Mortgage Loan (including the Xxxxxxxx Fashion Center
A/B Loan) (whether or not such Mortgage Loan (including the Xxxxxxxx Fashion
Center A/B Loan) is a Cross-Collateralized Mortgage Loan) in the form of
payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be
applied to amounts due and owing under the related Mortgage Note and Mortgage
(including, without limitation, for principal and accrued and unpaid interest)
in accordance with the express provisions of the related Mortgage Note and
Mortgage and, in the absence of such express provisions, shall be applied for
purposes of this Agreement: first, as a recovery of any related unreimbursed
Servicing Advances and, if applicable, unpaid Liquidation Expenses, Additional
Trust Fund Expenses or other fees and expenses payable to the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent and attributable to such
Mortgage Loan; second, as a recovery of accrued and unpaid interest at the
related Mortgage Rate on such Mortgage Loan or Xxxxxxxx Fashion Center Companion
Loan to but not including, as appropriate, the date of receipt or, in the case
of a full Monthly Payment from any Mortgagor, the related Due Date; third, as a
recovery of principal of such Mortgage Loan (including the Xxxxxxxx Fashion
Center A/B Loan) then due and owing, including, without limitation, by reason of
acceleration of the Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan
following a default thereunder (or, if a Liquidation Event has occurred in
respect of such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan, as a
recovery of principal to the extent of its entire remaining unpaid principal
balance); fourth, as a recovery of amounts to be currently applied to the
payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items;
fifth, as a recovery of Reserve Funds to the extent then required to be held in
escrow; sixth, as a recovery of any Prepayment Premium then due and owing under
such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan; seventh, as a
recovery of any Penalty Charges then due and owing under such Mortgage Loan or
Xxxxxxxx Fashion Center Companion Loan; eighth, as a recovery of any other
amounts (other than Excess Interest) then due and owing under such Mortgage Loan
or Xxxxxxxx Fashion Center Companion Loan; ninth, as a recovery of any remaining
principal of such Mortgage Loan or
97
Xxxxxxxx Fashion Center Companion Loan to the extent of its entire remaining
unpaid principal balance; and tenth, if such Mortgage Loan is an ARD Loan, as a
recovery of any Excess Interest then due and owing on such Mortgage Loan.
(b) Collections in respect of each REO Property (exclusive of amounts
to be applied to the payment of the costs of operating, managing, maintaining
and disposing of such REO Property) shall be treated: first, as a recovery of
any related unreimbursed Servicing Advances and unpaid or unreimbursed
Additional Trust Fund Expenses or other fees and expenses payable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent and attributable
to such REO Property or the related REO Loan; second, as a recovery of accrued
and unpaid interest on the related REO Loan at the related Mortgage Rate to but
not including the Due Date in the month of receipt; third, as a recovery of
principal of the related REO Loan to the extent of its entire unpaid principal
balance; and fourth, as a recovery of any other amounts deemed to be due and
owing in respect of the related REO Loan.
(c) The applications of amounts received in respect of any Mortgage
Loan or any REO Property pursuant to subsections (a) and (b) of this Section
1.02 shall be determined by the Master Servicer in its good faith judgment.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
SECTION 2.01 Establishment of Trust; Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof,
does hereby establish a trust, appoint the Trustee to serve as trustee of such
trust and assign to the Trustee without recourse for the benefit of the
Certificateholders all the right, title and interest of the Depositor, including
any security interest therein for the benefit of the Depositor, in, to and under
(i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections
2, 4(a), 6 and 13 of each Mortgage Loan Purchase Agreement and Sections 2, 4 and
6 of each Supplemental Agreements and (iii) all other assets included or to be
included in REMIC I. Such assignment includes all interest and principal
received or receivable on or with respect to the Mortgage Loans (other than
payments of principal, interest and other amounts due and payable on the
Mortgage Loans on or before the Cut-off Date). The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be
delivered to and deposited with, the Trustee or the Custodian (with a copy to
the Master Servicer), on or before the Closing Date, the Mortgage File for each
of such Mortgage Loan Seller's Mortgage Loans so assigned. If the related
Mortgage Loan Seller cannot deliver, or cause to be delivered as to any Mortgage
Loan, the original Mortgage Note, the Mortgage Loan Seller shall deliver a copy
or duplicate original of such Mortgage Note,
98
together with an affidavit certifying that the original thereof has been lost or
destroyed. If the related Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (2), (4), (11)(A) and (12) of the definition of "Mortgage
File", with evidence of recording or filing, as the case may be, thereon,
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, or because
such original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) shall be deemed to have been satisfied as to such missing document or
instrument, and such missing document or instrument shall be deemed to have been
included in the Mortgage File; provided, that a photocopy of such missing
document or instrument (certified by the related Mortgage Loan Seller to be a
true and complete copy of the original thereof submitted for recording or
filing, as the case may be) is delivered to the Trustee or a Custodian appointed
thereby on or before the Closing Date 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 Trustee
within 180 days of the Closing Date (or within such longer period after the
Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the related Mortgage Loan Seller has provided
the Trustee with evidence of such recording or filing, as the case may be, or
has certified to the Trustee as to the occurrence of such recording or filing,
as the case may be, and is, as certified to the Trustee no less often than
quarterly, in good faith attempting to obtain from the appropriate county
recorder's or filing office such original or copy). Upon request, the Trustee
shall provide a copy of any such certification, promptly after receipt thereof,
to any Certificate Owner holding a Certificate in the Controlling Class that has
provided a certification to the Trustee in the form attached hereto as Exhibit
H. If the related Mortgage Loan 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 (9) of the definition of "Mortgage File"
solely because such policy has not yet been issued, the delivery requirements of
this Section 2.01(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 related Mortgage Loan Seller shall have
delivered to the Trustee or a Custodian appointed thereby, on or before the
Closing Date, a commitment for title insurance "marked-up" at the closing of
such Mortgage Loan, and the related Mortgage Loan Seller shall deliver to the
Trustee or such Custodian, 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 the definition of "Mortgage File"
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. Neither the Trustee nor any Custodian shall in any
way be liable for any failure by the Mortgage Loan Seller or the Depositor to
comply with the delivery requirements of the Mortgage Loan Purchase Agreement
and this Section 2.01(b).
If any of the endorsements referred to in clause (1) of the definition of
"Mortgage File" are delivered to the Trustee in blank, the Trustee shall be
responsible for promptly (and in any event within 45 days of the Closing Date)
completing the related endorsement and if any of the
99
assignments referred to in clauses (3), (5) and (7) of the definition of
"Mortgage File" are delivered to the Trustee in blank, the related Mortgage Loan
Seller shall be responsible for completing the related assignment, in the name
of the Trustee (in such capacity) and in any event prior to releasing possession
thereof. Notwithstanding anything herein to the contrary, with respect to the
documents referred to in clause (18) of the definition of Mortgage File, the
Master Servicer may hold the original of such document in trust on behalf of the
Trustee in order to draw on such letter of credit and the applicable Mortgage
Loan Seller shall be deemed to have satisfied the delivery requirements of this
Section 2.01(b) by delivering the original of such document to the (x) Master
Servicer in the case of Mortgage Loans sold or originated by GMACCM or its
Affiliates or (y) Trustee, in the case of loans (other than Mortgage Loans
originated by GMACCM or its Affiliates) sold by GSMC, GACC or MSMC, who will
certify receipt of such document by the Closing Date and send a copy of the
applicable document to the other party, and the Trustee shall appoint the Master
Servicer as custodian with respect to any such letters of credit. The applicable
Mortgage Loan Seller shall pay any costs of assignment of such letter of credit
required in order for the Master Servicer to draw on such letter of credit. In
the event that the related transfer documents specified in clause (18) of the
definition of Mortgage File are missing because the related assignment documents
have not been completed, the applicable Mortgage Loan Seller shall take all
necessary steps to enable the Master Servicer to draw on the related letter of
credit including, if necessary, drawing on the letter of credit in its own name
pursuant to written instructions from the Master Servicer and immediately
remitting such funds (or causing such funds to be remitted) to the Master
Servicer.
Notwithstanding the above, in the event the Master Servicer determines to
make a draw under any letter of credit prior to the time it has been assigned
and/or transferred to the Trustee on behalf of the Trust Fund or the Master
Servicer, as applicable, then the related Mortgage Loan Seller agrees to
cooperate with the Master Servicer in making any presentation and draw
concerning such letter of credit, on behalf of the Trust Fund (and if necessary
the related Mortgage Loan Seller shall make such draw in its own name pursuant
to the written instructions of the Master Servicer and deliver the proceeds to
the Master Servicer on behalf of the Trust Fund).
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller shall, as to each Mortgage Loan, at its own expense,
promptly (and in any event within 60 days of the Closing Date) cause to be
submitted for recording or filing, as the case may be, in the appropriate public
office for real property records or UCC Financing Statements, as appropriate,
each assignment referred to in clauses (3) and (5) of the definition of
"Mortgage File" and each UCC-2 and UCC-3 referred to in clause (11)(B) of the
definition of "Mortgage File." Each such assignment shall reflect that it should
be returned by the public recording office or the Mortgage Loan Seller to the
Trustee or its designee following recording, and each such UCC-2 and UCC-3 shall
reflect that the file copy thereof should be returned to the Trustee or its
designee following filing. Promptly following receipt, the Trustee shall, at the
request of the Master Servicer, deliver a copy of any such document or
instrument to the Master Servicer. If any such document or instrument is lost or
returned to the Trustee unrecorded or unfiled, as the case may be, because of a
defect therein, the Trustee shall direct the Mortgage Loan Seller, pursuant to
the related Mortgage Loan Purchase Agreement promptly to prepare or cause to be
prepared a substitute therefor or cure such defect, as the case may be.
100
(d) All documents and records in the Depositor's or any Mortgage Loan
Seller's possession relating to the Mortgage Loans that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Master Servicer on or before the Closing Date and shall be held
by the Master Servicer (or a Sub-Servicer retained thereby) on behalf of the
Trustee in trust for the benefit of the Certificateholders and, with respect to
the Xxxxxxxx Fashion Center A/B Loan, the Certificateholders and the Xxxxxxxx
Fashion Center Companion Holders. If the Sub-Servicer shall hold any original
documents and records delivered to it pursuant to this subsection (d) then the
Sub-Servicer shall deliver copies thereof to the Master Servicer.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Master Servicer, on or
before the Closing Date, a fully executed original counterpart of each Mortgage
Loan Purchase Agreement and each Supplemental Agreement, as in full force and
effect, without amendment or modification, on the Closing Date.
(f) In addition to the Depositor's assignment pursuant to subsection
(a), the Depositor, concurrently with the execution and delivery hereof, hereby
assigns to the Trustee without recourse all the right, title and interest of the
Depositor, including any security interest therein for the benefit of the
Depositor, in, to and under the Countryside Village Apartments REMIC Residual
Interest and the Garden Lakes Shopping Center REMIC and the Trustee shall hold
such REMIC Residual Interest on behalf of the Certificateholder of the Class R-I
Certificate. Notwithstanding anything contained herein, such REMIC Residual
Interest shall not be an asset of, or an interest in, any of REMIC I, REMIC II
or REMIC III. Such REMIC Residual Interest shall be represented by the same
Certificate representing the REMIC I residual interest and any transfer of the
Class R-I Residual Certificate shall include, and references herein to the Class
R-I Certificate shall include, where appropriate, such REMIC residual interest.
(g) The Trustee, by the execution and delivery of this Agreement,
hereby agrees to be bound to the terms of the Oakbrook Center Intercreditor
Agreement and hereby certifies that it is a "Qualified Institutional Lender" as
defined therein.
SECTION 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
hereby certifies receipt by it or a Custodian on its behalf, subject to the
provisions of Section 2.01 and the further review provided for in this Section
2.02, and further subject to any exceptions noted on any exception report
prepared by the Trustee or such Custodian and attached hereto as Exhibit L-1, of
the documents specified in clauses (1), (2), (9), (13), (18) and (20) (other
than the related transfer documents) of the definition of "Mortgage File" with
respect to each Mortgage Loan, of a fully executed original counterpart of each
Mortgage Loan Purchase Agreement and each Supplemental Agreement and of all
other assets included in REMIC I and delivered to it, in good faith and without
notice of any adverse claim, and declares that it or a Custodian on its behalf
holds and will hold such documents and the other documents delivered or caused
to be delivered by the Mortgage Loan Sellers constituting the Mortgage Files,
and that it holds and will hold such other assets included in REMIC I, in trust
for the exclusive use and benefit of all present and future Certificateholders;
provided that the Trustee's certification with respect to the
000
Xxxxxxxx Xxxxxx Mortgage Loan shall only include documents specified in clause
(1) of the definition of Mortgage File. In connection with the foregoing, the
Trustee hereby certifies, subject to any exceptions noted on any exception
report prepared by the Trustee or the Custodian and attached hereto as Exhibit
L-1, as to each Mortgage Note, that it (A) appears regular on its face
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appears to have been executed
(where appropriate) and (C) purports to relate to such Mortgage Loan. To the
extent that documents in the Mortgage File for the Xxxxxxxx Fashion Center
Mortgage Loan relate to any Xxxxxxxx Fashion Center Companion Loan, the Trustee
shall also hold such documents in such Mortgage File in trust for the use and
benefit of the Xxxxxxxx Fashion Center Companion Holders.
(b) Within 60 days of the Closing Date, the Trustee or a Custodian on
its behalf shall review each of the Mortgage Loan documents delivered or caused
to be delivered by the Mortgage Loan Sellers constituting the Mortgage Files;
and, promptly following such review, the Trustee shall certify in writing in the
form attached hereto as Exhibit L-2 to each of the Depositor, the Master
Servicer, the Special Servicer, each Certificateholder in the Controlling Class,
each Mortgage Loan Seller and, upon request, any Certificateholder that, as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or any Mortgage Loan specifically identified in any exception
report annexed thereto as not being covered by such certification) (in
electronic format if requested), (i) all documents specified in clauses (1)
through (5), (9), (11), (12), (13), (18) and (20) (in the case of clause (11),
without regard to whether such UCC financing statements were in the possession
of the Mortgage Loan Seller (or its agent)) of the definition of "Mortgage File"
are in its possession or the related Mortgage Loan Seller has otherwise
satisfied the delivery requirements in accordance with Section 2.01(b) and (ii)
all documents delivered or caused to be delivered by the related Mortgage Loan
Seller constituting the related Mortgage File have been reviewed by it or by a
Custodian on its behalf and (A) appear regular on their face and relate to such
Mortgage Loan, (B) appear to have been executed (where appropriate) and (C)
purport to relate to such Mortgage Loan; provided that the Trustee's
certification with respect to the Oakbrook Center Mortgage Loan shall only
include documents specified in clause (1) of the definition of Mortgage File. If
the Trustee's certification pursuant to the preceding sentence includes an
exception report, or if such certification indicates that any recording or
filing required by Section 2.01(c) has not been completed with respect to a
Mortgage Loan, the Trustee or a Custodian on its behalf shall continuously
update such exception report to reflect receipt of any additional documents or
instruments or evidence of recording or filing of such additional documents or
instruments with respect to such Mortgage Loan, until the earliest of (i) the
date on which such exceptions are eliminated and any such recording or filing
has been completed, (ii) the date on which the affected Mortgage Loan has been
removed from the Trust Fund, and (iii) the date which is two years after the
Closing Date, and shall provide such updated exception report (beginning 150
days after the Closing Date and continuing every 90 days thereafter until the
date which is two years after the Closing Date) to each of the Depositor, the
Master Servicer, the Special Servicer, the Majority Certificateholder of the
Controlling Class and, upon request, any Certificateholder and, with respect to
the Xxxxxxxx Fashion Center A/B Loan, any Xxxxxxxx Fashion Center Companion
Holder. At any time after the date which is two years after the Closing Date,
the Depositor, the Master Servicer, the Special Servicer, any Certificateholder
and, with respect to the Xxxxxxxx Fashion Center A/B Loan, any Xxxxxxxx Fashion
Center Companion Holder may receive, upon request, an updated exception report
(which may be in electronic format).
102
(c) The Trustee or a Custodian on its behalf shall review each of the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall certify in
writing in the form attached hereto as Exhibit L-2 to each of the Depositor, the
Master Servicer, the Special Servicer, the Majority Certificateholder of the
Controlling Class and each Mortgage Loan Seller (and, with respect to the
Xxxxxxxx Fashion Center Mortgage Loan, to the Xxxxxxxx Fashion Center Companion
Holders) that, as to each Mortgage Loan listed on the Mortgage Loan Schedule
(other than any Mortgage Loan as to which a Liquidation Event has occurred) and
except as specifically identified in any exception report annexed to such
certification, (i) all documents specified in clauses (1) through (5), (9),
(11), (12), (13), (18) and (20) (in the case of clause (11), without regard to
whether such UCC financing statements were in the possession of the Mortgage
Loan Seller (or its agent)) of the definition of "Mortgage File" are in its
possession or the related Mortgage Loan Seller has otherwise satisfied the
delivery requirements in accordance with Section 2.01(b), (ii) it or a Custodian
on its behalf has received either a recorded original of each of the assignments
specified in clause (3) and, insofar as an unrecorded original thereof had been
delivered or caused to be delivered by the related Mortgage Loan Seller, clause
(5) of the definition of "Mortgage File" or a copy of such recorded original
certified by the applicable public recording office or, if such public recording
office does not provide a certified original, the Mortgage Loan Seller to be
true and complete and (iii) all Mortgage Loan documents received by it or any
Custodian have been reviewed by it or by such Custodian on its behalf and (A)
appear regular on their face and relate to such Mortgage Loan, (B) appear to
have been executed (where appropriate) and (C) purport to relate to such
Mortgage Loan; provided that the Trustee's certification with respect to the
Oakbrook Center Mortgage Loan shall only include documents specified in clause
(1) of the definition of Mortgage File.
(d) It is acknowledged that neither the Trustee nor any Custodian is
under any duty or obligation (i) to determine whether any of the documents
specified in clauses (6), (7), (8), (10), (14), (15), (16), (17) and (19) of the
definition of "Mortgage File" exist or are required to be delivered by the
Depositor, any Mortgage Loan Seller or any other Person or (ii) to inspect,
review or examine any of the documents, instruments, certificates or other
papers relating to the Mortgage Loans delivered to it to determine that the same
are genuine, enforceable, in recordable form or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
Further, with respect to the documents described in clause (11) of the
definition of "Mortgage File", to the extent the Trustee has actual knowledge or
is notified of any fixture or real property UCC Financing Statements, the
Trustee shall file an assignment to the Trust Fund with respect to such UCC
Financing Statements in the appropriate jurisdiction under the UCC at the
expense of the related Mortgage Loan Seller. The UCC Financing Statements will
be delivered on the new national filing forms, in recordable form and will be
filed in the relevant central office of such state, as referred to herein or on
the face of such documents.
(e) If, in the process of reviewing the Mortgage Files or at any time
thereafter, the Trustee or any Custodian finds (or, if at any time, any other
party hereto finds) any document or documents constituting a part of a Mortgage
File to have not been properly executed or, subject to Section 2.01(b), to have
not been delivered, to contain information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule, or to be defective on its face (each, a "Defect" in the related
Mortgage File) the Trustee (or such other party) shall promptly so notify each
of the other parties hereto, the related
103
Mortgage Loan Seller, and with respect to the Xxxxxxxx Fashion Center Mortgage
Loan, the Xxxxxxxx Fashion Center Companion Holders. If and when notified of any
error in the Mortgage Loan Schedule, the Depositor shall promptly correct such
error and distribute a new, corrected Mortgage Loan Schedule to each of the
other parties hereto, and upon receipt by the Trustee of such a corrected
Mortgage Loan Schedule so identified, such new, corrected Mortgage Loan Schedule
shall be deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes.
(f) The Master Servicer may establish one or more Special Reserve
Accounts, each of which shall be an Eligible Account, and the Master Servicer or
its designee shall deposit any amount permitted to be deposited, pursuant to
Section 2.03(a), in a Special Reserve Account within two Business Days of
receipt. The related Mortgage Loan Seller may direct the Master Servicer to
invest or cause the investment of the funds deposited in the Special Reserve
Account in one or more Permitted Investments that bear interest or are sold at a
discount and that mature, unless payable on demand, no later than the Business
Day prior to the next Delinquency Advance Date. The Master Servicer shall act
upon the written instructions of the Mortgage Loan Seller with respect to the
investment of the funds in the Special Reserve Account in such Permitted
Investments; provided, that in the absence of appropriate and timely written
instructions from the related Mortgage Loan Seller, the Master Servicer shall
not invest or direct the investment of funds in such Special Reserve Account.
All income and gain realized from the investment of funds deposited in such
Special Reserve Account shall be for the benefit of the related Mortgage Loan
Seller (which shall be taxable with respect thereto) and shall be withdrawn by
the Master Servicer or its designee and remitted to the related Mortgage Loan
Seller on each Delinquency Advance Date (net of any losses incurred), and the
related Mortgage Loan Seller shall remit to the Master Servicer from the related
Mortgage Loan Seller's own funds for deposit into such Special Reserve Account
the amount of any Net Investment Loss (net of Net Investment Earnings) in
respect of such Permitted Investments immediately upon realization of such Net
Investment Losses and receipt of written notice thereof from the Master
Servicer.
SECTION 2.03 Mortgage Loan Sellers' Repurchase or Substitution of Mortgage
Loans for Defects in Mortgage Files and Breaches of Representations and
Warranties.
(a) If the Trustee discovers or receives notice of a Defect in any
Mortgage File or a breach of any representation or warranty set forth in or made
pursuant to Section 4(a) of each Mortgage Loan Purchase Agreement or Section
2(a) of the Supplemental Agreement (a "Breach"), which Defect or Breach, as the
case may be, materially and adversely affects the value of any Mortgage Loan or
any Mortgaged Property or the interests of the Certificateholders therein, or if
the Trustee discovers or receives notice of any event that would give rise to
the repurchase of a Mortgage Loan pursuant to Section 6(b) of any Mortgage Loan
Purchase Agreement or Section 4(b) of any Supplemental Agreement, the Trustee
shall give prompt written notice of such Defect, Breach or event, as the case
may be, to the Depositor, the Master Servicer, the Special Servicer, the
Majority Certificateholder of the Controlling Class, the Rating Agencies and the
related Mortgage Loan Seller (and GMACCM, in the case of such a Defect, Breach
or event under any Supplemental Agreement) and, with respect to the Xxxxxxxx
Fashion Center Mortgage Loan, the Xxxxxxxx Fashion Center Companion Holders and
shall request that the related Mortgage Loan Seller (or GMACCM, in the case of
such a Defect, Breach or event
104
under the Supplemental Agreement), within the time period provided for in the
related Mortgage Loan Purchase Agreement or the related Supplemental Agreement,
as applicable, cure such Defect, Breach or event, as the case may be, in all
material respects or repurchase the affected Mortgage Loan at the applicable
Purchase Price in conformity with the related Mortgage Loan Purchase Agreement
or the related Supplemental Agreement, as applicable; provided, however, that in
lieu of effecting any such repurchase, a Mortgage Loan Seller (or GMACCM, in the
case of such a Defect, Breach or event under the Supplemental Agreement) will be
permitted to deliver a Qualifying Substitute Mortgage Loan until the second
anniversary of the Closing Date and to pay a cash amount equal to the applicable
Substitution Shortfall Amount, subject to the terms and conditions of the
related Mortgage Loan Purchase Agreement or the Supplemental Agreement, as
applicable, and this Agreement; provided, further, that if such Defect relates
to clause (18) of the definition of "Mortgage File," the related Mortgage Loan
Seller may deposit with the Master Servicer an amount, to be held in a Special
Reserve Account, equal to the amount of the undelivered letter of credit (in the
alternative, the related Mortgage Loan Seller may deliver to the Trustee, with a
copy to the Master Servicer, a letter of credit for the benefit of the
Certificateholders on behalf of the Trustee and upon the same terms and
conditions as the undelivered letter of credit) which the Master Servicer on
behalf of the Trustee may use (or draw upon, as the case may be) under the same
circumstances and conditions as the Master Servicer would have been entitled to
draw on the undelivered letter of credit. Any such letter of credit or funds
shall be held pursuant to the terms of the related Mortgage Loan Purchase
Agreement by the Master Servicer until the earlier of (i) the date on which the
Master Servicer certifies to the Trustee and the Majority Certificateholder of
the Controlling Class that such Defect has been cured, at which time such letter
of credit or funds shall be returned to the related Mortgage Loan Seller and
(ii) the date on which the Mortgage Loan is repurchased or otherwise liquidated.
Any letter of credit or funds deposited pursuant to the preceding provisions
shall be treated as an "outside reserve fund" for purposes of the REMIC
Provisions, and the related Mortgage Loan Seller shall be treated as the
beneficial owner thereof.
Notwithstanding the foregoing provisions of this Section 2.03(a), if any
Defect or Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" under Section 860G(a)(3) of the Code, such Defect or Breach shall be
cured or the related Mortgage Loan shall be repurchased or replaced with a
Qualifying Substitute Mortgage Loan within 60 days of discovery.
Notwithstanding the foregoing, if (x) there exists a Breach of any
representation or warranty on the part of a Mortgage Loan Seller as set forth
in, or made pursuant to, clause 39 of Exhibit C to the related Mortgage Loan
Purchase Agreement or clause 39 of Exhibit B to the related Supplemental
Agreement, as applicable, relating to fees and expenses payable by the Mortgagor
associated with the exercise of a defeasance option, the release of any
Mortgaged Property and the assumption of any Mortgage Loan and (y) the related
Mortgage Loan documents specifically prohibit the Master Servicer or Special
Servicer from requiring the related Mortgagor to pay such fees and expenses,
then, upon notice by the Master Servicer or Special Servicer, the related
Mortgage Loan Seller shall transfer to the Certificate Account, within 90 days
of such Mortgage Loan Seller's receipt of such notice, the amount of any such
fees and expenses borne by the Trust Fund that are the basis of such Breach.
Upon its making such deposit, the related Mortgage Loan Seller shall be deemed
to have cured such Breach in all respects. Provided such payment is made, this
paragraph describes the sole remedy available to
105
the Certificateholders and the Trustee on their behalf regarding any such
Breach, regardless of whether it constitutes a Material Breach, and the related
Mortgage Loan Seller shall not be obligated to repurchase or otherwise cure such
Breach.
In the case of any Breach, Defect or event with respect to a
Cross-Collateralized Mortgage Loan that requires repurchase of such Mortgage
Loan, the Cross-Collateralized Mortgage Loan must be repurchased in its
entirety. Notwithstanding the foregoing, the applicable Mortgage Loan Seller
will not be required to repurchase all of the related Cross-Collateralized
Mortgage Loans if, (i) after giving effect to the repurchase only of the
Mortgage Loans materially and adversely affected by such Breach or Defect, all
three of (A) the Debt Service Coverage Ratio for the four preceding calendar
quarters for all of the Mortgaged Properties then remaining subject to the
related Mortgage is not less than 0.10x below the Debt Service Coverage Ratio
set forth in the Prospectus with respect to such Cross-Collateralized Mortgage
Loan and the related Cross-Collateralized Mortgage Loans, (B) the Loan-to-Value
Ratio for all of the Mortgaged Properties then remaining subject to the related
Mortgage is not greater than 10% more than the Loan-to-Value Ratio set forth in
the Prospectus with respect to such Cross-Collateralized Mortgage Loan and the
related Cross-Collateralized Mortgage Loans, in each case determined by the
Master Servicer or Special Servicer, as applicable and (C) the Master Servicer
obtains a Opinion of Counsel (at such Mortgage Loan Seller's expense) to the
effect that the contemplated action will not, with respect to the REMIC I, REMIC
II or REMIC III, cause an Adverse REMIC Event to occur; and (ii) the
cross-collateralization provisions of the applicable Cross-Collateralized
Mortgage Loans have been released under the terms of the applicable
Cross-Collateralized Mortgage Loans as to the Mortgage Loan(s) affected by such
Breach or Defect, and such Mortgage Loan(s) to be repurchased from the Trust
Fund is no longer cross-collateralized with the Cross-Collateralized Mortgage
Loans. If the Master Servicer or Special Servicer, as applicable, determines
that an Appraisal is required for purposes of determining the foregoing, the
Appraisal will be at the related Mortgage Loan Seller's expense, if the scope
and cost of the Appraisal is approved by the related Mortgage Loan Seller (such
approval not to be unreasonably withheld).
Unless the applicable delivery requirements are otherwise deemed to have
been satisfied pursuant to Section 2.01(b) (including by virtue of the delivery
of alternative documents as specified in Section 2.01(b)), any of the following
Defects shall be conclusively presumed materially and adversely to affect the
interests of Certificateholders in, and the value of, a Mortgage Loan: (a) the
absence from the Mortgage File of the original signed Mortgage Note, unless the
Mortgage File contains a signed lost note affidavit that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage that appears to be regular on its face, unless there is included in the
Mortgage File a certified copy of the Mortgage and a certificate stating that
the original signed Mortgage and any intervening assignments required to create
a complete chain of assignment to the Trustee were sent for recordation; or (c)
the absence from the Mortgage File of the item called for by clause (9) of the
definition of "Mortgage File." If any of the foregoing Defects (each, a
"Material Document Defect") is discovered by the Trustee, the Trustee will take
the steps described elsewhere in this section.
As to any Qualifying Substitute Mortgage Loan or Loans, the Trustee shall
direct the related Mortgage Loan Seller (or GMACCM, in the case of such a
Defect, Breach or event under the related Supplemental Agreement) to deliver to
the Trustee for such Qualifying Substitute
106
Mortgage Loan or Loans (with a copy to the Master Servicer), the related
Mortgage File(s) with the related Mortgage Note(s) endorsed as required by
clause (1) of the definition of "Mortgage File." Monthly Payments due with
respect to Qualifying Substitute Mortgage Loans in the month of substitution
shall not be part of the Trust Fund and will be retained by Master Servicer and
remitted by the Master Servicer to the related Mortgage Loan Seller (or GMACCM,
in the case of such a Defect, Breach or event under the Supplemental Agreement)
on the next succeeding Distribution Date. For the month of substitution,
distributions to Certificateholders will include the Monthly Payment due on the
related Deleted Mortgage Loan for such month and thereafter the related Mortgage
Loan Seller (or GMACCM, in the case of such a Defect, Breach or event under the
Supplemental Agreement) shall be entitled to retain all amounts received in
respect of such Deleted Mortgage Loan.
In any month in which the related Mortgage Loan Seller (or GMACCM under the
related Supplemental Agreement) substitutes one or more Qualifying Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the applicable Substitution Shortfall Amount. The Trustee shall direct
the related Mortgage Loan Seller (or GMACCM, as applicable) to deposit cash
equal to such amount into the Certificate Account concurrently with the delivery
of the Mortgage File(s) for the Qualifying Substitute Mortgage Loan(s), without
any reimbursement thereof. The Trustee shall also direct the related Mortgage
Loan Seller (or GMACCM, as applicable) to give written notice to the Trustee and
the Master Servicer of such deposit, accompanied by an Officer's Certificate as
to the calculation of the applicable Substitution Shortfall Amount. The Trustee
shall direct the related Mortgage Loan Seller (or GMACCM, as applicable) to
amend the Mortgage Loan Schedule to reflect the removal of each Deleted Mortgage
Loan and, if applicable, the substitution of the Qualifying Substitute Mortgage
Loan(s); and, upon such amendment, the Trustee shall deliver or cause the
delivery of such amended Mortgage Loan Schedule to the other parties hereto.
Upon any such substitution, the Qualifying Substitute Mortgage Loan(s) shall be
subject to the terms of this Agreement in all respects.
(b) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 2.03, the Trustee, the Master Servicer and the
Special Servicer shall each tender promptly to the related Mortgage Loan Seller
(or GMACCM, as applicable), upon delivery to each of the Trustee, the Master
Servicer and the Special Servicer of a trust receipt executed by the related
Mortgage Loan Seller (or GMACCM, as applicable), all portions of the Mortgage
File and other documents pertaining to such Mortgage Loan possessed by it, and
each document that constitutes a part of the related Mortgage File that was
endorsed or assigned to the Trustee shall be endorsed or assigned, as the case
may be, to the related Mortgage Loan Seller (or GMACCM, as applicable) in the
same manner as provided in Section 2 of each Mortgage Loan Purchase Agreement.
Additionally, in connection with any repurchase of or substitution for a
Mortgage Loan pursuant to this Section 2.03, the Master Servicer shall release
or cause to be released to the related Mortgage Loan Seller (or GMACCM, as
applicable) any Reserve Funds or Escrow Payments with respect to the related
Mortgage Loan.
Thereafter, the Trustee, the Master Servicer and the Special Servicer shall
have no further responsibility with regard to the related repurchased Mortgage
Loan(s) or Deleted Mortgage Loan(s), as applicable, and the related Mortgage
File(s) and Servicing File(s). The Master Servicer shall, and is hereby
authorized and empowered by the Trustee to, prepare, execute and
107
deliver in its own name, on behalf of the Certificateholders and the Trustee or
any of them, the endorsements and assignments contemplated by this Section 2.03,
and the Trustee shall execute any powers of attorney that are prepared and
delivered to the Trustee by the Master Servicer and are necessary to permit the
Master Servicer to do so. At the time a substitution is made, the related
Mortgage Loan Purchase Agreement or Supplemental Agreement, as applicable, will
provide that the Mortgage Loan Seller shall deliver the related Mortgage File to
the Trustee and certify that the substitute Mortgage Loan is a Qualified
Substitute Mortgage Loan.
(c) The provisions of this Article II provide the sole remedy available
to the Certificateholders, or the Trustee on behalf of the Certificateholders,
with respect to any Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to
Section 4(a) of any Mortgage Loan Purchase Agreement or Section 2(a) of any
Supplemental Agreement or any of the circumstances described in Section 6(b) of
any Mortgage Loan Purchase Agreement or in Section 4(b) of any Supplemental
Agreement.
(d) The Trustee, with the cooperation of the Special Servicer (in the
case of Specially Serviced Mortgage Loans), shall, for the benefit of the
Certificateholders, enforce the obligations of each Mortgage Loan Seller under
Section 6 of the related Mortgage Loan Purchase Agreement and the obligations of
GMACCM under Section 4 of the related Supplemental Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, shall be carried
out in such form, to such extent and at such time as the Trustee would require
were it, in its individual capacity, the owner of the affected Mortgage Loan(s).
The Trustee shall be reimbursed for the reasonable costs of such enforcement,
together with interest thereon at the Reimbursement Rate: first, from a specific
recovery of costs, expenses or attorneys' fees against the related Mortgage Loan
Seller (or GMACCM, in the case of enforcement under the Supplemental Agreement);
second, pursuant to Section 3.05(a)(x) out of the related Purchase Price, to the
extent that such expenses are a specific component thereof; and third, if at the
conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to Section
3.05(a)(xi) out of general collections on the Mortgage Loans on deposit in the
Certificate Account.
(e) Subject to the applicable time periods for cure, substitution,
repurchase or other remedy provided in this Agreement, if the applicable
Mortgage Loan Seller contests a repurchase claim for a Breach or Defect and the
Special Servicer determines that it is in the best interest of the
Certificateholders to proceed with a liquidation or workout (any modification
pursuant to which shall not constitute a defense against a repurchase) of a
Mortgage Loan that is in default while pursuing a repurchase claim; provided,
that any such action is consistent with the Servicing Standard, the Mortgage
Loan Seller will be liable for the difference between the aggregate of all
Liquidation Proceeds, Insurance Proceeds, net REO Revenues and all other amounts
previously received from the liquidation or workout of, or otherwise in respect
of, such Mortgage Loan and the Purchase Price to the extent the repurchase claim
is successful.
(f) The Master Servicer and Special Servicer shall, for the benefit of
the Certificateholders and the Xxxxxxxx Fashion Center Companion Holders,
enforce the obligations of GACC under Section 6 of the applicable Mortgage Loan
Purchase Agreement or any similar mortgage loan purchase agreement relating to
the Xxxxxxxx Fashion Center A-2 Note. The Xxxxxxxx Fashion Center A-2 Trustee,
the Master Servicer and the Special Servicer, as the case
108
may be, shall be reimbursed for the reasonable costs of such enforcement: first,
from a specific recovery of costs, expenses or attorneys' fees against GACC;
second, pursuant to Section 3.05(e)(vii) hereof, out of the related Purchase
Price, to the extent that such expenses are a specific component thereof; and
third, if at the conclusion of such enforcement action it is determined that the
amounts described in clauses first and second are insufficient, then, pursuant
to Section 3.05(e)(xiv), hereof, out of collections on the Xxxxxxxx Fashion
Center A/B Loan on deposit in the Xxxxxxxx Fashion Center Custodial Account.
SECTION 2.04 Issuance of Class R-I Certificates; Creation of REMIC I
Regular Interests.
Concurrently with the assignment to the Trustee of the assets included in
REMIC I, and in exchange therefor, at the direction of the Depositor, the REMIC
I Regular Interests have been issued hereunder and the Trustee has executed, and
caused the Certificate Registrar to authenticate and deliver, to or upon the
order of the Depositor, the Class R-I Certificates in authorized denominations.
The interests evidenced by the Class R-I Certificates, together with the REMIC I
Regular Interests, constitute the entire beneficial ownership of REMIC I. The
rights of the Class R-I Certificateholders and REMIC II to receive distributions
from the proceeds of REMIC I in respect of the Class R-I Certificates and the
REMIC I Regular Interests, respectively, and all ownership interests of the
Class R-I Certificateholders and REMIC II in and to such distributions, shall be
as set forth in this Agreement.
SECTION 2.05 Conveyance of REMIC I Regular Interests; Acceptance of REMIC
II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery hereof, does hereby assign without recourse all the right, title
and interest of the Depositor in and to the REMIC I Regular Interests to the
Trustee for the benefit of the Class R-II Certificateholders and REMIC III as
holder of the REMIC II Regular Interests. The Trustee acknowledges the
assignment to it of the REMIC I Regular Interests and declares that it holds and
will hold the same in trust for the exclusive use and benefit of all present and
future Class R-II Certificateholders and REMIC III as the holder of the REMIC II
Regular Interests.
SECTION 2.06 Issuance of Class R-II Certificates; Creation of REMIC II
Regular Interest.
Concurrently with the assignment to the Trustee of the REMIC I Regular
Interests, and in exchange therefor, at the direction of the Depositor, the
REMIC II Regular Interests have been issued hereunder and the Trustee has
executed, and caused the Certificate Registrar to authenticate and deliver, to
or upon the order of the Depositor, the Class R-II Certificates in authorized
denominations. The interests evidenced by the Class R-II Certificates, together
with the REMIC II Regular Interests, constitute the entire beneficial ownership
of REMIC II. The rights of the Class R-II Certificateholders and REMIC III to
receive distributions from the proceeds of REMIC II in respect of the Class R-II
Certificates and the REMIC II Regular Interests, respectively, and all ownership
interests of the Class R-II Certificateholders and REMIC III in and to such
distributions, shall be as set forth in this Agreement.
109
SECTION 2.07 Conveyance of REMIC II Regular Interests; Acceptance of REMIC
III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery hereof, does hereby assign without recourse all the right, title
and interest of the Depositor in and to the REMIC II Regular Interests to the
Trustee for the benefit of the REMIC III Certificateholders. The Trustee
acknowledges the assignment to it of the REMIC II Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future REMIC III Certificateholders.
SECTION 2.08 Issuance of REMIC III Certificates.
Concurrently with the assignment to the Trustee of the REMIC II Regular
Interests, and in exchange therefor, at the direction of the Depositor, the
Trustee has executed, and caused the Certificate Registrar to authenticate and
deliver, to or upon the order of the Depositor, the REMIC III Certificates in
authorized denominations evidencing the entire beneficial ownership of REMIC
III. The rights of the respective Classes of REMIC III Certificateholders to
receive distributions from the proceeds of REMIC III in respect of their REMIC
III Certificates, and all ownership interests of the respective Classes of REMIC
III Certificateholders in and to such distributions, shall be as set forth in
this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01 Servicing and Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service
and administer the Mortgage Loans (including the Xxxxxxxx Fashion Center A/B
Loan) that it is obligated to service and administer pursuant to this Agreement
on behalf of the Trustee and in the best interests of and for the benefit of the
Certificateholders and, with respect to the Xxxxxxxx Fashion Center A/B Loan, on
behalf of the Certificateholders and the Xxxxxxxx Fashion Center Companion
Holders (as a collective whole but taking into account the subordinate nature of
the Xxxxxxxx Fashion Center B Note) (as determined by the Master Servicer or the
Special Servicer, as the case may be, in its good faith and reasonable
judgment), in accordance with applicable law, the terms of this Agreement and
the terms of the respective Mortgage Loans and the Xxxxxxxx Fashion Center A/B
Loan and, to the extent consistent with the foregoing, further as follows: (i)
with the same care, skill and diligence as is normal and usual in its general
mortgage servicing and REO property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to mortgage
loans and REO properties that are comparable to those for which it is
responsible hereunder; (ii) with a view to the timely collection of all
scheduled payments of principal and interest under the Mortgage Loans (including
the Xxxxxxxx Fashion Center A/B Loan) or, if a Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan) comes into and continues in default and if, in
the good faith and reasonable judgment of the Special Servicer, no satisfactory
arrangements can be made for the collection of the delinquent payments, the
maximization of the recovery on such Mortgage
110
Loan to the Certificateholders (as a collective whole) and, with respect to the
Xxxxxxxx Fashion Center A/B Loan, the maximization of the recovery on the
Xxxxxxxx Fashion Center A/B Loan to the Certificateholders and the Xxxxxxxx
Fashion Center Companion Holders (as a collective whole but taking into account
the subordinate nature of the Xxxxxxxx Fashion Center B Note), on a present
value basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders or the Xxxxxxxx Fashion Center Companion
Holders, as applicable, to be performed at the related Net Mortgage Rate); and
(iii) without regard to (A) any relationship that the Master Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof may have with the
related Mortgagor, (B) the ownership of any Certificate or any Xxxxxxxx Fashion
Center Companion Loan Security by the Master Servicer or the Special Servicer,
as the case may be, or by any Affiliate thereof, (C) the Master Servicer's
obligation to make Advances, (D) the Special Servicer's obligation to direct the
Master Servicer to make Servicing Advances, (E) the right of the Master Servicer
(or any Affiliate thereof) or the Special Servicer (or any Affiliate thereof),
as the case may be, to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction and (F) the obligation of GMACCM to repurchase Mortgage Loans
pursuant to Section 4(b) of the related Supplemental Agreement (the conditions
set forth in the immediately foregoing clauses (i), (ii) and (iii), the
"Servicing Standard"). Without limiting the generality of the foregoing, each of
the Master Servicer and the Special Servicer, in its own name, in connection
with its servicing and administrative duties hereunder is hereby authorized and
empowered by the Trustee, to exercise efforts consistent with the foregoing
standard and to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them, any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; subject to Section
3.21, any and all modifications, waivers, amendments or consents to or with
respect to any documents contained in the related Mortgage File; and any and all
instruments of satisfaction or cancellation, or of full release or discharge,
and all other comparable instruments, with respect to the Mortgage Loans and the
Mortgaged Properties. Each of the Master Servicer and the Special Servicer is
also authorized to approve a request by a Mortgagor under a Mortgage Loan that
it is obligated to service and administer pursuant to this Agreement, for an
easement, consent to alteration or demolition, and for other similar matters;
provided, that the Master Servicer or the Special Servicer, as the case may be,
determines, exercising its good faith business judgment and in accordance with
the Servicing Standard, that such approval will not affect the security for, or
the timely and full collectability of, the related Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan). Subject to Section 3.10, the Trustee shall
furnish, or cause to be furnished, to the Master Servicer and the Special
Servicer any powers of attorney and other documents necessary or appropriate to
enable the Master Servicer or the Special Servicer, as the case may be, to carry
out its servicing and administrative duties hereunder; provided, however, that
the Trustee shall not be held liable, and shall be indemnified by the Master
Servicer or the Special Servicer, as applicable, for any negligence with respect
to, or willful misuse of, any such power of attorney by the Master Servicer or
the Special Servicer, as the case may be; provided, further, that neither the
Master Servicer nor the Special Servicer, without the written consent of the
Trustee, shall initiate any action in the name of the Trustee, without
indicating its representative capacity or cause the Trustee to be registered to
do business in any state.
111
(b) Subject to Section 3.01(a) and Section 3.24(f) (taking account of
Section 3.24(g)), the Master Servicer and the Special Servicer each shall have
full power and authority, acting alone or, subject to Section 3.23, through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
(c) The relationship of the Master Servicer and the Special Servicer to
the Trustee and, unless the same Person acts in multiple capacities, to each
other under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
Unless the same Person acts in both capacities, the Master Servicer shall have
no responsibility for the performance by the Special Servicer of its duties
under this Agreement, and the Special Servicer shall have no responsibility for
the performance of the Master Servicer under this Agreement.
(d) Subject to Section 3.01(a), each of the Master Servicer and Special
Servicer shall service and administer each Mortgage Loan that is a
Cross-Collateralized Mortgage Loan as a single Mortgage Loan in each case as and
when it deems such treatment necessary and appropriate.
(e) The parties hereto acknowledge that the Xxxxxxxx Fashion Center A/B
Loan is subject to the terms and conditions of the Xxxxxxxx Fashion Center A/B
Intercreditor Agreement. With respect to the Xxxxxxxx Fashion Center A/B Loan,
the Trustee, the Master Servicer and the Special Servicer recognize the
respective rights and obligations of the Trust and the Xxxxxxxx Fashion Center
Companion Holders under the Xxxxxxxx Fashion Center A/B Intercreditor Agreement,
including with respect to the allocation of collections on or in respect of the
Xxxxxxxx Fashion Center A/B Loan in accordance with Section 3 and Section 4 of
the Xxxxxxxx Fashion Center A/B Intercreditor Agreement. The Master Servicer
shall comply with the applicable provisions of the Xxxxxxxx Fashion Center A/B
Intercreditor Agreement, and if the Xxxxxxxx Fashion Center A/B Loan is then
being specially serviced, the Special Servicer shall comply with the applicable
provisions of the Xxxxxxxx Fashion Center A/B Intercreditor Agreement.
(f) Notwithstanding the foregoing provisions of this Section 3.01, the
Oakbrook Center Mortgage Loan shall be serviced and administered by the
2003-TOP9 Master Servicer and the 2003-TOP9 Special Servicer pursuant to the
2003-TOP9 Pooling and Servicing Agreement and the Oakbrook Center Intercreditor
Agreement, except as otherwise specifically provided in this Agreement. If the
Oakbrook Center Companion Loan that is an asset under the trust created by the
2003-TOP9 Pooling and Servicing Agreement is removed from the mortgage loan pool
created under the 2003-TOP9 Pooling and Servicing Agreement, or if the 2003-TOP9
Pooling and Servicing Agreement is otherwise terminated, the servicing of the
Oakbrook Center Mortgage Loan shall be transferred, pursuant to the Oakbrook
Center Intercreditor Agreement, and shall be serviced and administered by a
successor servicing agreement, which shall have similar provisions to the
2003-TOP9 Pooling and Servicing Agreement as set forth in the Oakbrook Center
Intercreditor Agreement.
112
SECTION 3.02 Collection of Mortgage Loan and Xxxxxxxx Fashion Center
Companion Loan Payments.
The Master Servicer (or the Special Servicer with respect to the Specially
Serviced Mortgage Loans) shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans and Xxxxxxxx
Fashion Center Companion Loans (as the case may be) serviced hereunder, and
shall, to the extent such procedures shall be consistent with this Agreement and
the terms and conditions of the Mortgage Loans and Xxxxxxxx Fashion Center
Companion Loans, follow such collection procedures as are consistent with the
Servicing Standard; provided, however, that nothing herein contained shall be
construed as an express or implied guarantee by the Master Servicer or the
Special Servicer of the collectability of the Mortgage Loans and Xxxxxxxx
Fashion Center Companion Loans. Consistent with the foregoing, the Master
Servicer may in its discretion waive any Penalty Charge in connection with any
delinquent payment on a Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan
serviced hereunder (other than a Specially Serviced Mortgage Loan) and the
Special Servicer may in its discretion waive any Penalty Charge in connection
with any delinquent payment on a Specially Serviced Mortgage Loan.
SECTION 3.03 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts and Reserve Accounts.
(a) Each of the Master Servicer (or the Special Servicer with respect
to the Specially Serviced Mortgage Loans) shall establish and maintain one or
more accounts (the "Servicing Accounts"), into which all Escrow Payments with
respect to the Mortgage Loans serviced hereunder shall be deposited and
retained. Servicing Accounts shall be Eligible Accounts. Withdrawals of amounts
so collected in respect of any Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan (and interest earned thereon) from a Servicing Account may be
made only to: (i) effect payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and comparable items in respect of the
related Mortgaged Property; (ii) reimburse the Fiscal Agent, the Trustee and the
Master Servicer, in that order, as applicable, for any unreimbursed Servicing
Advances made thereby to cover any of the items described in the immediately
preceding clause (i); (iii) refund to the related Mortgagor any sums as may be
determined to be overages; (iv) pay interest, if required and as described
below, to the related Mortgagor on balances in the Servicing Account (or, if and
to the extent not payable to the related Mortgagor, to pay such interest to the
Master Servicer or Special Servicer, as applicable); (v) disburse Insurance
Proceeds if required to be applied to the repair or restoration of the related
Mortgaged Property; or (vi) clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. As part of its
servicing duties, the Master Servicer and the Special Servicer shall pay or
cause to be paid to the Mortgagors interest on funds in Servicing Accounts
maintained thereby, to the extent required by law or the terms of the related
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan. The Servicing Accounts
shall not be considered part of the segregated pool of assets constituting REMIC
I, REMIC II, REMIC III or the Grantor Trust.
(b) Each of the Master Servicer (with respect to Mortgage Loans and
Xxxxxxxx Fashion Center Companion Loans serviced hereunder other than Specially
Serviced Mortgage Loans) and the Special Servicer (with respect to the Specially
Serviced Mortgage
113
Loans) shall (i) maintain accurate records with respect to each related
Mortgaged Property reflecting the status of real estate taxes, assessments and
other similar items that are or may become a lien thereon and the status of
insurance premiums and any ground rents payable in respect thereof, and (ii) use
reasonable efforts to obtain, from time to time, all bills for the payment of
such items (including renewal premiums) for Mortgage Loans and Xxxxxxxx Fashion
Center Companion Loans which require the related Mortgagor to escrow for the
payment of such items, and shall effect payment thereof prior to the applicable
penalty or termination date, employing for such purpose Escrow Payments as
allowed under the terms of the related Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan. To the extent that a Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan does not require a Mortgagor to escrow for the payment of real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items, the Master Servicer (or the Special Servicer with respect to the
Specially Serviced Mortgaged Loans) shall use reasonable efforts consistent with
the Servicing Standard to cause the related Mortgagor to comply with the
requirements of the related Mortgage for payments in respect of such items at
the time they first become due.
(c) In accordance with the Servicing Standard, the Master Servicer (at
the direction of the Special Servicer in the case of Specially Serviced Mortgage
Loans) shall advance with respect to each Mortgaged Property relating to
Mortgage Loans (including the Xxxxxxxx Fashion Center A/B Loan) serviced
hereunder all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items that are
or may become a lien thereon, (ii) ground rents (if applicable), and (iii)
premiums on Insurance Policies, in each instance if and to the extent Escrow
Payments collected from the related Mortgagor are insufficient to pay such item
when due and the related Mortgagor has failed to pay such item on a timely
basis; provided, that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance. All such Servicing Advances shall be
reimbursable in the first instance from related collections from the Mortgagors,
and further as provided in Section 3.05. No costs incurred by the Master
Servicer or the Special Servicer in effecting the payment of real estate taxes,
assessments, ground rents (if applicable) and other similar items on or in
respect of the Mortgaged Properties shall, for purposes hereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to the unpaid principal balances of the related Mortgage Loans or Xxxxxxxx
Fashion Center Companion Loans, notwithstanding that the terms of such Mortgage
Loans or Xxxxxxxx Fashion Center Companion Loans so permit.
(d) The Master Servicer (or the Special Servicer with respect to
Specially Serviced Mortgage Loans) shall, establish and maintain, as applicable,
one or more accounts (the "Reserve Accounts"), into which all Reserve Funds, if
any, shall be deposited and retained. Withdrawals of amounts so deposited may be
made to pay for, or to reimburse the related Mortgagor in connection with, the
related repairs, environmental remediation, replacements and/or capital
improvements at the related Mortgaged Property if such repairs, environmental
remediation, replacements and/or capital improvements have been completed, and
such withdrawals are made, in accordance with the Servicing Standard and the
terms of the related Mortgage Note, Mortgage and any agreement with the related
Mortgagor governing such Reserve Funds. Subject to the terms of the related
Mortgage Note and Mortgage, all Reserve Accounts shall be Eligible Accounts. As
part of its servicing duties, the Master Servicer and the Special Servicer shall
pay or cause to be paid to the Mortgagors interest on funds in the Reserve
Accounts maintained thereby, to the extent required by applicable law or the
terms of the related
114
Mortgage Loan. The Reserve Accounts shall not be considered part of the
segregated pool of assets comprising REMIC I, REMIC II, REMIC III or the Grantor
Trust.
SECTION 3.04 Certificate Account, Distribution Account, Interest Reserve
Account and Xxxxxxxx Fashion Center Custodial Account.
(a) The Master Servicer shall establish and maintain a Certificate
Account that shall be held in the name of the Master Servicer on behalf of the
Certificateholders. The Master Servicer shall deposit or cause to be deposited
into the Certificate Account on a daily basis, except as otherwise specifically
provided herein, the following payments and collections received or made by or
on behalf of it subsequent to the Cut-off Date (other than in respect of
principal and interest on the Mortgage Loans due and payable on or before the
Cut-off Date), and payments (other than Principal Prepayments) received by it on
or prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans (other than the Xxxxxxxx Fashion Mortgage
Loan);
(ii) all payments on account of interest (including, without
limitation, Default Interest and Excess Interest) on the Mortgage Loans (other
than the Xxxxxxxx Fashion Mortgage Loan), late payment charges and Prepayment
Premiums;
(iii) any amounts received from the Special Servicer which are
required to be transferred from the REO Account (other than any REO Account
related to the Xxxxxxxx Fashion Mortgage Loan) pursuant to Section 3.16(c) and
amounts of interest and investment income earned in respect of amounts relating
to the Trust Fund held in any Lock-Box Account or Cash Collateral Account, if
any, and only to the extent not required to be paid to the applicable Mortgagor
under the terms of the related Mortgage Loan documents or applicable law;
(iv) all Insurance Proceeds and Liquidation Proceeds received in
respect of any Mortgage Loan (other than the Xxxxxxxx Fashion Mortgage Loan) or
any REO Property (other than REO Property related to the Xxxxxxxx Fashion
Mortgage Loan) (other than Excess Liquidation Proceeds and Liquidation Proceeds
that are received in connection with the Master Servicer's or the Depositor's
purchase of all the Mortgage Loans and any REO Properties in the Trust Fund and
that are to be deposited in the Distribution Account pursuant to Section 9.01)
and any Borrower Recoveries;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds relating to the Trust Fund held in the
Certificate Account;
(vi) that portion of each Delinquency Advance that represents
(without duplication) the Servicing Fee; and
(vii) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy.
115
The foregoing requirements for deposit in the Certificate Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, actual payments from Mortgagors in the nature of Escrow
Payments, Reserve Funds, charges for beneficiary statements or demands,
assumption fees, amounts collected for mortgagor checks returned for
insufficient funds, ancillary fees and any other amounts that the Master
Servicer and the Special Servicer are entitled to as additional servicing
compensation pursuant to Section 3.11 need not be deposited by the Master
Servicer in the Certificate Account. If the Master Servicer shall deposit in the
Certificate Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Certificate Account, any provision herein
to the contrary notwithstanding. The Master Servicer shall promptly deliver to
the Special Servicer, as additional servicing compensation in accordance with
Section 3.11(d), all assumption fees, modification fees, ancillary fees and
other transaction fees due to and received by the Master Servicer with respect
to Specially Serviced Mortgage Loans. The Certificate Account shall be
maintained as a segregated account, separate and apart from trust funds created
for mortgage pass-through certificates of other series serviced and the other
accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i), (ii) and (iv)
above with respect to any Mortgage Loan which is not an REO Loan, the Special
Servicer shall promptly, but in no event later than two Business Days after
receipt, remit such amounts to the Master Servicer for deposit into the
Certificate Account in accordance with the second preceding paragraph, unless
the Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property shall be deposited by the Special Servicer into the
REO Account and remitted to the Master Servicer for deposit into the Certificate
Account pursuant to Section 3.16(c). With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
such check to the order of the Master Servicer and shall deliver promptly, but
in no event later than two Business Days after receipt, any such check to the
Master Servicer by overnight courier, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason.
Funds in the Certificate Account may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall give notice to the Trustee, the Special Servicer and the
Depositor of the location of the Certificate Account as of the Closing Date and
of the new location of the Certificate Account prior to any change thereof.
(b) The Trustee shall establish and maintain the Distribution Account
in trust for the benefit of the Certificateholders. The Distribution Account
shall be maintained as a segregated account, separate and apart from trust funds
for mortgage pass-through certificates of other series administered by the
Trustee and other accounts of the Trustee.
The Master Servicer shall deliver to the Trustee each month on or before
the Master Servicer Remittance Date therein, for deposit in the Distribution
Account, that portion of the Available Distribution Amount (calculated without
regard to clauses (b)(iii) or (b)(iv) of the definition thereof) for the related
Distribution Date then on deposit in the Certificate Account and the Trustee Fee
collected with respect to each Mortgage Loan.
116
In addition, the Master Servicer shall, as and when required hereunder,
deliver to the Trustee for deposit in the Distribution Account:
(i) any Delinquency Advances required to be made by the Master
Servicer in accordance with Section 4.03 (in each case, net of the portion
thereof that represents Servicing Fees and/or Special Servicing Fees, which is
to be deposited in the Certificate Account);
(ii) any Compensating Interest Payments required to be made by
the Master Servicer pursuant to Section 3.20;
(iii) any Liquidation Proceeds paid by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor in
connection with the purchase of all of the Mortgage Loans and any REO Properties
in the Trust Fund pursuant to Section 9.01 (exclusive of that portion thereof
required to be deposited in the Certificate Account pursuant to Section 9.01);
(iv) all amounts received from the 2003-TOP9 Master Servicer, the
2003-TOP9 Special Servicer or the 2003-TOP9 Trustee pursuant to the 2003-TOP9
Pooling and Servicing Agreement or the Oakbrook Center Intercreditor Agreement
on account of the Oakbrook Center Mortgage Loan; and
(v) any other amounts required to be so delivered for deposit in
the Distribution Account pursuant to any provision of this Agreement.
(c) The Trustee shall, upon receipt, deposit in the Distribution
Account any and all amounts received by the Trustee that are required by the
terms of this Agreement to be deposited therein. If, as of 3:00 p.m. (New York
City time) on any Master Servicer Remittance Date or on such other date as any
amount is required to be delivered for deposit in the Distribution Account, the
Master Servicer shall not have delivered to the Trustee for deposit in the
Distribution Account the relevant portion of the Available Distribution Amount,
or any of the other amounts required to be deposited therein, then the Trustee
shall provide notice of such failure to a Servicing Officer of the Master
Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such
alternative number provided by the Master Servicer to the Trustee in writing)
and by telephone at telephone no. (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) as soon as possible,
but in any event before 5:00 p.m. (New York City time) on such day. To the
extent the Master Servicer has not delivered to the Trustee for deposit in the
Distribution Account such amounts as are required to be delivered on the Master
Servicer Remittance Date, the Master Servicer shall pay interest thereon to the
Trustee at an interest rate equal to the Reimbursement Rate then in effect for
the period from and including the Master Servicer Remittance Date to and
excluding the date such amounts are deposited.
Funds in the Distribution Account may be invested by the Trustee in
Permitted Investments and the Trustee shall be required to deposit an amount
equal to the Net Investment Loss, if any, in such account, all as provided in
accordance with the provisions of Section 3.06. The Trustee shall give notice to
the Master Servicer, the Special Servicer and the Depositor of
117
the location of the Distribution Account as of the Closing Date and of the new
location of the Distribution Account prior to any change thereof.
(d) The Trustee shall establish (upon an event occurring that generates
Excess Liquidation Proceeds) and maintain the Excess Liquidation Proceeds
Reserve Account in trust for the benefit of the Certificateholders. The Excess
Liquidation Proceeds Reserve Account shall be maintained as a segregated
account, separate and apart from trust funds for mortgage pass-through
certificates of other series administered by the Trustee and other accounts of
the Trustee. Funds in the Excess Liquidation Proceeds Reserve Account may be
invested by the Trustee in Permitted Investments in accordance with the
provisions of Section 3.06 and the Trustee shall be required to deposit an
amount equal to the Net Investment Loss, if any, in such account, all as
provided in accordance with the provisions of Section 3.06.
Upon the disposition of any REO Property in accordance with Section 3.19,
the Special Servicer will calculate the Excess Liquidation Proceeds, if any,
realized in connection with such sale and deposit such amount in the Excess
Liquidation Proceeds Reserve Account.
(e) The Trustee shall establish and maintain the Interest Reserve
Account in trust for the benefit of the Certificateholders. The Interest Reserve
Account shall be maintained as a segregated account, separate and apart from
trust funds for mortgage pass-through certificates of other series administered
by the Trustee and other accounts of the Trustee. Funds in the Interest Reserve
Account may be invested in Permitted Investments in accordance with the
provisions of Section 3.06 and the Trustee shall be required to deposit an
amount equal to the Net Investment Loss, if any, in such account, all as
provided in accordance with the provisions of Section 3.06.
On each Master Servicer Remittance Date occurring in (i) January of each
calendar year that is not a leap year and (ii) February of each calendar year,
the Trustee shall calculate the Withheld Amount with respect to each Interest
Reserve Loan. On each such Master Servicer Remittance Date, the Trustee shall
withdraw from the Distribution Account and deposit in the Interest Reserve
Account an amount equal to the aggregate of the Withheld Amounts calculated in
accordance with the previous sentence. If the Trustee shall deposit in the
Interest Reserve Account any amount not required to be deposited therein, it may
at any time withdraw such amount from the Interest Reserve Account, any
provision herein to the contrary notwithstanding. On or prior to the Master
Servicer Remittance Date in March of each calendar year, the Trustee shall
transfer to the Distribution Account the aggregate of all Withheld Amounts on
deposit in the Interest Reserve Account.
(f) The Master Servicer shall establish and maintain, or cause to be
established and maintained, one or more Xxxxxxxx Fashion Center Custodial
Accounts in which the Master Servicer shall deposit or cause to be deposited
within one Business Day following receipt of available funds, except as
otherwise specifically provided herein, the following payments and collections
received or made by or on behalf of it on the Xxxxxxxx Fashion Center A/B Loan
subsequent to the Cut-off Date (other than in respect of principal and interest
on the Xxxxxxxx Fashion Center A/B Loan due and payable on or before the Cut-off
Date, which payments shall be held as provided in the Xxxxxxxx Fashion Center
A/B Intercreditor
118
Agreement), or payments (other than Principal Prepayments) received by it on or
prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Xxxxxxxx Fashion Center A/B Loan;
(ii) all payments on account of interest (including, without
limitation, Default Interest) on the Xxxxxxxx Fashion Center A/B Loan (net of
the related Servicing Fees), late payments charges and Prepayment Premiums;
(iii) any amounts received from the Special Servicer which are
required to be transferred from the REO Account pursuant to Section 3.16(c) and
amounts of interest and investment income earned in respect of amounts relating
to the Trust Fund held in any Lock-Box Account or Cash Collateral Account, if
any, and only to the extent not required to be paid to the applicable Mortgagor
under the terms of the related Xxxxxxxx Fashion Center A/B Loan documents or
applicable law;
(iv) all Insurance Proceeds and Liquidation Proceeds received in
respect of the Xxxxxxxx Fashion Center A/B Loan or related REO Property (other
than Liquidation Proceeds that are received in connection with the purchase by
the Master Servicer or the Special Servicer of all the Mortgage Loans and any
REO Property in the Trust Fund and that are to be deposited in the Distribution
Account pursuant to Section 9.01);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the such Xxxxxxxx Fashion Center
Custodial Account;
(vi) any Delinquency Advance required to be made by the Master
Servicer with respect to the Xxxxxxxx Fashion Center Mortgage Loan in accordance
with Section 4.03; and
(vii) any Xxxxxxxx Fashion Center B Note Holder Cure Advance made
pursuant to Section 3.29(c)(ii).
The foregoing requirements for deposit into any Xxxxxxxx Fashion Center
Custodial Account shall be exclusive; it being understood and agreed, that
without limiting the generality of the foregoing, actual payments from the
related Mortgagor in the nature of Escrow Payments, charges for beneficiary
statements or demands, assumption fees, modification fees, extension fees or
amounts collected for Mortgagor and checks returned for insufficient funds need
not be deposited by the Master Servicer into any Xxxxxxxx Fashion Center
Custodial Account. If the Master Servicer shall deposit in a Xxxxxxxx Fashion
Center Custodial Account any amount not required to be deposited therein, it may
at any time withdraw such amount from such Xxxxxxxx Fashion Center Custodial
Account, any provision herein to the contrary notwithstanding. All assumption,
extension and modification fees actually received from the related Mortgagor on
a Specially Serviced Mortgage Loan shall be promptly delivered to the Special
Servicer as additional servicing compensation, but only to the extent the
payment of such fees are in accordance with Section 3.11 and any other terms
hereof. The Xxxxxxxx Fashion Center Custodial Account shall be maintained as a
segregated account, separate and apart from any trust
119
fund created for mortgage-backed securities of other series and the other
accounts of the Master Servicer; provided, however, that each Xxxxxxxx Fashion
Center Custodial Account may be a sub-account of the Certificate Account.
Upon receipt of any of the foregoing amounts described in clauses (i), (ii)
and (iv) above with respect to the Xxxxxxxx Fashion Center A/B Loan for so long
as it is a Specially Serviced Mortgage Loan but is not an REO Loan, the Special
Servicer shall remit within one Business Day such amounts to the Master Servicer
for deposit into the Xxxxxxxx Fashion Center Custodial Account in accordance
with the second preceding paragraph. Any such amounts received by the Special
Servicer with respect to an REO Property (other than an REO Property that is not
related to the Xxxxxxxx Fashion Center A/B Loan) shall initially be deposited by
the Special Servicer into the related Xxxxxxxx Fashion Center A/B Loan REO
Account and remitted to the Master Servicer for deposit into the Xxxxxxxx
Fashion Center Custodial Account pursuant to Section 3.04(f). With respect to
any such amounts paid by check to the order of the Special Servicer, the Special
Servicer shall endorse without recourse or warranty such check to the order of
the Master Servicer and shall promptly deliver any such check to the Master
Servicer by overnight courier.
Funds in a Xxxxxxxx Fashion Center Custodial Account may only be invested
in Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the Trustee, the Special Servicer, the
Depositor and each Xxxxxxxx Fashion Center Companion Holder of the location of
the Xxxxxxxx Fashion Center Custodial Account as of the Closing Date and of the
new location of a Xxxxxxxx Fashion Center Custodial Account prior to any change
thereof.
In making the foregoing deposits into the Xxxxxxxx Fashion Center Custodial
Account and the allocations of amounts received with respect to the Xxxxxxxx
Fashion Center A/B Loan among the Xxxxxxxx Fashion Center Mortgage Loan and the
Xxxxxxxx Fashion Center Companion Loans, if the Special Servicer, in connection
with a workout of the Xxxxxxxx Fashion Center A/B Loan, has modified the terms
thereof (after complying with the requirements of Section 3.20) such that (i)
the related Mortgage Note Principal Balance is decreased, (ii) the Interest Rate
or scheduled amortization payments on the related Mortgage Note are reduced,
(iii) payments of interest or principal on such Mortgage Note are waived,
reduced or deferred or (iv) any other adjustment is made to the economic terms
of such Mortgage Loan, all deposits to the Xxxxxxxx Fashion Center Custodial
Account and allocations among the Xxxxxxxx Fashion Center Mortgage Loan and the
Xxxxxxxx Fashion Center Companion Loans pursuant to this Section 3.04(f) shall
be made as though such workout did not occur, with the payment terms of the
Xxxxxxxx Fashion Center Pari Passu Loans remaining the same as they are on the
date hereof, and the Xxxxxxxx Fashion Center B Note shall bear the effect of all
waivers, reductions or deferrals of amounts due on the Xxxxxxxx Fashion Center
A/B Loan and the related Mortgage Notes attributable to such workout (up to the
amount of the amounts distributable to the Xxxxxxxx Fashion Center B Note Holder
from amounts on deposit in the Xxxxxxxx Fashion Center B Custodial Account)
other than any waivers, reductions or deferrals of any Prepayment Premiums, exit
fees, extension fees, Default Interest or other charges or fees payable by the
Mortgagor resulting from such modification.
120
SECTION 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Liquidation
Proceeds Reserve Account and the Xxxxxxxx Fashion Center Custodial Account.
(a) The Master Servicer may, from time to time, make withdrawals from
the Certificate Account for any of the following purposes:
(i) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be remitted pursuant to the second paragraph of
Section 3.04(b) or that may be applied to make Delinquency Advances pursuant to
Section 4.03(a);
(ii) to pay itself unpaid Servicing Fees payable to itself earned
thereby in respect of each Mortgage Loan and each related REO Loan, the Master
Servicer's rights to payment pursuant to this clause (ii) being limited to
amounts received or advanced on or in respect of such Mortgage Loan or such REO
Loan that are allocable as a recovery or advance of interest thereon;
(iii) to pay to the Special Servicer, out of general collections
on the Mortgage Loans and any related REO Properties, earned and unpaid Special
Servicing Fees in respect of any Mortgage Loan that is a Specially Serviced
Mortgage Loan or REO Loan (other than the Oakbrook Center Mortgage Loan), but
with respect to the Xxxxxxxx Fashion Center A/B Loan, only to the extent that
amounts on deposit in the Xxxxxxxx Fashion Center Custodial Account are
insufficient therefor;
(iv) to pay to the Special Servicer earned and unpaid Workout
Fees and Liquidation Fees with respect to the Mortgage Loans (other than the
Oakbrook Center Mortgage Loan) to which it is entitled pursuant to, and from the
sources contemplated by, Section 3.11(c), but with respect to the Xxxxxxxx
Fashion Center A/B Loan, only to the extent that amounts on deposit in the
Xxxxxxxx Fashion Center Custodial Account are insufficient therefor;
(v) to reimburse the Fiscal Agent, the Trustee and itself, in
that order, as applicable, for unreimbursed Delinquency Advances made thereby,
the Master Servicer's, the Trustee's or the Fiscal Agent's respective rights to
be reimbursed pursuant to this clause (v) being limited to amounts received that
represent Late Collections of interest on and principal of the particular
Mortgage Loans and REO Loans with respect to which such Delinquency Advances
were made (in each case, net of related Workout Fees), but with respect to the
Xxxxxxxx Fashion Center A/B Loan, only to the extent that amounts on deposit in
the Xxxxxxxx Fashion Center Custodial Account are insufficient therefor;
(vi) to reimburse the Fiscal Agent, the Trustee and itself, in
that order, as applicable, for unreimbursed Servicing Advances made thereby, the
Master Servicer's, the Trustee's or the Fiscal Agent's respective rights to be
reimbursed pursuant to this clause (vi) with respect to any Mortgage Loan or REO
Property being limited to, as applicable, related payments, Liquidation
Proceeds, Insurance Proceeds and REO Revenues attributable to such Mortgage
Loan, but with respect to the Xxxxxxxx Fashion Center A/B Loan, only to the
extent that amounts on deposit in the Xxxxxxxx Fashion Center Custodial Account
are insufficient therefor;
121
(vii) to reimburse the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, as applicable, out of general collections on
the Mortgage Loans and related REO Properties, for Nonrecoverable Advances made
thereby, but with respect to the Xxxxxxxx Fashion Center A/B Loan, only to the
extent that amounts on deposit in the Xxxxxxxx Fashion Center Custodial Account
are insufficient therefor;
(viii) to pay the Fiscal Agent, the Trustee, itself or the
Special Servicer, in that order as the case may be, any related Advance Interest
accrued and payable on any unreimbursed Advance in accordance with Section
3.11(f) and 4.03(d), first out of Penalty Charges received on the Mortgage Loan
or REO Loan as to which such Advance was made and then, at or following such
time as it reimburses the Fiscal Agent, Trustee, itself and the Special
Servicer, in that order, as applicable, for such Advance pursuant to clause (v),
(vi) or (vii) above or Section 3.03, out of general collections on the Mortgage
Loans and related REO Properties, but with respect to the Xxxxxxxx Fashion
Center A/B Loan, only to the extent that amounts on deposit in the Xxxxxxxx
Fashion Center Custodial Account are insufficient therefor;
(ix) to reimburse itself (if it is not the affected Mortgage Loan
Seller) or the Trustee, as the case may be, for any unreimbursed expenses
reasonably incurred by such Person in respect of any Breach or Defect giving
rise to a repurchase obligation of a Mortgage Loan Seller under Section 6 of the
related Mortgage Loan Purchase Agreement (or Section 4 of the related
Supplemental Agreement), including, without limitation, any expenses arising out
of the enforcement of the repurchase obligation, together with interest thereon
at the Reimbursement Rate, each such Person's right to reimbursement pursuant to
this clause (ix) with respect to any Mortgage Loan being limited to that portion
of the Purchase Price paid for such Mortgage Loan that represents such expense
in accordance with clause (d) of the definition of Purchase Price;
(x) in accordance with Section 2.03(d), to reimburse the Trustee,
out of general collections on the Mortgage Loans and related REO Properties for
any unreimbursed expense reasonably incurred by the Trustee in connection with
the enforcement of a Mortgage Loan Seller's obligations under Section 6(a) of
the related Mortgage Loan Purchase Agreement (or Section 4 of the Supplemental
Agreement), together with interest thereon at the Reimbursement Rate, but only
to the extent that such expenses are not reimbursable pursuant to clause (ix)
above or otherwise;
(xi) to pay out of general collections on the Mortgage Loans and
related REO Properties, for costs and expenses incurred by the Trust Fund with
respect to the Mortgage Loans and related REO Properties pursuant to Section
3.09(c) and to pay Liquidation Expenses out of related Liquidation Proceeds
pursuant to Section 3.09;
(xii) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned in
respect of amounts relating to the Trust Fund held in the Certificate Account,
any Lock Box Account and Cash Collateral Account as provided in Section 3.06(b)
(but only to the extent of the Net Investment Earnings with respect to the
Certificate Account, any Lock Box Account and Cash Collateral Account for any
Collection Period), (B) Prepayment Interest Excesses and Balloon Payment
Interest Excess received on the Mortgage Loans and (C) Penalty Charges received
on Mortgage Loans that are
122
not Specially Serviced Mortgage Loans (but only to the extent not otherwise
allocable to cover Advance Interest in respect of the related Mortgage Loan);
(xiii) to pay to the Special Servicer, as additional servicing
compensation, all Penalty Charges received on any Specially Serviced Mortgage
Loan (but only to the extent not otherwise allocable to pay Advance Interest in
respect of the related Specially Serviced Mortgage Loan);
(xiv) to pay itself, the Depositor, or any of their respective
directors, officers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and REO Properties, any amounts payable to any
such Person pursuant to Section 6.03;
(xv) to pay, out of general collections on the Mortgage Loans and
REO Properties, for (A) the cost of the Opinions of Counsel contemplated by
Sections 3.09(b)(ii) and 3.16(a), (B) the cost of the advice of counsel
contemplated by Section 3.17(a), (C) the cost of any Opinion of Counsel
contemplated by Section 11.01(a) in connection with an amendment to this
Agreement, which amendment is in furtherance of the rights and interests of
Certificateholders, (D) the cost of obtaining the REO Extension contemplated by
Section 3.16(a), (E) the cost of recording this Agreement in accordance with
Section 11.02(a) and (F) the cost of a new Appraisal obtained pursuant to
Section 3.11(h) or Section 4.03(c);
(xvi) to pay itself, the Special Servicer, any Mortgage Loan
Seller, GMACCM or the Majority Certificateholder of the Controlling Class, as
the case may be, with respect to each Mortgage Loan, if any, previously
purchased by such Person pursuant to or as contemplated by this Agreement, all
amounts received on such Mortgage Loan subsequent to the date of purchase;
(xvii) to withdraw funds deposited into the Certificate Account
in error; and
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
For each Mortgage Loan, the Master Servicer shall keep and maintain
separate accounting records, on a loan-by-loan basis (and for each REO Loan, on
a property-by-property basis) when appropriate, for the purpose of justifying
any withdrawal from the Certificate Account.
The Master Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account.
123
The Master Servicer, in consultation with the Trustee, may in its sole
discretion and in such a manner as it determines is in the best interests of the
Certificateholders or, with respect to the Xxxxxxxx Fashion Center A/B Loan, the
best interests of the Certificateholders and the Xxxxxxxx Fashion Center
Companion Holders reimburse itself or request that it be reimbursed, as
applicable, for extraordinary unreimbursed Nonrecoverable Servicing Advances in
installments over time, not to exceed six months (any such extraordinary
unreimbursed Nonrecoverable Servicing Advances for which reimbursement is
deferred, "Deferred Advances"). The Master Servicer shall be entitled to Advance
Interest on any Deferred Advances either from the Certificate Account or, with
respect to the Xxxxxxxx Fashion Center A/B Loan, from the Xxxxxxxx Fashion
Center Custodial Account, or from any Person that has so requested that the
Master Servicer defer reimbursement for such extraordinary unreimbursed
Nonrecoverable Servicing Advances. Any determination to reimburse the Master
Servicer or request that the Master Servicer be reimbursed for Deferred Advances
shall be deemed to be in compliance with the Servicing Standard.
(b) The Trustee may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes (but not necessarily in
the following order of priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 and to deposit the Withheld Amounts
in the Interest Reserve Account pursuant to Section 3.04(d);
(ii) to pay itself interest and investment income earned in
respect of amounts relating to the Trust Fund held in the Distribution Account
as provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the Distribution Account for any Collection Period);
(iii) to pay itself unpaid Trustee Fees pursuant to Section
8.05(a);
(iv) to pay the Fiscal Agent, itself or any of their respective
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section 8.05(b);
(v) to pay for (A) the cost of the Opinion of Counsel
contemplated by Section 11.01(a) or (c) in connection with any amendment to this
Agreement requested by the Trustee, which amendment is in furtherance of the
rights and interests of Certificateholders, (B) the cost of the Opinion of
Counsel contemplated by Section 11.02(a) in connection with any recordation of
this Agreement and (C) to the extent payable out of the Trust Fund, the cost of
the Opinion of Counsel contemplated by Section 10.01(e) or Section 10.03(f);
(vi) to (A) pay any and all federal, state and local taxes
imposed on REMIC I, REMIC II or REMIC III or on the assets or transactions of
any such REMIC, together with all incidental costs and expenses, and any and all
reasonable expenses relating to tax audits, if and to the extent that either (1)
none of the Trustee, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(g) or (2) any such Person that may be so
liable has failed to make the required payment, and (B) reimburse the Trustee
for reasonable expenses
124
incurred by and reimbursable to it by the Trust Fund pursuant to Section
10.03(b) or Section 10.01(c);
(vii) to withdraw funds deposited into the Distribution Account
in error; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may, from time to time, make withdrawals from the
Interest Reserve Account to pay itself interest and investment income earned in
respect of amounts relating to the Trust Fund held in the Interest Reserve
Account (but only to the extent of Net Investment Earnings with respect to the
Interest Reserve Account for any Collection Period).
(d) The Trustee shall, on any Distribution Date, make withdrawals from
the Excess Liquidation Proceeds Reserve Account to the extent required to make
the distributions from the Excess Liquidation Proceeds Reserve Account required
by Section 4.01(c).
(e) The Master Servicer shall from time to time make withdrawals from
the Xxxxxxxx Fashion Center Custodial Account, for any of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to make remittances each month on or before the Master
Servicer Remittance Date therein, in an aggregate amount of immediately
available funds equal to the applicable Xxxxxxxx Fashion Center A/B Loan
Remittance Amount, to (A) the Xxxxxxxx Fashion Center Companion Paying Agent (on
behalf of the Xxxxxxxx Fashion Center A-2 Note Holder), (B) the Xxxxxxxx Fashion
Center B Note Holder (which remittance will be made, so long as the Chandler A/B
Loan is not a Defaulted Mortgage Loan or a Specially Serviced Mortgage Loan, one
Business Day after full payment is received from the related Mortgagor;
provided, that if the Xxxxxxxx A/B Loan is a Defaulted Mortgage Loan or a
Specially Serviced Mortgage Loan, then such remittance shall be on or before the
Master Servicer Remittance Date in such month), and (C) to the Certificate
Account for the benefit of the Trust, in each case in accordance with the
Xxxxxxxx Fashion Center A/B Intercreditor Agreement; provided, that Liquidation
Proceeds relating to the purchase of any Xxxxxxxx Fashion Center A-2 Note by the
Xxxxxxxx Fashion Center B Note Holder shall be remitted solely to the holders of
such Xxxxxxxx Fashion Center A-2 Note, and Liquidation Proceeds relating to the
purchase of the Xxxxxxxx Fashion Center Mortgage Loan by the Xxxxxxxx Fashion
Center B Note Holder shall be remitted solely to the Certificate Account;
(ii) (A) to pay itself unpaid Servicing Fees and the Special
Servicer unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in
respect of the Xxxxxxxx Fashion Center A/B Loan and related REO Loan, as
applicable, the Master Servicer's or Special Servicer's, as applicable, rights
to payment of Servicing Fees and Special Servicing Fees, Liquidation Fees and
Workout Fees pursuant to this clause (ii)(A) with respect to the Xxxxxxxx
Fashion Center A/B Loan or related REO Loan, as applicable, being limited to
amounts received on or in respect of the Xxxxxxxx Fashion Center A/B Loan
(whether in the form of payments, Liquidation Proceeds or Insurance Proceeds),
or such REO Loan (whether in the form of REO
125
Revenues, Liquidation Proceeds or Insurance Proceeds), that are allocable as
recovery of interest thereon and (B) each month to the Special Servicer any
unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in respect of
the Xxxxxxxx Fashion Center A/B Loan or REO Loan, as applicable, remaining
unpaid out of collections on the Xxxxxxxx Fashion Center A/B Loan and related
REO Property;
(iii) to reimburse itself, the Fiscal Agent and/or the Trustee
for unreimbursed Delinquency Advances with respect to the Xxxxxxxx Fashion
Center Mortgage Loan and to reimburse the Xxxxxxxx Fashion Center A-2 Master
Servicer and/or Xxxxxxxx Fashion Center A-2 Trustee for unreimbursed Delinquency
Advances with respect to the Xxxxxxxx Fashion Center A-2 Note, the Master
Servicer's, the Trustee's, the Fiscal Agent's, the Xxxxxxxx Fashion Center A-2
Master Servicer's or the Xxxxxxxx Fashion Center A-2 Trustee's right to
reimbursement pursuant to this clause (iii) being limited to amounts received in
such Xxxxxxxx Fashion Center Custodial Account which represent Late Collections
received in respect of the particular Xxxxxxxx Fashion Center Loan (as allocable
thereto pursuant to the related Mortgage Loan documents and the Xxxxxxxx Fashion
Center A/B Intercreditor Agreement) during the applicable period;
(iv) to reimburse itself, the Special Servicer, the Trustee or
the Fiscal Agent, as applicable (in reverse of such order with respect to the
Xxxxxxxx Fashion Center A/B Loan or REO Property), for unreimbursed Servicing
Advances with respect to the Xxxxxxxx Fashion Center A/B Loan or related REO
Property, the Master Servicer's, the Trustee's, the Fiscal Agent's or the
Special Servicer's respective rights to receive payment pursuant to this clause
(iv) being limited to, as applicable, related payments, Liquidation Proceeds,
Insurance Proceeds and REO Revenues with respect to the Xxxxxxxx Fashion Center
A/B Loan;
(v) (A) to reimburse itself and the Xxxxxxxx Fashion Center A-2
Master Servicer (pro rata), the Special Servicer, the Trustee and the Xxxxxxxx
Fashion Center A-2 Trustee(pro rata) or the Fiscal Agent, as applicable (in
reverse of such order with respect to the Xxxxxxxx Fashion Center A/B Loan or
related REO Property), out of collections on the Xxxxxxxx Fashion Center A/B
Loan and REO Property for Nonrecoverable Advances previously made or (B) to pay
itself or the Special Servicer out of collections on the Xxxxxxxx Fashion Center
A/B Loan and related REO Property, with respect to any Xxxxxxxx Fashion Center
Loan or REO Property any related earned Servicing Fee, Special Servicing Fee,
Liquidation Fee or Workout Fee, as applicable, that remained unpaid in
accordance with clause (ii) above following a Final Recovery Determination made
with respect to the Xxxxxxxx Fashion Center A/B Loan or related REO Property and
the deposit into such Xxxxxxxx Fashion Center Custodial Account of all amounts
received in connection therewith such party's rights to reimbursement pursuant
to this clause (v) with respect to any such Nonrecoverable Advance, Servicing
Fees, Special Servicing Fees, Liquidation Fees or Workout Fees, as applicable,
being limited (except to the extent set forth in Section 3.05(a)) to amounts on
deposit in the Xxxxxxxx Fashion Center Custodial Account that were received in
respect of the particular Xxxxxxxx Fashion Center Loan (as allocable thereto
pursuant to the Mortgage Loan documents and the Xxxxxxxx Fashion Center A/B
Intercreditor Agreement) as to which such Nonrecoverable Advance, Servicing
Fees, Special Servicing Fees, Liquidation Fees or Workout Fees, as applicable,
relates;
126
(vi) at such time as it reimburses itself and the Xxxxxxxx
Fashion Center A-2 Master Servicer (pro rata), the Special Servicer, the Trustee
and the Xxxxxxxx Fashion Center A-2 Trustee(pro rata) or the Fiscal Agent, as
applicable (in reverse of such order with respect to the Xxxxxxxx Fashion Center
A/B Loan or related REO Property), for (A) any unreimbursed Delinquency Advance
with respect to the Xxxxxxxx Fashion Center Mortgage Loan or the Xxxxxxxx
Fashion Center A-2 Note pursuant to clause (iii) above, to pay itself and the
Xxxxxxxx Fashion Center A-2 Master Servicer (pro rata), the Trustee and the
Xxxxxxxx Fashion Center A-2 Trustee (pro rata) or the Fiscal Agent, as
applicable, any interest accrued and payable thereon in accordance with Section
4.03(d) and Section 3.11(c), (B) any unreimbursed Servicing Advances pursuant to
clause (iv) above, to pay itself, the Special Servicer, the Trustee or the
Fiscal Agent, as the case may be, any interest accrued and payable thereon in
accordance with Section 3.03(e) and Section 3.11(c) or (C) any Nonrecoverable
Advances pursuant to clause (v) above, to pay itself, the Special Servicer and
the Xxxxxxxx Fashion Center A-2 Master Servicer (pro rata), the Trustee and the
Xxxxxxxx Fashion Center A-2 Trustee (pro rata) or the Fiscal Agent, as the case
may be, any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer or the Trustee,
as the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Document Defect with respect to the Xxxxxxxx
Fashion Center Mortgage Loan giving rise to a repurchase obligation of GACC
under Section 6 of the applicable Mortgage Loan Purchase Agreement, including,
without limitation, any expenses arising out of the enforcement of the
repurchase obligation, each such Person's right to reimbursement pursuant to
this clause (vii) with respect to the Xxxxxxxx Fashion Center A/B Loan being
limited to that portion of the Purchase Price paid for the related Mortgage Loan
that represents such expense in accordance with clause (iv) of the definition of
Purchase Price, and to reimburse the Master Servicer, the Special Servicer or
any the Xxxxxxxx Fashion Center A-2 Trustee for any similar unreimbursed
expenses incurred in respect of the Xxxxxxxx Fashion Center A-2 Note;
(viii) in accordance with Section 2.03(e), to reimburse itself,
the Special Servicer or the Trustee, as the case may be, out of collections on
the Xxxxxxxx Fashion Center A/B Loan and related REO Property for any
unreimbursed expense reasonably incurred by such Person in connection with the
enforcement of GACC obligations under Section 6 of the applicable Mortgage Loan
Purchase Agreement with respect to the Xxxxxxxx Fashion Center Mortgage Loan,
but only to the extent that such expenses are not reimbursable pursuant to
clause (vii) above or otherwise, and to reimburse the Master Servicer, the
Special Servicer or the Xxxxxxxx Fashion Center A-2 Trustee for any similar
unreimbursed expenses incurred under the Xxxxxxxx Fashion Center A-2 Trust
Agreement in respect of the Xxxxxxxx Fashion Center A-2 Note;
(ix) to pay itself all Prepayment Interest Excesses on the
related Mortgage Loan not required to be used pursuant to Section 3.05(a)(xii);
(x) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (1) interest and investment income earned in
respect of amounts relating to the Xxxxxxxx Fashion Center A/B Loan held in such
Xxxxxxxx Fashion Center Custodial Account as provided in Section 3.06(b) (but
only to the extent of the Net Investment Earnings with respect to such Xxxxxxxx
Fashion Center Custodial Account for any period from
127
any Distribution Date to the immediately succeeding Delinquency Advance Date)
and (2) Penalty Charges on the Xxxxxxxx Fashion Center A/B Loan (other than
Specially Serviced Mortgage Loans), but only to the extent collected from the
related Mortgagor and to the extent that all amounts then due and payable with
respect to the related Xxxxxxxx Fashion Center A/B Loan have been paid and are
not needed to pay interest on Advances in accordance with Section 3.11; and (B)
to pay the Special Servicer, as additional servicing compensation in accordance
with the second paragraph of Section 3.11, Penalty Charges on the Xxxxxxxx
Fashion Center A/B Loan during the period it is a Specially Serviced Loan (but
only to the extent collected from the related Mortgagor and to the extent that
all amounts then due and payable with respect to the Specially Serviced Loan
have been paid and are not needed to pay interest on Advances, all in accordance
with Section 3.11);
(xi) to recoup any amounts deposited in such Xxxxxxxx Fashion
Center Custodial Account in error;
(xii) to pay itself, the Special Servicer, the Depositor, the
Xxxxxxxx Fashion Center Companion Paying Agent or any of their respective
directors, officers, members, managers, employees and agents, as the case may
be, any amounts payable to any such Person pursuant to Section 6.03 or Section
8.17(d) to the extent that such amounts relate to the Xxxxxxxx Fashion Center
A/B Loan;
(xiii) to pay for (A) the cost of the Opinions of Counsel
contemplated by Section 3.16(a) to the extent payable out of the Trust Fund as
they relate to the Xxxxxxxx Fashion Center A/B Loan, (B) the cost of any Opinion
of Counsel contemplated by Section 11.01(a) or Section 11.01(c) in connection
with an amendment to this Agreement requested by the Trustee or the Master
Servicer, which amendment is in furtherance of the rights and interests of
Certificateholders and, if the Xxxxxxxx Fashion Center A/B Loan is involved, the
Xxxxxxxx Fashion Center Companion Holders, as a collective whole and (c) the
cost of obtaining the REO Extension contemplated by Section 3.16(a), to the
extent that such amounts relate to the Xxxxxxxx Fashion Center A/B Loan;
(xiv) to pay out of collections on the Xxxxxxxx Fashion Center
A/B Loan and related REO Property any and all federal, state and local taxes
imposed on the REMIC I, REMIC II, REMIC III, or any of their assets or
transactions, together with all incidental costs and expenses, in each case to
the extent that none of the Master Servicer, the Special Servicer or the Trustee
is liable therefor pursuant to Section 10.01(h) and to the extent that such
amounts relate to the Xxxxxxxx Fashion Center Mortgage Loan or to any Xxxxxxxx
Fashion Center Companion Loan that is included in a REMIC;
(xv) to reimburse the Trustee, the Fiscal Agent and the Xxxxxxxx
Fashion Center A-2 Trustee out of collections on the Xxxxxxxx Fashion Center A/B
Loan and REO Property for expenses incurred by and reimbursable to it by the
Trust Fund, and the trust fund relating to the Xxxxxxxx Fashion Center Companion
Loan Securities, respectively, to the extent that such amounts relate to the
applicable Xxxxxxxx Fashion Center Loan;
128
(xvi) to pay any Person with respect to the Xxxxxxxx Fashion
Center Mortgage Loan, if any, all amounts received thereon after the date of
purchase of such Xxxxxxxx Fashion Center Mortgage relating to the period after
the date of purchase;
(xvii) to remit to the Trustee for deposit in the Interest
Reserve Account the amounts with respect to the Xxxxxxxx Fashion Center Mortgage
Loan required to be deposited in the Interest Reserve Account pursuant to
Section 3.04(e);
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent or the Depositor, as the case may be, to the extent
that such amounts relate to the Xxxxxxxx Fashion Center Mortgage Loan, any
amount specifically required to be paid to such Person at the expense of the
Trust Fund under any provision of this Agreement or the Xxxxxxxx Fashion Center
A-2 Trust Agreement to which reference is not made in any other clause of this
Section 3.05(c), and to pay to the Xxxxxxxx Fashion Center A-2 Trustee or the
depositor under the Xxxxxxxx Fashion Center A-2 Trust Agreement to the extent
that such amounts relate to the Xxxxxxxx Fashion Center A-2 Note, any amount
specifically required to be paid to such Person under the Xxxxxxxx Fashion
Center A-2 Trust Agreement, it being acknowledged that this clause (xviii) shall
not be construed to modify any limitation or requirement otherwise set forth in
this Agreement as to the time at which any Person is entitled to payment or
reimbursement of any amount or as to the funds from which any such payment or
reimbursement is permitted to be made;
(xix) to reimburse the Xxxxxxxx Fashion Center B Note Holder for
any Xxxxxxxx Fashion Center B Note Holder Cure Advance made pursuant to Section
3.29(c)(ii); and
(xx) to clear and terminate such Xxxxxxxx Fashion Center
Custodial Account at the termination of this Agreement pursuant to Section 9.01.
Any permitted withdrawals under this Section 3.05(e) with respect to
reimbursement for advances or other amounts payable to the Xxxxxxxx Fashion
Center A-2 Trustee shall, if applicable, also be deemed to be a permitted
withdrawal for similar amounts owed to the fiscal agent of the Xxxxxxxx Fashion
Center A-2 Trustee, if any. All withdrawals with respect to the Xxxxxxxx Fashion
Center A/B Loan shall be made first from the Xxxxxxxx Fashion Center Custodial
Account and then, from the Certificate Account to the extent permitted by
Section 3.05(a).
The Master Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer), the Trustee, the Fiscal
Agent and to the Xxxxxxxx Fashion Center A-2 Trustee from the Xxxxxxxx Fashion
Center Custodial Account amounts permitted to be paid to it (or to such third
party contractors) therefrom promptly upon receipt of a certificate of a
Servicing Officer of the Special Servicer or a Responsible Officer of the
Trustee, the Fiscal Agent or Xxxxxxxx Fashion Center A-2 Trustee describing the
item and amount to which the Special Servicer (or any such third party
contractor) or the Xxxxxxxx Fashion Center A-2 Trustee is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for the Xxxxxxxx Fashion Center Mortgage Loan and
each of the Xxxxxxxx Fashion Center Companion Loans (and related REO Loan) on a
loan-by-loan basis for the
129
purpose of justifying any request for withdrawal from a Xxxxxxxx Fashion Center
Custodial Account.
In the event that the Master Servicer fails, as of 5:00 p.m. (New York City
time) on any Delinquency Advance Date, to remit to the Trustee (in respect of
the Xxxxxxxx Fashion Center Mortgage Loan) and the Xxxxxxxx Fashion Center
Companion Paying Agent any amounts required to be so remitted hereunder by such
date, the Master Servicer shall pay to the Trustee (in respect of the Xxxxxxxx
Fashion Center Mortgage Loan) and the Xxxxxxxx Fashion Center Companion Paying
Agent (in respect of the Xxxxxxxx Fashion Center A-2 Note), for the account of
the Trustee (in respect of the Xxxxxxxx Fashion Center Mortgage Loan) and the
Xxxxxxxx Fashion Center Companion Paying Agent (in respect of the Xxxxxxxx
Fashion Center A-2 Note), interest, calculated at the Prime Rate, on such
amount(s) not timely remitted, from the time such payment was required to be
made (without regard to any grace period) until such payment is received by the
Trustee and the Xxxxxxxx Fashion Center Companion Paying Agent.
(f) The Xxxxxxxx Fashion Center Companion Paying Agent shall establish
and maintain the Xxxxxxxx Fashion Center Companion Distribution Account for the
benefit of the Xxxxxxxx Fashion Center A-2 Note Holder. The Xxxxxxxx Fashion
Center Companion Distribution Account shall be maintained as an Eligible Account
(or as a sub-account of an Eligible Account). Funds in the Xxxxxxxx Fashion
Center Companion Distribution Account shall remain uninvested. The Xxxxxxxx
Fashion Center Companion Paying Agent shall give notice to the Master Servicer
of the location of the Xxxxxxxx Fashion Center Companion Distribution Account as
of the Closing Date and of the new location of the Xxxxxxxx Fashion Center
Companion Distribution Account prior to any change thereof.
The Master Servicer shall deliver to the Xxxxxxxx Fashion Center Companion
Paying Agent each month on or before the Master Servicer Remittance Date
therein, for deposit in the Xxxxxxxx Fashion Center Companion Distribution
Account, that portion of the Xxxxxxxx Fashion A/B Loan Remittance Amount
allocable to the Xxxxxxxx Fashion Center A-2 Note Holder then on deposit in the
Xxxxxxxx Fashion Center Custodial Account.
On each Distribution Date, the Xxxxxxxx Fashion Center Companion Paying
Agent shall, based upon information provided to the Xxxxxxxx Fashion Center
Companion Paying Agent by the Master Servicer, remit to the Xxxxxxxx Fashion
Center A-2 Note Holder on the applicable Distribution Date by wire transfer in
immediately available funds to the account of such Xxxxxxxx Fashion Center A-2
Note Holder or an agent therefore appearing on the Xxxxxxxx Fashion Center
Companion Holder Register on the related Record Date (or, if no such account so
appears or information relating thereto is not provided at least five Business
Days prior to the related Record Date, by check sent by first-class mail to the
address of such Xxxxxxxx Fashion Center Companion Holder or its agent appearing
on the Xxxxxxxx Fashion Center Companion Holder Register) the portion of the
Xxxxxxxx Fashion Center A/B Loan Remittance Amount allocable to such Xxxxxxxx
Fashion Center A-2 Note Holder.
The Xxxxxxxx Fashion Center Companion Paying Agent shall, upon receipt,
deposit in the Xxxxxxxx Fashion Center Companion Distribution Account any and
all amounts received by the Xxxxxxxx Fashion Center Companion Paying Agent that
are required by the terms of this Agreement to be deposited therein. If, as of
3:00 p.m. (New York City time) on any Master
130
Servicer Remittance Date or on such other date as any amount is required to be
delivered for deposit in the Xxxxxxxx Fashion Center Companion Distribution
Account, the Master Servicer shall not have delivered to the Xxxxxxxx Fashion
Center Companion Paying Agent for deposit in the Xxxxxxxx Fashion Center
Companion Distribution Account any of the amounts required to be deposited
therein, then the Xxxxxxxx Fashion Center Companion Paying Agent shall provide
notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative
number provided by the Master Servicer to the Xxxxxxxx Fashion Center Companion
Paying Agent in writing) and by telephone at telephone no. (000) 000-0000 (or
such alternative number provided by the Master Servicer to the Xxxxxxxx Fashion
Center Companion Paying Agent in writing) as soon as possible, but in any event
before 5:00 p.m. (New York City time) on such day.
SECTION 3.06 Investment of Funds in the Certificate Account, the
Distribution Account, the Excess Liquidation Proceeds Reserve Account, the
Interest Reserve Account, the REO Account and the Xxxxxxxx Fashion Center
Custodial Account.
(a) (i) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Xxxxxxxx Fashion Center Custodial
Account, any Lock-Box Account or any Cash Collateral Account to invest, (ii) the
Special Servicer may direct any depository institution maintaining the REO
Account to invest, or if it is a depository institution, may itself invest, and
(iii) the Trustee may direct the depository institution maintaining the
Distribution Account, the Excess Liquidation Proceeds Reserve Account or the
Interest Reserve Account to invest, or if it is such depository institution, may
itself invest, the funds held therein in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
(A) no later than the Business Day immediately preceding the next succeeding
date on which such funds are required to be withdrawn from such account pursuant
to this Agreement, if a Person other than the depository institution maintaining
such account is the obligor thereon, and (B) no later than the next succeeding
date on which such funds are required to be withdrawn from such account pursuant
to this Agreement, if the depository institution maintaining such account is the
obligor thereon. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Investment Account shall
be made in the name of the Trustee (in its capacity as such).
The Master Servicer (with respect to Permitted Investments of amounts in
the Certificate Account, the Xxxxxxxx Fashion Center Custodial Account, any
Lock-Box Account and any Cash Collateral Account) and the Special Servicer (with
respect to Permitted Investments of amounts in the REO Account) on behalf of the
Trustee, and the Trustee (with respect to Permitted Investments of amounts in
the Distribution Account, the Excess Liquidation Proceeds Reserve Account and
the Interest Reserve Account), shall (and Trustee hereby designates the Master
Servicer and the Special Servicer, as applicable, as the Person that shall): (i)
be the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security." For purposes
of this Section 3.06(a), the terms "entitlement holder," "security entitlement,"
"control," "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment by the Master Servicer or the Special
Servicer shall constitute "control" by a Person
131
designated by, and acting on behalf of the Trustee for purposes of Revised
Article 8 (1994 Revision) of the UCC.
In the event amounts on deposit in an Investment Account are at any time
invested in a Permitted Investment payable on demand, the Master Servicer (in
the case of the Certificate Account, the Xxxxxxxx Fashion Center Custodial
Account, any Lock-Box Account or any Cash Collateral Account), the Special
Servicer (in the case of the REO Account) and the Trustee (in the case of the
Distribution Account, the Excess Liquidation Proceeds Reserve Account and the
Interest Reserve Account) shall: (i) consistent with any notice required to be
given thereunder, demand that payment be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser of
(A) all amounts then payable thereunder and (B) the amount required to be
withdrawn on such date; and (ii) demand payment of all amounts due thereunder
promptly upon determination by the Master Servicer, the Special Servicer or the
Trustee, as the case may be, that such Permitted Investment would not constitute
a Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds
in the Certificate Account or the Xxxxxxxx Fashion Center Custodial Account, and
to the extent the Master Servicer directs the investment of funds in any
Lock-Box Account or any Cash Collateral Account, interest and investment income
realized on funds deposited in each such Investment Account, to the extent of
the Net Investment Earnings, if any, with respect to such account for each
Collection Period, shall be for the sole and exclusive benefit of the Master
Servicer and shall be subject to its withdrawal, or withdrawal at its direction,
in accordance with Section 3.05(a). Interest and investment income realized on
funds deposited in the Distribution Account, the Excess Liquidation Proceeds
Reserve Account and the Interest Reserve Account, to the extent of Net
Investment Earnings, if any, with respect to such account for each Collection
Period, shall be for the sole and exclusive benefit of the Trustee and shall be
subject to its withdrawal in accordance with Section 3.05(b) or (c), as the case
may be. Whether or not the Special Servicer directs the investment of funds in
the REO Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in the Certificate Account or the Xxxxxxxx
Fashion Center Custodial Account, and to the extent the Master Servicer has
discretion to direct the investment of funds in any Lock-Box Account or any Cash
Collateral Account for its sole and exclusive benefit, the Master Servicer shall
deposit therein, no later than the end of the Collection Period during which
such loss was incurred, without right of reimbursement, the amount of the Net
Investment Loss, if any, with respect to such account for such Collection
Period. If any loss shall be incurred in respect of any Permitted Investment on
deposit in the Distribution Account, the Excess Liquidation Proceeds Reserve
Account or the Interest Reserve Account, the Trustee shall immediately deposit
therein, without right of reimbursement, the amount of the Net Investment Loss,
if any, with respect to such account. If any loss shall be incurred in respect
of any Permitted Investment on deposit in the REO Account, the Special Servicer
shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the end of the Collection Period during which such
loss was incurred, the amount of the Net Investment Loss, if any, for such
Collection Period.
132
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated to
any Class shall take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
proceedings.
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.
(a) Each of the Master Servicer (in the case of Mortgage Loans
(including the Xxxxxxxx Fashion Center A/B Loan but excluding the Oakbrook
Center Mortgage Loan and Specially Serviced Mortgage Loans) and the Special
Servicer (solely in the case of Specially Serviced Mortgage Loans) shall use
reasonable efforts to cause each Mortgagor to maintain in respect of the related
Mortgaged Property all insurance coverage as is required under the related
Mortgage (to the extent such insurance coverage is available at commercially
reasonable terms as determined by the Master Servicer or Special Servicer, as
applicable); provided, that if any Mortgage permits the holder thereof to
dictate to the Mortgagor the insurance coverage to be maintained on such
Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate,
shall impose such insurance requirements as are consistent with the Servicing
Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer
(at the direction of the Special Servicer in the case of a Specially Serviced
Mortgage Loan or REO Loan) shall (to the extent available at commercially
reasonable terms as determined by the Master Servicer, which shall be entitled
to rely (at its own expense) on an opinion of counsel or insurance consultants
in making such determination) obtain such insurance (which may be through a
master or single interest policy) and the cost (including any deductible
relating to such insurance and any out of pocket cost incurred by the Master
Servicer in obtaining advice of counsel or insurance consultants) of such
insurance (or in the case of a master or single interest policy, the incremental
cost (including any deductible relating to such insurance) of such insurance
relating to the specific Mortgaged Property), shall be a Servicing Advance and
shall be recoverable by the Master Servicer pursuant to Section 3.05(a). If the
Master Servicer or Special Servicer, as the case may be, determines in
accordance with the preceding provisions of this paragraph that the applicable
insurance is not available at commercially reasonable terms, the Master Servicer
or the Special Servicer, as the case may be, shall notify the Majority
Certificateholder of the Controlling Class and the Rating Agencies of such
determination. If at any time a Mortgaged Property related to a Mortgage Loan
serviced hereunder is located in an area identified in the Flood Hazard Boundary
Map or Flood Insurance Rate Map issued by the Federal Emergency Management
Agency as having special flood hazards or it becomes located in such area by
virtue of remapping conducted by such agency (and flood insurance has been made
available), the Master Servicer (or in the case of a Specially Serviced Mortgage
Loan, the Special Servicer) shall, if and to the extent that the Mortgage Loan
(including the Xxxxxxxx Fashion Center A/B Loan) requires the Mortgagor or
permits the mortgagee to require the Mortgagor to do so, use reasonable efforts
to cause the related Mortgagor to maintain a flood insurance policy meeting the
requirements of the current guideline of the Federal Insurance Administration in
the maximum amount of insurance coverage available under the National Flood
Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National
Flood Insurance Reform Act of 1994, as amended, unless otherwise specified by
the related Mortgage Loan (including the
133
Xxxxxxxx Fashion Center A/B Loan). With respect to any Mortgage Loan (including
the Xxxxxxxx Fashion Center A/B Loan but excluding the Oakbrook Center Mortgage
Loan), if (i) the Mortgagor is required by the terms of the Mortgage Loan
(including the Xxxxxxxx Fashion Center A/B Loan) to maintain such insurance (or
becomes obligated by virtue of the related Mortgaged Property becoming located
in such area by virtue of such remapping) or (ii) the terms of the Mortgage Loan
permit the mortgagee to require the Mortgagor to obtain such insurance, the
Master Servicer (or in the case of a Specially Serviced Loan, the Special
Servicer), shall promptly notify the Mortgagor of its obligation to obtain such
insurance. If the Mortgagor fails to obtain such flood insurance within 120 days
of such notification, the Master Servicer (or in the case of a Specially
Serviced Mortgage Loan, the Special Servicer) shall obtain such insurance, the
cost of which shall be a Servicing Advance and shall be recoverable by the
Master Servicer pursuant to Section 3.05(a); provided, that the Master Servicer
or Special Servicer shall not be required to incur any such cost if such Advance
would constitute a Nonrecoverable Servicing Advance; provided, further, if the
Master Servicer or Special Servicer, as applicable, shall determine that the
payment of such amount is (i) necessary to preserve the related Mortgaged
Property and (ii) would be in the best interest of the Certificateholders (or
with respect to the Xxxxxxxx Fashion Center A/B Loan, the Certificateholders and
the Xxxxxxxx Fashion Center Companion Holders), then the Master Servicer shall
make such payment from amounts in the Certificate Account or, with respect to
the Xxxxxxxx Fashion Center A/B Loan, from the Xxxxxxxx Fashion Center Custodial
Account. Subject to Section 3.17(a), the Special Servicer shall also use
reasonable efforts to cause to be maintained for each REO Property (to the
extent available at commercially reasonable terms) no less insurance coverage
than was previously required of the Mortgagor under the related Mortgage or as
is consistent with the Servicing Standard. All such insurance policies shall
contain a "standard" mortgagee clause, with loss payable to the Master Servicer
(in the case of Mortgaged Properties) or the Special Servicer (in the case of
REO Properties) on behalf of the Trustee, and shall be issued by an insurer
authorized under applicable law to issue such insurance. Any amounts collected
by the Master Servicer or the Special Servicer under any such policies (other
than amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Mortgagor, in
each case in accordance with applicable law, the terms of the related Mortgage
Loan (including the Xxxxxxxx Fashion Center A/B Loan) documents and the
Servicing Standard) shall be deposited in the Certificate Account or, with
respect to the Xxxxxxxx Fashion Center A/B Loan, deposited in the Xxxxxxxx
Fashion Center Custodial Account, subject to withdrawal pursuant to Section
3.05(a) or Section 3.05(e), respectively, in the case of amounts received in
respect of a Mortgage Loan, or in the REO Account, subject to withdrawal
pursuant to Section 3.16(c), in the case of amounts received in respect of an
REO Property. Any cost incurred by the Master Servicer or the Special Servicer
in maintaining any such insurance shall not, for purposes hereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to the outstanding principal balance of the related Mortgage Loan
(including the Xxxxxxxx Fashion Center A/B Loan), notwithstanding that the terms
of such Mortgage Loan so permit, but shall be recoverable by the Master Servicer
as a Servicing Advance pursuant to Section 3.05(a)or 3.05(e), as applicable.
(b) (i) If the Master Servicer or the Special Servicer obtains and
maintains a blanket policy insuring against hazard losses on all of the
Mortgaged Properties and/or REO Properties for which it is responsible to cause
the maintenance of insurance hereunder, then, to the extent such policy provides
protection equivalent to the individual policies otherwise
134
required, the Master Servicer or the Special Servicer, as the case may be, shall
conclusively be deemed to have satisfied its obligation to cause hazard
insurance to be maintained on such Mortgaged Properties and/or REO Properties.
Such policy may contain a deductible clause (not in excess of a customary
amount), in which case the Master Servicer or the Special Servicer, as
appropriate, shall, if there shall not have been maintained on a Mortgaged
Property or an REO Property a hazard insurance policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
which would have been covered by such policy, promptly deposit into the
Certificate Account or, with respect to the Xxxxxxxx Fashion Center A/B Loan,
deposited in the Xxxxxxxx Fashion Center Custodial Account (or into the
Servicing Account if insurance proceeds are to be applied to the repair or
restoration of the applicable Mortgaged Property or disbursed to the related
Mortgagor) from its own funds the amount not otherwise payable under the blanket
policy because of such deductible clause to the extent that any such deductible
exceeds the deductible limitation that pertained to the related Mortgage Loan,
or, in the absence of any such deductible limitation, the deductible limitation
which is consistent with the Servicing Standard. The Master Servicer and the
Special Servicer each agrees to prepare and present, on behalf of itself, the
Trustee and the Certificateholders (and with respect to the Xxxxxxxx Fashion
Center A/B Loan, the Chandler Fashion Companion Holders), claims under any such
blanket policy maintained by it in a timely fashion in accordance with the terms
of such policy.
(ii) If the Master Servicer or the Special Servicer, as
applicable, causes any Mortgaged Property or REO Property to be covered by a
master force placed insurance policy, which provides protection equivalent to
the individual policies otherwise required, the Master Servicer or Special
Servicer shall conclusively be deemed to have satisfied its respective
obligations to cause hazard insurance to be maintained on such Mortgaged
Properties and/or REO Properties. Such policy may contain a deductible clause,
in which case the Master Servicer or the Special Servicer, as applicable, shall
in the event that (x) there shall not have been maintained on the related
Mortgaged Property or REO Property a policy otherwise complying with the
provisions of Section 3.07(a), and (y) there shall have been one or more losses
which would have been covered by such a policy had it been maintained,
immediately deposit into the Certificate Account or, with respect to the
Xxxxxxxx Fashion Center A/B Loan, deposit into the Xxxxxxxx Fashion Center
Custodial Account (or into the Servicing Account if insurance proceeds are to be
applied to the repair or restoration of the applicable Mortgaged Property or
disbursed to the related Mortgagor) from its own funds the amount not otherwise
payable under such policy because of such deductible to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard. The
Master Servicer and the Special Servicer each agrees to prepare and present, on
behalf of itself, the Trustee and the Certificateholders (and with respect to
the Xxxxxxxx Fashion Center A/B Loan, the Chandler Fashion Companion Holders),
claims under any such master force placed insurance policy maintained by it in a
timely fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall obtain
and maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
insurance policy covering its officers and employees and other persons acting on
behalf of it in connection with its activities under this Agreement and naming
the Trustee as an additional insured. The amount of coverage
135
shall be at least equal to the coverage that would be required by FNMA or FHLMC,
whichever is greater, with respect to the Master Servicer or Special Servicer,
as the case may be, if the Master Servicer or Special Servicer, as the case may
be, were servicing and administering the Mortgage Loans, Xxxxxxxx Fashion Center
Companion Loans and/or the REO Properties for which it is responsible hereunder
for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under
a policy or bond obtained by an Affiliate of such Person and providing the
coverage required by this Section 3.07(c) shall satisfy the requirements of this
Section 3.07(c).
(d) All insurance coverage required to be maintained by the Master
Servicer or Special Servicer, as applicable, under this Section 3.07 shall be
obtained from Qualified Insurers having a claims paying ability rating (or the
obligations of which are guaranteed or backed by a company having such claims
paying ability rating or insurance financial strength rating, as applicable) of
not less than (x) "A" by Standard & Poor's and (y) "A2" by Xxxxx'x; provided,
however, that the requirements of clauses (x) or (y) shall not be applicable
with respect to Standard & Poor's or Xxxxx'x, as applicable, if the related
Rating Agency shall have confirmed in writing that an insurance company with a
lower claims paying ability rating shall not result, in and of itself, in a
downgrade, qualification or withdrawal of the then current ratings by such
Rating Agency of any Class of Certificates.
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing; Defeasance.
(a) As to each Mortgage Loan and the Xxxxxxxx Fashion Center Companion
Loans (other than the Oakbrook Center Mortgage Loan) which contains a provision
in the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan shall (or may at the mortgagee's option) become due and payable
upon the sale or other transfer of an interest in the related Mortgaged
Property; or
(ii) provides that such Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan may not be assumed without the consent of the mortgagee in
connection with any such sale or other transfer,
then, subject to Section 3.28, the Special Servicer, on behalf of the Trustee as
the mortgagee of record, shall exercise (or, subject to Section 3.21(a)(iv),
waive its right to exercise) any right it may have with respect to such Mortgage
Loan (including the Xxxxxxxx Fashion Center A/B Loan) (x) to accelerate the
payments thereon, or (y) to withhold its consent to any such sale or other
transfer, in a manner consistent with the Servicing Standard. In the event that
the Special Servicer intends or is required by, in accordance with the preceding
sentence, the Mortgage Loan documents or applicable law to permit the transfer
of any Mortgaged Property, the Special Servicer, if consistent with the
Servicing Standard, may enter into an assumption and modification agreement with
the Person to whom the related Mortgaged Property has been or is intended to be
conveyed or may enter into a substitution of liability agreement, pursuant to
which the original Mortgagor and any original guarantors are released from
liability, and the transferee and any new guarantors are substituted therefor
and become liable under the Mortgage Note and any related guaranties and, in
connection therewith, may require from the related Mortgagor a
136
reasonable and customary fee for the additional services performed by it,
together with reimbursement for any related costs and expenses incurred by it
(but only to the extent that charging such fee and entering into such assumption
and modification agreement will not be a significant modification of the
Mortgage Loan for purposes of the REMIC Provisions). The Special Servicer shall
promptly notify the Trustee of any such agreement and forward the original
thereof to the Trustee for inclusion in the related Mortgage File. Subject to
Section 3.21(a), if the Special Servicer intends or is required to permit the
transfer of any Mortgaged Property and enter into an assumption agreement or a
substitution of liability agreement, as the case may be, in accordance with the
foregoing, the Special Servicer shall submit to (A) Xxxxx'x, in the case of any
Mortgage Loan that has an outstanding principal balance in excess of the lesser
of (1) $20,000,000 or (2) 5% of the then outstanding principal balance of the
Mortgage Pool and (B) Standard & Poor's, in the case of any Mortgage Loan or any
group of Cross-Collateralized Mortgage Loans that has, or any Mortgage Loan that
is part of a Related Borrower Group that has, an outstanding principal balance
in excess of 5% of the then outstanding principal balance of the Mortgage Pool,
a copy of such documentation and any information with respect to such action as
the Special Servicer deems appropriate or as such Rating Agency may reasonably
request, and shall obtain Rating Agency Confirmation from Xxxxx'x (in the case
of any Mortgage Loan described in clause (A) above) and/or, Standard & Poor's
(in the case of any Mortgage Loan described in clause (B) above) prior to
executing such assumption agreement or substitution of liability agreement.
(b) As to each Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan
(other than the Oakbrook Center Mortgage Loan) which contains a provision in the
nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan shall (or may at the mortgagee's option) become due and payable
upon the creation of any additional lien or other encumbrance on the related
Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged Property,
then, subject to Section 3.28, for so long as such Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan), the Special Servicer on behalf of the Trustee
as the mortgagee of record, shall exercise (or, subject to Section 3.21(a)(iv),
waive its right to exercise) any right it may have with respect to such Mortgage
Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to
the creation of any such additional lien or other encumbrance, in a manner
consistent with the Servicing Standard; provided, however, that the Special
Servicer shall not waive its right to exercise any such right when such right
arises as a result of the imposition of a lien against a Mortgaged Property
which lien secures additional indebtedness or a mechanic's or similar lien not
permitted under the related Mortgage Loan documents unless the Special Servicer
shall submit to (A) Xxxxx'x (in the case of any Mortgage Loan that has an
outstanding principal balance in excess of the lesser of (1) $20,000,000 or (2)
5% of the then outstanding principal balance of the Mortgage Pool and (B)
Standard & Poor's (in all cases) a copy of the documentation under which any
such lien would arise together with such other information with respect to such
proposed waiver as the Special Servicer deems appropriate or as such Rating
Agency may reasonably request, and shall obtain Rating Agency Confirmation from
Xxxxx'x (in
137
the case of any Mortgage Loan described in clause (A) above) and/or Standard &
Poor's (in all cases) prior to waiving any such right.
(c) Notwithstanding the foregoing, the Master Servicer shall not waive
any rights under a "due-on-sale" or "due-on-encumbrance" clause with respect to
any Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan) unless: (i)
the Master Servicer shall have notified the Special Servicer of such waiver;
(ii) the Master Servicer shall have submitted the Master Servicer's written
recommendation and analysis to the Special Servicer; (iii) the Master Servicer
shall have submitted to the Special Servicer the documents within the possession
of the Master Servicer that are reasonably requested by the Special Servicer;
(iv) the Special Servicer shall have approved such waiver, notified the Majority
Certificateholder of the Controlling Class of the request for the waiver and of
the Master Servicer's and its own approval and submitted to the Majority
Certificateholder of the Controlling Class each of the documents submitted to
the Special Servicer by the Master Servicer; and (v) the Majority
Certificateholder of the Controlling Class shall have informed the Special
Servicer that it has approved such waiver; provided, however, that the Special
Servicer shall advise the Majority Certificateholder of the Controlling Class of
its approval (if any) of such waiver promptly upon (but in no case to exceed ten
Business Days) its receipt of such notice, recommendations, analysis, and
reasonably requested documents from the Master Servicer; provided, further, that
if the Majority Certificateholder of the Controlling Class does not reject such
recommendation within five Business Days of its receipt of the Special
Servicer's recommendation and any additional documents and information that the
Majority Certificateholder of the Controlling Class may reasonably request, then
the waiver shall be deemed approved. Neither the Master Servicer nor the Special
Servicer shall approve such waiver unless the Mortgagor shall agree to pay all
fees and costs associated with such waiver (unless such condition shall have
been waived by the Majority Certificateholder of the Controlling Class or the
related Mortgage Loan Documents specifically preclude this requirement).
(d) With respect to any Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan (other than the Oakbrook Center Mortgage Loan) which permits
release of Mortgaged Properties through a Defeasance Option, the Master Servicer
shall, to the extent consistent with and permitted by the applicable Mortgage
Loan documents, permit (or, if the terms of such Mortgage Loan permit the lender
to require defeasance, the Master Servicer shall require) the exercise of such
Defeasance Option on any Due Date occurring more than two years after the
Startup Day or, in the case of a Mortgage Loan owned by the Countryside Village
Apartments REMIC or the Garden Lakes Shopping Center REMIC, more than two years
after the "startup day" for such REMIC (in each case, the "Release Date"),
subject to the following conditions:
(i) No event of default exists under the related Mortgage Note;
(ii) The Mortgagor pays on such Release Date (A) all interest
accrued and unpaid on the Principal Balance of the Mortgage Note to and
including the Release Date; (B) all other sums, excluding scheduled interest or
principal payments due under the Mortgage Note and (C) any costs and expenses
incurred in connection with such release;
138
(iii) The Mortgagor has delivered Defeasance Collateral providing
payments on or prior to all successive scheduled payment dates from the Release
Date to the related Maturity Date, and in an amount equal to or greater than the
scheduled payments due on such dates under the applicable Mortgage Loan or
Xxxxxxxx Fashion Center Companion Loan;
(iv) The Mortgagor shall have delivered a security agreement
granting the Trustee (on behalf of the Trust Fund and, with respect to the
Xxxxxxxx Fashion Center A/B Loan, the Xxxxxxxx Fashion Center Companion Holders)
a first priority security interest in the Defeasance Collateral;
(v) The Master Servicer shall have received an Opinion of Counsel
from the related Mortgagor (which shall be an expense of the related Mortgagor)
to the effect that the Trustee (on behalf of the Trust Fund and, with respect to
the Xxxxxxxx Fashion Center A/B Loan, the Xxxxxxxx Fashion Center Companion
Holders) has a first priority security interest in the Defeasance Collateral and
that the assignment thereof is valid and enforceable;
(vi) The Master Servicer shall have obtained at the related
Mortgagor's expense a certificate from an Independent certified public
accountant certifying that the Defeasance Collateral complies with the
requirements of the related Mortgage Note;
(vii) The Master Servicer shall have obtained an Opinion of
Counsel from the related Mortgagor to the effect that such release will not
cause any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at any
time that any Certificates are outstanding or cause a tax to be imposed on the
Trust Fund under the REMIC Provisions;
(viii) The related borrower shall have provided evidence to the
Master Servicer demonstrating that the lien of the related Mortgage is being
released to facilitate the disposition of the Mortgaged Property or another
customary commercial transaction, and not as part of an arrangement to
collateralize the Certificates issued by the related REMIC with obligations that
are not real estate mortgages;
(ix) If required by the terms of such Mortgage Loan, the Master
Servicer shall have received Rating Agency Confirmation from each of Xxxxx'x and
Standard & Poor's with respect to the exercise of such Defeasance Option;
provided, (A) that if the Master Servicer provides Standard & Poor's with the
written certification substantially in the form of Exhibit I attached hereto,
the Master Servicer shall be required to have received such Rating Agency
Confirmation from Standard & Poor's only with respect to any Mortgage Loan that
has an outstanding principal balance in excess of the lesser of (1) $5,000,000
or (2) 1% of the then outstanding principal balance of the Mortgage Pool, and
(B) the Master Servicer shall have received Rating Agency Confirmation from
Xxxxx'x with respect to the exercise of such Defeasance Option only as to any
Mortgage Loan that has an outstanding principal balance in excess of the lesser
of (1) $20,000,000 or (2) 5% of the then outstanding principal balance of the
Mortgage Pool; and
(x) if the Defeasance Option is being exercised to release less
than all of the Mortgaged Properties securing either a Cross-Collateralized
Mortgage Loan or a Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan
secured by multiple Mortgaged Properties,
139
the related borrower shall have provided evidence satisfactory to both the
Master Servicer and the Special Servicer that demonstrates compliance with any
debt service coverage ratio, loan-to-value ratio or other financial tests or
conditions specified in the applicable Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan in connection with the exercise of such Defeasance Option.
(e) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(f) Except as otherwise permitted by Section 3.21, neither the Master
Servicer nor the Special Servicer shall agree to modify, waive or amend any term
of any Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan in connection
with the taking of, or the failure to take, any action pursuant to this Section
3.08.
(g) In the event that the Master Servicer receives a request from any
Mortgagor for consent to (i) the transfer of a Mortgaged Property or assumption
of a Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan pursuant to Section
3.08(a) or (ii) the creation of an additional lien or encumbrance on a Mortgaged
Property pursuant to Section 3.08(b), the Master Servicer shall notify the
Special Servicer of such request and furnish to the Special Servicer any
applicable transfer, assumption, encumbrance or related documentation which the
Master Servicer has received in connection with such request.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall notify the Special Servicer of the
occurrence of a Servicing Transfer Event in respect of any Mortgage Loan or
Xxxxxxxx Fashion Center Companion Loan (other than the Oakbrook Center Mortgage
Loan). The Special Servicer shall monitor such Specially Serviced Mortgage Loan,
evaluate whether the causes of the default can be corrected over a reasonable
period without significant impairment of the value of the related Mortgaged
Property, initiate corrective action in cooperation with the Mortgagor if, in
the Special Servicer's judgment, cure is likely, and take such other actions
(including without limitation, negotiating and accepting a discounted payoff of
such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan) as are consistent
with the Servicing Standard. If, in the Special Servicer's judgment, such
corrective action has been unsuccessful, no satisfactory arrangement can be made
for collection of delinquent payments, and the Defaulted Mortgage Loan has not
been released from the Trust Fund pursuant to any provision hereof, then the
Special Servicer shall, subject to subsections (b) through (d) of this Section
3.09, exercise reasonable efforts, consistent with the Servicing Standard, to
foreclose upon or otherwise comparably convert (which may include an REO
Acquisition) the ownership of property securing such Mortgage Loan or Xxxxxxxx
Fashion Center Companion Loan. The foregoing is subject to the provision that,
in any case in which a Mortgaged Property shall have suffered damage from an
Uninsured Cause, the Master Servicer and the Special Servicer shall have the
right but not the obligation to expend its own funds toward the restoration of
such property if it shall determine in its reasonable discretion (i) that such
restoration will increase the net proceeds of liquidation of such Mortgaged
Property to Certificateholders after reimbursement to itself for
140
such expenses, and (ii) that such expenses will be recoverable by the Master
Servicer or Special Servicer, as the case may be, out of the proceeds of
liquidation of such Mortgaged Property, as contemplated in Sections 3.05(a) and
3.05(e), as applicable. The Master Servicer shall advance all other costs and
expenses incurred by the Special Servicer in any such proceedings, subject to
its being entitled to reimbursement therefor as a Servicing Advance as provided
in Sections 3.05(a) and 3.05(e), and further subject to the Special Servicer
being required to pay out of the related Liquidation Proceeds any Liquidation
Expenses incurred in respect of any Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan, which Liquidation Expenses were outstanding at the time such
proceeds are received. When applicable state law permits the Special Servicer to
select between judicial and non-judicial foreclosure in respect of any Mortgaged
Property, the Special Servicer shall make such selection in a manner consistent
with the Servicing Standard. Nothing contained in this Section 3.09 shall be
construed so as to require the Special Servicer, on behalf of the Trust Fund, to
make a bid on any Mortgaged Property at a foreclosure sale or similar proceeding
that is in excess of the fair market value of such property, as determined by
the Special Servicer in its sole judgment taking into account the factors
described in Section 3.19 and the results of any Appraisal obtained pursuant to
this Agreement, all such bids to be made in a manner consistent with the
Servicing Standard. If and when the Master Servicer or the Special Servicer
deems it necessary and prudent for purposes of establishing the fair market
value of any Mortgaged Property securing a Defaulted Mortgage Loan (other than
the Oakbrook Center Mortgage Loan), whether for purposes of bidding at
foreclosure or otherwise, the Master Servicer or the Special Servicer, as the
case may be, is authorized to have an Appraisal performed with respect to such
property (the cost of which Appraisal shall be covered by, and reimbursable as,
an Additional Trust Fund Expense).
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 (with the exception of cash or cash equivalents
pledged as collateral for a Mortgage Loan or Xxxxxxxx Fashion Center Companion
Loan) unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which may be withdrawn from the Certificate Account or
Xxxxxxxx Fashion Center Custodial Account, as applicable, pursuant to Sections
3.05(a) and 3.05(e), as applicable) to the effect that the holding of such
personal property by the Trust Fund will not (subject to Section 10.01(f)) cause
the imposition of a tax on the Trust Fund under the REMIC Provisions or cause
any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at any time
that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09, the
Special Servicer shall not, on behalf of the Trustee, initiate foreclosure
proceedings, obtain title to a Mortgaged Property in lieu of foreclosure or
otherwise, have a receiver of rents appointed with respect to any Mortgaged
Property, or take any other action with respect to any Mortgaged Property, if,
as a result of any such action, the Trustee, on behalf of the Certificateholders
or, with respect to the Xxxxxxxx Fashion Center A/B Loan, on behalf of the
Certificateholders and the Xxxxxxxx Fashion Center Companion Holders would be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property
141
within the meaning of CERCLA or any comparable law, unless (as evidenced by an
Officer's Certificate to such effect delivered to the Trustee) the Special
Servicer has previously received an Environmental Assessment in respect of such
Mortgaged Property prepared within the twelve months preceding such
determination by a Person who regularly conducts Environmental Assessments and
the Special Servicer, based solely (as to environmental matters and related
costs) on the information set forth in such Environmental Assessment, determines
that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that acquiring such Mortgaged
Property and taking such actions as are necessary to bring the Mortgaged
Property in compliance therewith is reasonably likely to produce a greater
recovery to Certificateholders (and if the Mortgaged Property is related to the
Xxxxxxxx Fashion Center A/B Loan, the Certificateholders and the Xxxxxxxx
Fashion Center Companion Holders) on a present value basis than not acquiring
such Mortgaged Property and not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of Hazardous
Materials for which investigations, testing, monitoring, containment, clean-up
or remediation could be required under any applicable environmental laws and
regulations or, if such circumstances or conditions are present for which any
such action could be required, that acquiring such Mortgaged Property and taking
such actions with respect to such Mortgaged Property is reasonably likely to
produce a greater recovery to Certificateholders (and if the Mortgaged Property
is related to the Xxxxxxxx Fashion Center A/B Loan, the Certificateholders and
the Xxxxxxxx Fashion Center Companion Holders) on a present value basis than not
acquiring such Mortgaged Property and not taking such actions.
The cost of any such Environmental Assessment, as well as the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding sentence, may be withdrawn from the Certificate
Account or, with respect to the Xxxxxxxx Fashion Center A/B Loan, from the
Xxxxxxxx Fashion Center Custodial Account by the Master Servicer at the
direction of the Special Servicer pursuant to Sections 3.05(a) and 3.05(e), as
applicable; and if any such Environmental Assessment so warrants, the Special
Servicer shall, at the expense of the Trust Fund, perform such additional
environmental testing as are consistent with the Servicing Standard to determine
whether the conditions described in clauses (i) and (ii) of the preceding
sentence have been satisfied.
(d) If the environmental testing contemplated by subsection (c) above
establishes that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a Defaulted Mortgage Loan serviced hereunder, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund and, with respect to the Xxxxxxxx Fashion Center A/B Loan, in
the best economic interest of the Trust Fund and the Xxxxxxxx Fashion Center
Companion Holders (other than proceeding to acquire title to the Mortgaged
Property) and is hereby authorized at such time as it deems appropriate to
release all or a portion of such Mortgaged Property from the lien of the related
Mortgage.
142
(e) The Special Servicer shall provide written reports monthly to the
Master Servicer (who shall forward such reports to the Trustee, who shall, upon
request, forward such reports to the Certificateholders and, with respect to the
Xxxxxxxx Fashion Center A/B Loan, to the Xxxxxxxx Fashion Center Companion
Holders) regarding any actions taken by the Special Servicer with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan serviced hereunder as to
which the environmental testing contemplated in subsection (c) above has
revealed that either of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof has not been satisfied, in each case until the earliest
to occur of satisfaction of both such conditions, removal of the related
Mortgage Loan from the Trust Fund and release of the lien of the related
Mortgage on such Mortgaged Property.
(f) The Special Servicer shall report to the Internal Revenue Service
and the related Mortgagor, in the manner required by applicable law, the
information required to be reported regarding any Mortgaged Property which is
abandoned or foreclosed, information returns with respect to the receipt of
mortgage interests received in a trade or business and the information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property required by Sections 6050J, 6050H and 6050P, respectively, of the Code.
Such reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050J, 6050H and 6050P of the Code. The Special
Servicer shall deliver a copy of any such report upon request to the Trustee.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment in respect of a Mortgage Loan or
Xxxxxxxx Fashion Center Companion Loan serviced hereunder if the state in which
the Mortgaged Property is located and the terms of the Mortgage Loan or Xxxxxxxx
Fashion Center Companion Loan permit such an action.
(h) The Special Servicer shall maintain accurate records of each Final
Recovery Determination in respect of a Defaulted Mortgage Loan or REO Property
serviced hereunder and the basis thereof. Each Final Recovery Determination
shall be evidenced by an Officer's Certificate delivered to the Trustee no later
than the 10th Business Day following such Final Recovery Determination.
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan, or the receipt by the Master Servicer or the Special
Servicer of a notification that payment in full shall be escrowed in a manner
customary for such purposes, the Master Servicer or the Special Servicer, as the
case may be, will immediately notify the Trustee (and, with respect to the
Xxxxxxxx Fashion Center A/B Loan, the related Xxxxxxxx Fashion Center Companion
Holder) and request delivery of the related Mortgage File. Any such notice and
request shall be in the form of a Request for Release signed by a Servicing
Officer and shall include a statement to the effect that all amounts received or
to be received in connection with such payment which are required to be
deposited in the Certificate Account pursuant to Section 3.04(a) have been or
will be so deposited. Within seven Business Days (or within such shorter period
as release can reasonably be accomplished if the Master Servicer or the Special
Servicer notifies the Trustee of an exigency) of receipt of such notice and
request, the Trustee shall
143
release, or cause any related Custodian to release, the related Mortgage File
(and, in the case of a Xxxxxxxx Fashion Center Companion Loan, the Trustee shall
direct the related Xxxxxxxx Fashion Center Companion Holder to release the
Mortgage Note for such Xxxxxxxx Fashion Center Companion Loan) to the Master
Servicer or the Special Servicer, whichever requested it. No expenses incurred
in connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the Certificate Account or, with respect to the Xxxxxxxx
Fashion Center A/B Loan, to the Xxxxxxxx Fashion Center Custodial Account.
(b) From time to time as is appropriate for servicing or foreclosure of
any Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan, the Master Servicer
or the Special Servicer may deliver to the Trustee a Request for Release signed
by a Servicing Officer thereof. Upon receipt of the foregoing, the Trustee shall
deliver or cause the related Custodian to deliver the Mortgage File or any
document therein to the Master Servicer or the Special Servicer, as the case may
be. Upon return of such Mortgage File or such document to the Trustee or the
related Custodian, or the delivery to the Trustee of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation which are
required to be deposited into the Certificate Account pursuant to Section
3.04(a) or with respect to the Xxxxxxxx Fashion Center A/B Loan, into the
Xxxxxxxx Fashion Center Custodial Account pursuant to Section 3.04(f) have been
or will be so deposited, or that such Mortgage Loan has become an REO Property,
the Request for Release shall be released by the Trustee to the Master Servicer
or the Special Servicer, as applicable.
(c) Within three Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. The Special
Servicer shall be responsible for the preparation of all such documents and
pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11 Servicing Compensation; Nonrecoverable Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to receive the Servicing Fee with respect to each Mortgage
Loan (including the Xxxxxxxx Fashion Center A-2 Note) and each REO Loan
(excluding an REO Loan related to the Xxxxxxxx Fashion Center B Note). As to
each Mortgage Loan (including the Xxxxxxxx Fashion Center A-2 Note) and each REO
Loan (excluding an REO Loan related to the Xxxxxxxx Fashion Center B Note), the
Servicing Fee shall accrue from time to time at the Servicing Fee Rate and shall
be computed on the same basis and the same principal amount respecting which any
related interest payment due on such Mortgage Loan (including the Xxxxxxxx
Fashion Center A-2 Note) or
144
deemed to be due on such REO Loan (excluding an REO Loan related to the Xxxxxxxx
Fashion Center B Note) is computed. The Servicing Fee with respect to any
Mortgage Loan (including the Xxxxxxxx Fashion Center A-2 Note) or any REO Loan
(excluding an REO Loan related to the Xxxxxxxx Fashion Center B Note) shall
cease to accrue if a Liquidation Event occurs in respect thereof. The Servicing
Fee shall be payable monthly, on a loan-by-loan basis, from payments of interest
on each Mortgage Loan (including the Xxxxxxxx Fashion Center A-2 Note but
excluding the Oakbrook Center Mortgage Loan), REO Revenues allocable as interest
on each REO Loan (excluding an REO Loan related to the Xxxxxxxx Fashion Center B
Note) and the interest portion of Delinquency Advances on such Mortgage Loan
(including the Xxxxxxxx Fashion Center A-2 Note but excluding the Oakbrook
Center Mortgage Loan) and REO Loan (excluding an REO Loan related to the
Xxxxxxxx Fashion Center B Note). The Master Servicer shall be entitled to
recover unpaid Servicing Fees in respect of any Mortgage Loan (including the
Xxxxxxxx Fashion Center A-2 Note but excluding the Oakbrook Center Mortgage
Loan) or REO Loan (excluding an REO Loan related to the Xxxxxxxx Fashion Center
B Note) out of that portion of related Insurance Proceeds or Liquidation
Proceeds allocable as recoveries of interest, to the extent permitted by Section
3.05(a). The right to receive the Servicing Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement.
(b) Additional servicing compensation in the form of assumption fees,
modification fees, earnout fees, charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and any similar or
ancillary fees (excluding any other amounts relating to Prepayment Premiums), in
each case to the extent actually paid by a Mortgagor with respect to a Mortgage
Loan or Xxxxxxxx Fashion Center Companion Loan (other than the Oakbrook Center
Mortgage Loan) that is not a Specially Serviced Mortgage Loan, is not required
to be deposited in the Certificate Account or, with respect to the Xxxxxxxx
Fashion Center A/B Loan, is not required to be deposited in the Xxxxxxxx Fashion
Center Custodial Account and, to the extent not required to be paid to the
Special Servicer pursuant to Section 3.11(d), may be retained by the Master
Servicer. The Master Servicer shall also be entitled to additional servicing
compensation in the form of (i) any Prepayment Interest Excesses, Balloon
Payment Interest Excesses, and further to the extent received on Mortgage Loans
other than Specially Serviced Mortgage Loans or Xxxxxxxx Fashion Center
Companion Loans, any Penalty Charges not allocable to pay Advance Interest
collected on the Mortgage Loans; (ii) interest or other income earned on
deposits in the Investment Accounts (other than the REO Account), in accordance
with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to each such Investment Account for each Collection Period),
and (iii) to the extent not required to be paid to any Mortgagor under
applicable law or under the related Mortgage, any interest or other income
earned on deposits in the Servicing Accounts and Reserve Accounts maintained
thereby. The Master Servicer shall be required to pay out of its own funds all
overhead and general and administrative expenses incurred by it in connection
with its servicing activities hereunder (including, without limitation, payment
of any amounts due and owing to any Sub-Servicers retained by it and the
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.07(b)), if and to the extent such expenses are not payable directly
out of the Certificate Account, and the Master Servicer shall not be entitled to
reimbursement therefor except as expressly provided in this Agreement.
145
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and each such REO Loan, the Special Servicing Fee shall
accrue from time to time at the Special Servicing Fee Rate on the same basis and
the same principal amount respecting which any related interest payment due on
such Specially Serviced Mortgage Loan or deemed to be due on such REO Loan is
computed. The Special Servicing Fee with respect to each Specially Serviced
Mortgage Loan and each REO Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof. As to each Specially Serviced
Mortgage Loan and each REO Loan, earned but unpaid Special Servicing Fees shall
be payable monthly out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Certificate Account pursuant to Section 3.05(a);
provided, with respect to the Xxxxxxxx Fashion Center A/B Loan, earned but
unpaid Special Servicing Fees shall be payable monthly out of general
collections on the Xxxxxxxx Fashion Center A/B Loan or related REO Property on
deposit in the Xxxxxxxx Fashion Center Custodial Account pursuant to Section
3.05(e).
As further compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Workout Fee with respect to each Corrected
Mortgage Loan. As to each Corrected Mortgage Loan, the Workout Fee shall be
payable from, and shall be calculated by application of the Workout Fee Rate to,
each collection of interest and principal received on such Corrected Mortgage
Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if a Servicing
Transfer Event occurs with respect thereto or if the related Mortgaged Property
becomes an REO Property; provided, that a new Workout Fee will become payable if
and when such Mortgage Loan again or Xxxxxxxx Fashion Center Companion Loan
becomes a Corrected Mortgage Loan. If the Special Servicer is terminated or
resigns in accordance with Section 6.04, it shall retain the right to receive
any and all Workout Fees payable in respect of (i) any Mortgage Loan or Xxxxxxxx
Fashion Center Companion Loan that became a Corrected Mortgage Loan during the
period that it acted as Special Servicer and were still such at the time of such
termination or resignation and (ii) any Specially Serviced Mortgage Loan for
which the Special Servicer has resolved the circumstances and/or conditions
causing any such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan to be a
Specially Serviced Mortgage Loan such that the related Mortgagor has made at
least one timely Monthly Payment as of the date of such termination or
resignation and such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan
otherwise meets the requirements of a Corrected Mortgage Loan, with the Workout
Fee with respect to such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan
payable only after such requirements have been met (including the requirement
that three payments be made) (and any successor Special Servicer shall not be
entitled to any portion of such Workout Fees), in each case until the Workout
Fee for any such loan ceases to be payable in accordance with the preceding
sentence.
As further compensation for its activities hereunder, the Special Servicer
shall also be entitled to receive a Liquidation Fee with respect to each
Specially Serviced Mortgage Loan or REO Property as to which it receives any
full or discounted payoff or any Liquidation Proceeds (other than in connection
with the purchase of any such Specially Serviced Mortgage Loan or REO Property
by the Majority Certificateholder of the Controlling Class, the Special Servicer
or a Mortgage Loan Seller pursuant to Section 3.18 or by the Master Servicer,
the Majority
146
Certificateholder of the Controlling Class or the Depositor pursuant to Section
9.01 or by a Xxxxxxxx Fashion Center Companion Holder pursuant to the Xxxxxxxx
Fashion Center A/B Intercreditor Agreement). As to each such Specially Serviced
Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and
shall be calculated by application of the Liquidation Fee Rate to, such full or
discounted payoff and/or such Liquidation Proceeds. No Liquidation Fee will be
payable with respect to any Specially Serviced Mortgage Loan solely by virtue of
such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan becoming a
Corrected Mortgage Loan. Notwithstanding anything herein to the contrary, no
Liquidation Fee will be payable from, or based upon the receipt of, Liquidation
Proceeds collected as a result of any purchase of a Specially Serviced Mortgage
Loan or REO Property described in the parenthetical to the first sentence of
this paragraph; provided, however, that if any such Liquidation Proceeds are
received with respect to any Corrected Mortgage Loan, and the Special Servicer
is properly entitled to a Workout Fee therefrom, such Workout Fee will be
payable based on and from the portion of such Liquidation Proceeds that
constitute principal and/or interest.
Notwithstanding anything to the contrary herein, a Liquidation Fee and a
Workout Fee relating to the same Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan shall not be paid from the same proceeds on or with respect to
such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan.
Subject to the Special Servicer's right to receive the Special Servicing
Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement.
(d) Additional servicing compensation in the form of (i) all assumption
fees, modification fees and earnout fees received on or with respect to
Specially Serviced Mortgage Loans and (ii) fifty percent (50%) of all assumption
fees, modification fees and earnout fees received on or with respect to any
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan (other than the Oakbrook
Center Mortgage Loan) that is not a Specially Serviced Mortgage Loan shall be
promptly paid by the Master Servicer to the Special Servicer and shall not be
required to be deposited in the Certificate Account pursuant to Section 3.04(a)
or, with respect to the Xxxxxxxx Fashion Center A/B Loan, in the Xxxxxxxx
Fashion Center Custodial Account pursuant to Section 3.04(f). Additional
servicing compensation in the form of assumption fees, earnout fees and
modification fees that the Master Servicer is entitled to and that are collected
by the Special Servicer, shall be paid promptly to the Master Servicer by the
Special Servicer. The Special Servicer shall also be entitled to additional
servicing compensation in the form of: (i) to the extent not required to be paid
to any Mortgagor under applicable law, any interest or other income earned on
deposits in the REO Account, any Servicing Accounts and any Reserve Accounts
maintained thereby; and (ii) to the extent not required to be paid to the Master
Servicer as additional servicing compensation pursuant to Section 3.11(b), any
Penalty Charges (to the extent not allocable to pay Advance Interest) collected
on the Specially Serviced Mortgage Loans and REO Loans. The Special Servicer
shall be required to pay out of its own funds all overhead and general and
administrative expenses incurred by it in connection with its servicing
activities hereunder (including, without limitation, the premiums for any
blanket policy obtained by it insuring against hazard losses pursuant to Section
3.07(b)) and, if and to the extent such
147
expenses are not payable directly out of the Certificate Account, the Xxxxxxxx
Fashion Center Custodial Account, the REO Account or the Xxxxxxxx Fashion Center
A/B Loan REO Account, the Special Servicer shall not be entitled to
reimbursement except as expressly provided in this Agreement.
(e) If the Master Servicer is required under this Agreement to make a
Servicing Advance, but does not make such Servicing Advance within 15 days after
such Advance is required to be made, the Trustee shall, to the extent a
Responsible Officer of the Trustee has actual knowledge of such failure by the
Master Servicer or the Special Servicer to make such Advance (subject to Section
3.11(h) below), make such Advance. If the Trustee fails to make a Servicing
Advance required to be made by it, the Fiscal Agent shall make such advance
(subject to Section 3.11(h) below) within one Business Day of such failure by
the Trustee. The making of such Advance by the Fiscal Agent shall cure the
failure by the Trustee to make such Advance.
(f) (i) The Master Servicer, the Trustee and the Fiscal Agent shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of each Servicing Advance made thereby for
so long as such Servicing Advance is outstanding, payable, first, out of Penalty
Charges received on the Mortgage Loan or REO Loan as to which such Servicing
Advance was made and, then, once such Servicing Advance has been reimbursed
pursuant to Section 3.05, out of general collections on the Mortgage Loans and
REO Properties and (ii) with respect to the Xxxxxxxx Fashion Center A/B Loan,
the Master Servicer, the Trustee and the Fiscal Agent shall each be entitled to
receive interest at the Reimbursement Rate in effect from time to time, accrued
on the amount of each Servicing Advance made thereby for so long as such
Servicing Advance is outstanding, payable, first, out of Penalty Charges
received on the Xxxxxxxx Fashion Center A/B Loan or the related REO Loan,
second, once such Servicing Advance has been reimbursed pursuant to Section
3.05, out of collections on the Xxxxxxxx Fashion Center A/B Loan or related REO
Property, and third, once such Servicing Advance has been reimbursed pursuant to
Section 3.05, out of general collections on the Mortgage Loans and REO
Properties;
(g) On each Master Servicer Remittance Date, the Master Servicer shall
pay from the related Servicing Fee each Broker Strip Amount by wire transfer in
immediately available funds to an account designated by the Strip Holder.
(h) Notwithstanding anything to the contrary set forth herein, none of
the Master Servicer, the Trustee or the Fiscal Agent shall be required to make
any Servicing Advance that it determines in its reasonable, good faith judgment
would constitute a Nonrecoverable Servicing Advance; provided, however, that the
Master Servicer may make an Emergency Advance notwithstanding that, at the time
such Advance is made, the Master Servicer or Special Servicer may not have
adequate information available in order to make a determination whether or not
such advance would, if made, be a Nonrecoverable Servicing Advance.
Notwithstanding the previous sentence, if the Master Servicer or Special
Servicer, as applicable, shall determine that the payment of any such amount is
(i) necessary to preserve the related Mortgaged Property and (ii) would be in
the best interest of the Certificateholders and with respect to the Xxxxxxxx
Fashion Center A/B Loan, the Xxxxxxxx Fashion Center Companion Holders, then the
Master Servicer shall make such payment from amounts in the Certificate
148
Account or the Xxxxxxxx Fashion Center Custodial Account, as applicable. In
addition, Nonrecoverable Servicing Advances (including any Emergency Advances
made pursuant to the proviso of the preceding sentence which are ultimately
determined to be Nonrecoverable Servicing Advances) shall be reimbursable
pursuant to Section 3.05 out of general collections on the Mortgage Loans and
REO Properties on deposit in the Certificate Account. The determination by the
Master Servicer, the Special Servicer (only in the case of clause (ii) of this
sentence), the Trustee or the Fiscal Agent, as applicable, (i) that it has made
a Nonrecoverable Servicing Advance or (ii) that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced
by an Officer's Certificate delivered promptly to the Trustee (or, if
applicable, retained thereby) and the Depositor, setting forth the basis for
such determination, together with (if such determination is prior to the
liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal
of the related Mortgaged Property or REO Property, as the case may be, if an
Appraisal shall have been performed within the twelve months preceding such
determination, and further accompanied by any other information, including,
without limitation, engineering reports, environmental surveys, inspection
reports, rent rolls, income and expense statements or similar reports, that the
Master Servicer or the Special Servicer may have obtained and that supports such
determination. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to
its reasonable and good faith determination that such Appraisal will demonstrate
the nonrecoverability of the related Advance, obtain an Appraisal for such
purpose at the expense of the Trust Fund. The Trustee and the Fiscal Agent shall
be entitled to rely on any determination of nonrecoverability that may have been
made by the Master Servicer or the Special Servicer with respect to a particular
Servicing Advance, and the Master Servicer shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Special
Servicer with respect to a particular Servicing Advance.
(i) In determining the compensation of the Master Servicer or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
or Xxxxxxxx Fashion Center Companion Loan since the prior Distribution Date
shall be applied to reimburse (i) the Master Servicer, the Trustee or the Fiscal
Agent for interest on Advances with respect to such related Mortgage Loan or
Xxxxxxxx Fashion Center Companion Loan due with respect to such Distribution
Date and (ii) the Trust Fund for any Advance Interest or Additional Trust Fund
Expenses (excluding any Special Servicing Fees, Workout Fees and Liquidation
Fees) with respect to the related Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan incurred since the Closing Date and not previously reimbursed out
of Penalty Charges, and any Penalty Charges remaining thereafter shall be
distributed pro rata to the Master Servicer and the Special Servicer based upon
the amount of Penalty Charges the Master Servicer or the Special Servicer would
otherwise have been entitled to receive during such period with respect to such
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan without any such
application.
SECTION 3.12 Inspections; Collection of Financial Statements.
(a) The Master Servicer shall perform (or cause to be performed) a
physical inspection of each Mortgaged Property (other than Mortgaged Property
constituting collateral for the Oakbrook Center Mortgage Loan or Specially
Serviced Mortgaged Loans) at such times and
149
in such manner as are consistent with the Servicing Standard, but in any event
at least once every two years or, if the related Mortgage Loan has a current
balance of greater than $2,000,000, at least once every year. The Master
Servicer shall prepare (or cause to be prepared) a written report of each such
inspection detailing the condition of the Mortgaged Property and specifying the
existence of (i) any vacancy in the Mortgaged Property evident from such
inspection that the Master Servicer deems material, (ii) any sale, transfer or
abandonment of the Mortgaged Property evident from such inspection, (iii) any
adverse change in the condition or value of the Mortgaged Property evident from
such inspection that the Master Servicer deems material, or (iv) any waste
committed on the Mortgaged Property evident from such inspection. The Master
Servicer, upon request, shall deliver to the Trustee a copy of each such written
report.
(b) The Special Servicer shall perform (or cause to be performed) a
physical inspection of each Mortgaged Property constituting collateral for a
Specially Serviced Mortgage Loan at such times and in such manner as are
consistent with the Servicing Standard. If any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan becomes a Specially Serviced Mortgage Loan, then as soon
as practicable (and in any event within 90 days thereafter) the Special Servicer
shall perform (or cause to be performed) a physical inspection of each Mortgaged
Property constituting collateral for such Mortgage Loan. The Special Servicer
shall prepare (or cause to be prepared) a written report of each such inspection
detailing the condition of the Mortgaged Property and specifying the existence
of (i) any vacancy in the Mortgaged Property evident from such inspection that
the Special Servicer deems material, (ii) any sale, transfer or abandonment of
the Mortgaged Property evident from such inspection, (iii) any adverse change in
the condition or value of the Mortgaged Property evident from such inspection
that the Special Servicer deems material, or (iv) any waste committed on the
Mortgaged Property evident from such inspection. The Special Servicer, upon
request, shall deliver to the Trustee and the Master Servicer a copy of each
such written report.
(c) The Master Servicer, in the case of any Mortgage Loan (including
the Xxxxxxxx Fashion Center A/B Loan but excluding the Oakbrook Center Mortgage
Loan) or Specially Serviced Mortgage Loans, or the Special Servicer, in the case
of Specially Serviced Mortgage Loans, shall make reasonable efforts to collect
promptly from each Mortgagor (other than a Mortgagor on any Credit Lease Loan)
quarterly and annual operating statements and rent rolls of the related
Mortgaged Property. In addition, the Special Servicer shall make reasonable
efforts to obtain quarterly and annual operating statements and rent rolls with
respect to each REO Property. The Master Servicer and the Special Servicer, upon
request, shall each deliver copies of the collected items to the other such
party and the Trustee in each case within ten days of its receipt of such
request.
In addition, any Xxxxxxxx Fashion Center Companion Holder may request that
the Mortgaged Property related to the Xxxxxxxx Fashion Center Mortgage Loan be
inspected and such Mortgaged Property shall be inspected by the Master Servicer
or Special Servicer, as applicable, as soon as practicable thereafter. Any
inspection pursuant to the preceding sentence shall be made at the sole cost and
expense of a Xxxxxxxx Fashion Center Companion Holder making such request and
the cost and expense of such inspection may be deducted from amounts otherwise
payable to such Xxxxxxxx Fashion Center Companion Holder.
150
SECTION 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to the
Trustee (who shall deliver to each Xxxxxxxx Fashion Center Companion Holder),
with a copy to the Depositor, on or before March 15th of each year, beginning in
2004, an Officer's Certificate stating, as to the signer thereof, that (i) a
review of the activities of the Master Servicer or the Special Servicer, as the
case may be, during the preceding calendar year and of its performance under
this Agreement has been made under such officer's supervision, (ii) to the best
of such officer's knowledge, based on such review, the Master Servicer or the
Special Servicer, as the case may be, has fulfilled in all material respects its
obligations under this Agreement throughout such year, or, if there has been a
material default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof and (iii) the
Master Servicer or the Special Servicer, as the case may be, has received no
notice regarding qualification, or challenging the status, of the Trust Fund as
a REMIC or of the Grantor Trust as a "grantor trust" under the Grantor Trust
Provisions from the Internal Revenue Service or any other governmental agency or
body or, if it has received any such notice, specifying the details thereof. A
copy of such Officer's Certificate may be obtained by Certificateholders upon
written request to the Trustee pursuant to Section 8.12 hereof.
SECTION 3.14 Reports by Independent Public Accountants.
On or before March 15th of each year, beginning in 2004, the Master
Servicer at its expense shall cause a firm of independent public accountants
(which may also render other services to the Master Servicer) that is a member
of the American Institute of Certified Public Accountants to furnish a statement
to the Trustee and the Xxxxxxxx Fashion Center Companion Paying Agent (who shall
deliver to each Xxxxxxxx Fashion Center Companion Holder) and to the Depositor
to the effect that (i) it has obtained a letter of representation regarding
certain matters from the management of the Master Servicer, which includes an
assertion that the Master Servicer has complied with certain minimum mortgage
loan servicing standards (to the extent applicable to commercial and multifamily
mortgage loans), identified in the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America,
with respect to the servicing of commercial and multifamily mortgage loans
during the most recently completed calendar year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of commercial and
multifamily mortgage loans by Sub-Servicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of examinations
conducted in accordance with the same standards (rendered within one year of
such report) with respect to those Sub-Servicers.
The Special Servicer will deliver an annual accountants' report only if,
and in such form as may be, requested by the Rating Agencies or if the Special
Servicer and the Master Servicer are not the same Person.
The Master Servicer and the Special Servicer, to the extent applicable,
will use reasonable efforts to cause the accountants referred to above to
cooperate with the Depositor in
151
conforming any reports delivered pursuant to this Section 3.14 to requirements
imposed by the Commission on the Depositor in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust Fund pursuant to the Exchange Act.
SECTION 3.15 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall provide or cause
to be provided to the Trustee, and to the OTS, the FDIC, and any other federal
or state banking or insurance regulatory authority that may exercise authority
over any Certificateholder, a holder of a Xxxxxxxx Fashion Center Companion Loan
Security or a Xxxxxxxx Fashion Center Companion Holder, access to any
documentation regarding the Mortgage Loans and the Trust Fund within its control
which may be required by this Agreement or by applicable law. Such access shall
be afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it; provided, however, that
the applicable Certificateholders, holder of a Xxxxxxxx Fashion Center Companion
Loan Security or Xxxxxxxx Fashion Center Companion Holder, as the case may be,
shall be required to pay any photocopying costs. The Master Servicer and the
Special Servicer shall each be entitled to affix a reasonable disclaimer to any
information provided by it for which it is not the original source (without
suggesting liability on the part of any other party hereto). The Master Servicer
and the Special Servicer may each deny any of the foregoing persons access to
confidential information or any intellectual property which the Master Servicer
or the Special Servicer is restricted by license, contract or otherwise from
disclosing. Neither the Master Servicer nor the Special Servicer shall be liable
for providing or disseminating information in accordance with the terms of this
Agreement.
SECTION 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate
of sale shall be issued to the Trustee or its nominee on behalf of the
Certificateholders (and with respect to the Xxxxxxxx Fashion Center A/B Loan, on
behalf of the Certificateholders and the Xxxxxxxx Fashion Center Companion
Holders). The Special Servicer, on behalf of the Trust Fund (and with respect to
the Xxxxxxxx Fashion Center A/B Loan, on behalf of Certificateholders and the
Xxxxxxxx Fashion Center Companion Holders), shall attempt to sell any REO
Property prior to the close of the third taxable year of the Trust Fund
following the taxable year in which ownership of such REO Property is acquired
for purposes of Section 860G(a)(8) of the Code, unless the Special Servicer
either (i) is granted an extension of time (an "REO Extension") by the Internal
Revenue Service to sell such REO Property is acquired or (ii) obtains for the
Trustee an Opinion of Counsel, addressed to the Trustee and the Special
Servicer, to the effect that the holding by the Trust Fund of such REO Property
subsequent to the close of such period will not (subject to Section 10.01(f))
result in the imposition of taxes on "prohibited transactions" of REMIC I, REMIC
II or REMIC III as defined in Section 860F of the Code or cause REMIC I, REMIC
II or REMIC III to fail to qualify as a REMIC (for federal (or any applicable
state or local) income tax purposes) at any time that any Certificates are
outstanding or cause any REMIC that holds a Xxxxxxxx Fashion Center Companion
Loan to fail to qualify as a REMIC. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the
152
immediately preceding sentence, the Special Servicer shall sell such REO
Property within such longer liquidation period as is permitted by such REO
Extension or such Opinion of Counsel, as the case may be. Any expense incurred
by the Special Servicer in connection with its being granted the REO Extension
contemplated by clause (i) of the second preceding sentence or its obtaining the
Opinion of Counsel contemplated by clause (ii) of the second preceding sentence,
shall be an expense of the Trust Fund payable out of the Certificate Account
pursuant to Section 3.05(a).
(b) The Special Servicer shall cause all funds collected and received
in connection with any REO Property to be held separate and apart from its own
funds and general assets. If any REO Acquisition shall occur, the Special
Servicer shall establish and maintain (or cause to be established and
maintained) one or more accounts (collectively, the "REO Account"), to be held
on behalf of the Trustee in trust for the benefit of the Certificateholders, for
the retention of revenues and other proceeds derived from each REO Property. The
REO Account shall be an Eligible Account and may consist of one account for some
or all of the REO Properties. If such REO Acquisition occurs with respect to the
Mortgaged Property securing the Xxxxxxxx Fashion Center A/B Loan, the Special
Servicer shall establish an REO Account solely with respect to such property (a
"Xxxxxxxx Fashion Center A/B Loan REO Account"), to be held for the benefit of
the Certificateholders and the applicable Xxxxxxxx Fashion Center Companion
Holders. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, within two Business Days of receipt, all REO Revenues, Liquidation
Proceeds (net of all Liquidation Expenses paid therefrom) and Insurance Proceeds
received in respect of an REO Property. The Special Servicer is authorized to
pay out of related Liquidation Proceeds any Liquidation Expenses incurred in
respect of an REO Property and outstanding at the time such proceeds are
received. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from the REO Account to pay itself, as additional servicing
compensation in accordance with Section 3.11(d), interest and investment income
earned in respect of amounts held in the REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
the REO Account for any Collection Period). The Special Servicer shall give
notice to the Trustee and the Master Servicer (and with respect to the Xxxxxxxx
Fashion Center A/B Loan REO Account, the Xxxxxxxx Fashion Center Companion
Holders) of the location of any REO Account when first established and of the
new location of such REO Account prior to any change thereof.
(c) The Special Servicer shall cause all funds necessary for the proper
operation, management, maintenance, disposition and liquidation of any REO
Property to be withdrawn from the REO Account, but only to the extent of amounts
on deposit in the REO Account relating to such REO Property. Within one Business
Day following the end of each Collection Period, the Special Servicer shall
withdraw from the REO Account and deposit into the Certificate Account (or with
respect to the Xxxxxxxx Fashion Center A/B Loan, shall withdraw from the
Xxxxxxxx Fashion Center A/B Loan REO Account and deposit into the Xxxxxxxx
Fashion Center Custodial Account) or deliver to the Master Servicer (which shall
deposit such amounts into the Certificate Account or Xxxxxxxx Fashion Center
Custodial Account, as applicable) the aggregate of all amounts received in
respect of each REO Property during such Collection Period, net of any
withdrawals made out of such amounts pursuant to Section 3.16 (b) or this
Section 3.16(c); provided, that the Special Servicer may retain in the
153
REO Account such portion of proceeds and collections as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
maintenance and disposition of the related REO Property (including without
limitation the creation of a reasonable reserve for repairs, replacements and
necessary capital improvements and other related expenses), such reserve not to
exceed an amount sufficient to cover such items to be incurred during the
following twelve-month period.
(d) The Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17 Management of REO Property; Independent Contractors.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a Defaulted Mortgage Loan, the Special Servicer shall review the
operation of such Mortgaged Property and determine the nature of the income that
would be derived from such property if it were acquired by the Trust Fund. If
the Special Servicer determines from such review, in its good faith and
reasonable judgment, that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the tax
imposed on "prohibited transactions" under Section 860F of the Code (either such
tax referred to herein as an "REO Tax"), such Mortgaged Property may be Directly
Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO
Property could result in income from such property that would be subject to an
REO Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor with
respect to such property, or another method of operating such property would not
result in income subject to an REO Tax, then the Special Servicer may (provided
that in the good faith and reasonable judgment of the Special Servicer, it is
commercially feasible) acquire such Mortgaged Property as REO Property and so
lease or operate such REO Property; or
(iii) Directly Operating such property as REO Property could
result in income subject to an REO Tax and, in the good faith and reasonable
judgment of the Special Servicer, that no commercially feasible means exists to
operate such property as REO Property without the Trust Fund incurring or
possibly incurring an REO Tax on income from such property, the Special Servicer
shall deliver to the Trustee, in writing, a proposed plan (the "Proposed Plan")
to manage such property as REO Property (such plan to be approved by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.24(f)
or, with respect to the Xxxxxxxx Fashion Center A/B Loan and in the absence of a
Xxxxxxxx Fashion Center B Note Control Appraisal Event, the Xxxxxxxx Fashion
Center B Note Holder). Such plan shall include potential sources of income, and
to the extent commercially feasible, estimates of the amount of income from each
such source. Within a reasonable period of time after receipt of such plan, the
Trustee shall consult with the Special Servicer and shall advise the Special
Servicer of the Trust Fund's federal income tax reporting position with respect
to the various sources of income that
154
the Trust Fund would derive under the Proposed Plan. In addition, the Trustee
shall (to the maximum extent possible) advise the Special Servicer of the
estimated amount of taxes that the Trust Fund would be required to pay with
respect to each such source of income. After receiving the information described
in the two preceding sentences from the Trustee, the Special Servicer shall
either (A) implement the Proposed Plan (after acquiring the respective Mortgaged
Property as REO Property) or (B) manage and operate such property in a manner
that would not result in the imposition of an REO Tax on the income derived from
such property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall in any event be based on the good faith and
reasonable judgment of the Special Servicer as to which means would (to the
extent commercially feasible) maximize the net after-tax REO Revenues received
by the Trust Fund and, with respect to the Xxxxxxxx Fashion Center A/B Loan, the
Trust Fund and the Xxxxxxxx Fashion Center Companion Holders, with respect to
such property without materially and adversely affecting the Special Servicer's
ability to sell such REO Property in accordance with this Agreement and, to the
extent consistent with the foregoing, in accordance with the Servicing Standard.
Both the Special Servicer and the Trustee may consult with counsel knowledgeable
in such matters at the expense of the Trust Fund in connection with
determinations required under this Section 3.17(a). Neither the Special Servicer
nor the Trustee shall be liable to the Certificateholders, the Trust Fund, the
other parties hereto or each other for errors in judgment made in good faith in
the reasonable exercise of their discretion while performing their respective
responsibilities under this Section 3.17(a) or, to the extent it relates to
federal income tax consequences for the Trust Fund, Section 3.17(b) below.
Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted
Mortgage Loan or REO Property pursuant to the terms and subject to the
conditions of Section 3.18 or 3.19.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as permitted by Section 3.17(a), result in the receipt of any "income
from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the
Code or any "net income from foreclosure property" which is subject to taxation
under the REMIC Provisions. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are in the best interests of and for the benefit of the
Certificateholders and, with respect to the Xxxxxxxx Fashion Center A/B Loan,
the Certificateholders and the Xxxxxxxx Fashion Center Companion Holders, (as
determined by the Special Servicer in its good faith and reasonable judgment)
and, consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to each REO Property, funds necessary
for the proper operation, management, maintenance and disposition of such REO
Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
155
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease and
dispose of such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in the prior sentence with
respect to such REO Property, the Master Servicer (at the direction of the
Special Servicer) shall advance such amount as is necessary for such purposes
(which advances shall be Servicing Advances) unless (as evidenced by an
Officer's Certificate delivered to the Trustee) such advances would, if made,
constitute Nonrecoverable Servicing Advances; provided, however, that the Master
Servicer (at the direction of the Special Servicer) shall make any such
Servicing Advance if it is a necessary fee or expense incurred in connection
with the defense or prosecution of legal proceedings and such advance will be
deemed to constitute a recoverable Servicing Advance.
(c) The Special Servicer may contract with any Independent Contractor
for the operation and management of any REO Property; provided:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of the
nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered
to require, that the Independent Contractor (A) pay, out of related REO
Revenues, all costs and expenses incurred in connection with the operation and
management of such REO Property, including, without limitation, those listed in
subsection (b) hereof, and (B) remit all related REO Revenues (net of its fees
and such costs and expenses) to the Special Servicer;
(iv) none of the provisions of this Section 3.17(c) relating to
any such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any such
REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into an agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
156
SECTION 3.18 Sale of Defaulted Mortgage Loans.
(a) The parties hereto may sell or purchase, or permit the sale or
purchase of, a Mortgage Loan (other than the Oakbrook Center Mortgage Loan) only
on the terms and subject to the conditions set forth in this Section 3.18 or as
otherwise expressly provided in or contemplated by Sections 2.03(a) and 9.01.
(b) In the event that any Mortgage Loan (other than the Oakbrook Center
Mortgage Loan) becomes 60 days delinquent as to any Monthly Payment (or if such
Mortgage Loan is a Balloon Mortgage Loan and is delinquent as to its Balloon
Payment, only if such Mortgage Loan is also a Specially Serviced Mortgage Loan),
the Special Servicer shall promptly so notify in writing (an "Option Notice")
the Master Servicer and the Trustee, and the Trustee shall promptly notify, in
writing, the Holders of the Controlling Class and the Xxxxxxxx Fashion Center
Note B Holder, if applicable. Each of the Majority Certificateholder of the
Controlling Class and the applicable Mortgage Loan Seller with respect to such
Mortgage Loan (in such capacity, together with any assignee, the "Option
Holder") shall, in that order, have the right, at its option (the "Option"), to
purchase such Mortgage Loan from the Trust Fund at a price equal to the Option
Purchase Price (as defined in clause (c) below) upon receipt of such Option
Notice. The Option is exercisable from that date until terminated pursuant to
clause (f) below, and during that period the Option shall be exercisable in any
month only during the period from the 10th calendar day of such month through
the 25th calendar day, inclusive, of such month. The Trustee on behalf of the
Trust Fund shall be obligated to sell the Mortgage Loan upon the exercise of the
Option (whether exercised by the original Holder thereof or by an assignee of
such Holder), but shall have no authority to sell the Mortgage Loan other than
in connection with the exercise of an Option (or as otherwise expressly provided
in or contemplated by Section 2.03(a) or Section 9.01). Any Option Holder that
exercises the Option shall be required to purchase the Mortgage Loan within four
Business Days of such exercise. The other party eligible to hold the Option set
forth above may at any time notify the Trustee in writing and the Trustee will
notify the current Option Holder of such party's desire to exercise the Option.
If the Option Holder neither (i) exercises the Option nor (ii) surrenders its
right to exercise the Option within three (3) Business Days of its receipt of
that notice, then the Option Holder's right to exercise the Option shall lapse,
and the Trustee shall promptly notify the other party eligible to hold the
Option of its rights thereunder. If any Option Holder assigns the Option to a
third party pursuant to clause (d) below, then it shall so notify the Trustee in
writing (and shall include in such notice the relevant contact information for
such third party), and the Trustee shall promptly notify the other party
eligible to hold the Option set forth above of its rights hereunder.
Notwithstanding the foregoing paragraph, the Majority Certificateholder of
the Controlling Class or its assignee shall have the right to exercise its
Option prior to any exercise of the Option by the applicable Mortgage Loan
Seller or its assignee; provided, however, if the Option is not exercised by the
Majority Certificateholder of the Controlling Class or any assignee thereof
within three Business Days of the Option Notice, then the applicable Mortgage
Loan Seller or its assignee shall have the right to exercise its Purchase Option
prior to any exercise by the Majority Certificateholder of the Controlling Class
and the applicable Mortgage Loan Seller or its assignee may exercise such Option
at any time during the three Business Day period immediately following the
expiration
157
of such initial three-day period. Following the expiration of such three
Business Day period, the Majority Certificateholder of the Controlling Class
shall again have the exclusive right to exercise the Purchase Option.
(c) The "Option Purchase Price" shall be an amount equal to the fair
market value of the Mortgage Loan, as determined by the Special Servicer. Prior
to the Special Servicer's determination of fair market value referred to above,
the fair market value of the Mortgage Loan shall be deemed to be an amount equal
to the Purchase Price, including any Prepayment Premium or Yield Maintenance
Charge then payable upon the prepayment of the Mortgage Loan. The Special
Servicer shall determine the fair market value of the Mortgage Loan as soon as
reasonably practical upon the Mortgage Loan becoming 60 days delinquent or
delinquent in respect of its Balloon Payment (but in any event, not earlier than
75 days after the receipt by the Special Servicer of the Mortgage Loan File and
Servicing File relating to such Mortgage Loan), and the Special Servicer shall
promptly notify the Option Holder (and the Trustee and each of the other party
set forth above that could become the Option Holder) of the Option Purchase
Price. The Special Servicer is required to recalculate the fair market value of
the Mortgage Loan based upon a material change in circumstances or the receipt
of new information; provided that the Special Servicer shall be required to
recalculate the fair market value of the Mortgage Loan if the time between the
date of last determination of the fair market value of the Mortgage Loan and the
date of the exercise of the Option has exceeded 60 days. Upon any recalculation,
the Special Servicer shall be required to promptly notify in writing each Option
Holder (and the Trustee and each of the other party set forth above that could
become the Option Holder) of the revised Option Purchase Price. Any such
recalculation of the fair market value of the Mortgage Loan shall be deemed to
renew the Option in its original priority at the recalculated price with respect
to any party as to which the Option had previously expired or been waived,
unless the Option has previously been exercised by an Option Holder at a higher
Option Purchase Price. In determining fair market value, the Special Servicer
shall take into account, among other factors, the results of any Appraisal or
updated Appraisal that it, or the Master Servicer, may have obtained in
accordance with this Agreement within the prior twelve months; any views on fair
market value expressed by investors in mortgage loans comparable to the Mortgage
Loan (provided that the Special Servicer shall not be required to solicit such
views); the period and amount of any delinquency on the Mortgage Loan; whether
the Mortgage Loan, in the Special Servicer's actual knowledge and reasonable and
good faith judgment, is in default to avoid a prepayment restriction; the
physical condition of the related Mortgaged Property; the state of the local
economy; the expected recoveries from the Mortgage Loan if the Special Servicer
were to pursue a workout or foreclosure strategy instead of the Option being
exercised; and the Trust Fund's obligation to dispose of any foreclosed
Mortgaged Property as soon as practicable consistent with the objective of
maximizing proceeds for all Certificateholders.
(d) Any Option relating to a Mortgage Loan shall be assignable to a
third party by the Option Holder at its discretion at any time after its receipt
of the Option Notice, and upon such assignment such third party shall have all
of the rights granted to the Option Holder hereunder in respect of the Option.
Such assignment shall only be effective upon notice (together with a copy of the
executed assignment and assumption agreement) being delivered to the Trustee,
the Master Servicer and the Special Servicer, and none of such parties shall be
obligated to recognize any entity as an Option Holder absent such notice.
158
(e) If the Majority Certificateholder of the Controlling Class, the
applicable Mortgage Loan Seller or an Affiliate of any of them elects to
exercise the Option, the Trustee shall be required to determine whether the
Option Purchase Price constitutes a fair price for the Mortgage Loan. Upon
request of the Special Servicer to make such a determination, the Trustee will
do so within a reasonable period of time (but in no event more than 15 Business
Days). In doing so, the Trustee may rely on the most recent Appraisal or the
opinion of another expert in real estate matters retained by the Trustee at the
expense of the party exercising the Option. The Trustee may also rely on the
most recent Appraisal of the related Mortgaged Property that was prepared in
accordance with the requirements of this Agreement. If the Trustee were to
conclude that the Option Purchase Price does not constitute a fair price, then
the Special Servicer shall determine the fair market value taking into account
the objections of the Trustee hereunder.
(f) The Option shall terminate, and shall not be exercisable as set
forth in clause (b) above (or if exercised, but the purchase of the Mortgage
Loan has not yet occurred, shall terminate and be of no further force or effect)
if the Mortgage Loan is no longer delinquent as set forth above because (i) the
Mortgage Loan ceases to be a Specially Serviced Mortgage Loan, (ii) the Mortgage
Loan has been subject to a workout arrangement, (iii) the Mortgage Loan has been
foreclosed upon, or otherwise resolved (including by a full or discounted
pay-off) or (iv) the Mortgage Loan has been purchased by the applicable Mortgage
Loan Seller pursuant to Section 2.03 or by the Depositor or the Master Servicer
or otherwise pursuant to Section 9.01.
(g) Unless and until an Option Holder exercises an Option, the Special
Servicer shall continue to service and administer the Mortgage Loan in
accordance with the Servicing Standard and this Agreement and shall pursue such
other resolutions or recovery strategies including Workout or foreclosure, as is
consistent with this Agreement and the Servicing Standard.
(h) Subject to subsections (a) through (g) above, the Special Servicer
shall act on behalf of the Trust Fund and, with respect to the Xxxxxxxx Fashion
Center A/B Loan, the Trust Fund and the Xxxxxxxx Fashion Center Companion
Holders, in negotiating and taking any other action necessary or appropriate in
connection with the sale of any Mortgage Loan pursuant to this Section 3.18, and
the collection of all amounts payable in connection therewith. In connection
therewith, the Special Servicer may charge prospective offerors, and may retain,
fees that approximate the Special Servicer's actual costs in the preparation and
delivery of information pertaining to such sales or exchanging offers without
obligation to deposit such amounts into the Certificate Account. Any sale of a
Mortgage Loan shall be final and without recourse to the Trustee or the Trust
Fund (except such recourse to the Trust Fund imposed by those representations
and warranties typically given in such transactions, any prorations applied
thereto and any customary closing matters), and if such sale is consummated in
accordance with the terms of this Agreement, none of the Special Servicer, the
Master Servicer, the Depositor or the Trustee shall have any liability to any
Certificateholder or Xxxxxxxx Fashion Center Companion Holder with respect to
the purchase price therefor accepted by the Special Servicer or the Trustee.
(i) Any sale of a Mortgage Loan pursuant to this Section 3.18 shall be
for cash only (unless, as evidenced by an Opinion of Counsel, a sale for other
consideration will not cause an Adverse REMIC Event). The Option Purchase Price
for any Mortgage Loan purchased
159
under this Section 3.18 shall be deposited into the Certificate Account or, with
respect to the Xxxxxxxx Fashion Center Mortgage Loan, the Xxxxxxxx Fashion
Center Custodial Account, and the Trustee, upon receipt of an Officer's
Certificate from the Master Servicer to the effect that such deposit has been
made, shall release or cause to be released to the purchaser of the Mortgage
Loan the related Mortgage File, and shall execute and deliver such instruments
of transfer or assignment, in each case without recourse, as shall be necessary
to vest in such purchaser ownership of such Mortgage Loan (subject, in the case
of an Additional Servicing Fee Mortgage Loan, to the rights of the applicable
Designated Sub-Servicer to sub-service such Mortgage Loan and the rights of the
applicable Designated Sub-Servicer, Archon, GSMC and the Master Servicer, as
applicable, to receive or retain their applicable portion of the Additional
Servicing Fee, in each case, pursuant to the related Designated Sub-Servicer
Agreement). In connection with any such purchase, the Special Servicer and the
Master Servicer shall deliver the related Servicing File (to the extent either
has possession of such file) to such purchaser.
(j) The Xxxxxxxx Fashion Center Mortgage Loan shall not be sold
pursuant to any Option if the Chandler Fashion Center B Note Holder is a
Xxxxxxxx Fashion Center Borrower Affiliate; provided, the Xxxxxxxx Fashion
Center Mortgage Loan may be sold pursuant to an Option if, at any time following
the receipt of written notice of the Option Purchase Price thereof, the Xxxxxxxx
Fashion Center B Note Holder (or the Xxxxxxxx Fashion Center B Note Operating
Advisor on its behalf) delivers a Xxxxxxxx Fashion Center Sale Consent to the
Trustee and the Special Servicer. A "Xxxxxxxx Fashion Center Sale Consent" is an
irrevocable agreement of the Xxxxxxxx Fashion Center B Note Holder that for a
period of 30 days the Xxxxxxxx Fashion Center Mortgage Loan may be sold pursuant
to the Option at a price equal to or greater than the Option Purchase Price
specified in the notice most recently delivered to the Xxxxxxxx Fashion Center B
Note Holder prior to its delivery of a Xxxxxxxx Fashion Center Sale Consent.
(k) In the event the Xxxxxxxx Fashion Center Mortgage Loan becomes
subject to purchase pursuant to this Section 3.18, the Xxxxxxxx Fashion Center B
Note Holder and the Special Servicer, in that order of priority, shall each have
an assignable option to purchase at the Option Purchase Price the following:
(i) in the case of such a Xxxxxxxx Fashion Center B Note Holder
and the Special Servicer, the Xxxxxxxx Fashion Center Mortgage Loan from the
Trust Fund; and
(ii) in the case of the Special Servicer, the Xxxxxxxx Fashion
Center B Note.
The Option of the Xxxxxxxx Fashion Center B Note Holder shall be in
addition to the rights of the Xxxxxxxx Fashion Center B Note Holder to purchase
the related Mortgage Loan under the Xxxxxxxx Fashion Center B Note Holder
Purchase Right and, at any time at which both the Xxxxxxxx Fashion Center B Note
Holder Purchase Option and the Xxxxxxxx Fashion Center B Note Holder Purchase
Right are in effect, the Xxxxxxxx Fashion Center B Note Holder shall have the
right to elect to exercise either the Xxxxxxxx Fashion Center B Note Holder
Purchase Option or the Xxxxxxxx Fashion Center B Note Holder Purchase Right.
160
The Special Servicer and its assignee, if any, shall not have the right to
purchase the Xxxxxxxx Fashion Center Mortgage Loan unless (A) the Xxxxxxxx
Fashion Center B Note Holder (or its assignees, if any) declines to exercise the
Option at the Option Purchase Price determined by such Special Servicer or the
Trustee, if applicable, by notice in writing to the Trustee or (B) the Xxxxxxxx
Fashion Center B Note Holder (or its assignees, if any) fails to notify the
Trustee in writing within ten Business Days of receipt of notice of the Option
Purchase Price determined by such Special Servicer or the Trustee, if
applicable, of its determination to exercise the Option. The Special Servicer
and its assignee, if any, shall not have the right to purchase the Xxxxxxxx
Fashion Center Mortgage Loan or the Xxxxxxxx Fashion Center B Note, as the case
may be, unless (A) the Xxxxxxxx Fashion Center B Note Holder shall have agreed
to the sale of Xxxxxxxx Fashion Center B Note as provided in Section 3.18 and
(B)(i) the Xxxxxxxx Fashion Center B Note Holder (or its assignees, if any)
declines to exercise the Option for the Xxxxxxxx Fashion Center Mortgage Loan at
the Option Purchase Price determined by such Special Servicer or the Trustee, if
applicable, by notice in writing to the Trustee or (ii) the Xxxxxxxx Fashion
Center B Note Holder (or its assignees, if any) fails to notify the Trustee in
writing within ten Business Days of receipt of notice of the Option Purchase
Price determined by such Special Servicer (and, if lower, the Option Purchase
Price determined by the Trustee) of its determination to exercise its Option. In
the event that the Special Servicer shall exercise the Option with respect to
the Xxxxxxxx Fashion Center Mortgage Loan, such Xxxxxxxx Fashion Center Mortgage
Loan shall remain subject to the Xxxxxxxx Fashion Center B Note Holder Purchase
Right until the 90th day following the commencement of the Xxxxxxxx Fashion
Center B Note Holder Purchase Right Period.
SECTION 3.19 Sale of REO Property.
(a) The parties hereto may sell or purchase, or permit the sale or
purchase of, an REO Property only on the terms and subject to the conditions set
forth in this Section 3.19.
(b) The Special Servicer shall use reasonable efforts to solicit offers
for each REO Property on behalf of the Certificateholders (and with respect to
the Xxxxxxxx Fashion Center A/B Loan, the Certificateholders and the Xxxxxxxx
Fashion Center Companion Holders) in such manner as will be reasonably likely to
realize a fair price within the time period specified by Section 3.16(a). The
Special Servicer shall accept the first (and, if multiple bids are
contemporaneously received, highest) cash bid received from any Person that
constitutes a fair price for such REO Property. If the Special Servicer
determines, in its good faith and reasonable judgment, that it will be unable to
realize a fair price for any REO Property within the time constraints imposed by
Section 3.16(a), then the Special Servicer shall dispose of such REO Property
upon such terms and conditions as the Special Servicer shall deem necessary and
desirable to maximize the recovery thereon under the circumstances and, in
connection therewith, shall accept the highest outstanding cash bid, regardless
from whom received. The Liquidation Proceeds (net of related Liquidation
Expenses) for any REO Property purchased hereunder shall be deposited in the
Certificate Account, except that portion of any proceeds constituting Excess
Liquidation Proceeds shall be deposited in the Excess Liquidation Proceeds
Reserve Account.
(c) The Special Servicer shall give the Trustee and the Master Servicer
(and with respect to the Xxxxxxxx Fashion Center A/B Loan, the Xxxxxxxx Fashion
Center Companion
161
Holders) not less than three Business Days' prior written notice of its
intention to sell any REO Property. No Interested Person shall be obligated to
submit a bid to purchase any REO Property, and notwithstanding anything to the
contrary contained herein, neither the Trustee, in its individual capacity, nor
any of its Affiliates may bid for or purchase any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any REO Property
for purposes of Section 3.19(b) shall be determined by the Special Servicer, if
the highest bidder is a Person other than an Interested Person, and by the
Trustee, if the highest bidder is an Interested Person; provided, however, that
no bid from an Interested Person shall constitute a fair price unless (i) it is
the highest bid received and (ii) at least two other bids are received from
independent third parties. In determining whether any offer received from an
Interested Person represents a fair price for any such REO Property, the Trustee
shall be supplied with and shall rely on the most recent Appraisal or updated
Appraisal conducted in accordance with this Agreement within the preceding 12
month period or, in the absence of any such Appraisal, on a narrative appraisal
prepared by a Qualified Appraiser retained by the Special Servicer. Such
appraiser shall be selected by the Special Servicer if the Special Servicer is
not making an offer with respect to an REO Property and shall be selected by the
Master Servicer if the Special Servicer is making such an offer. The cost of any
such narrative appraisal shall be covered by, and shall be reimbursable as, a
Servicing Advance. In determining whether any such offer from a Person other
than an Interested Person constitutes a fair price for any such REO Property,
the Special Servicer shall take into account (in addition to the results of any
Appraisal or updated Appraisal that it may have obtained pursuant to this
Agreement within the prior 12 months), and in determining whether any offer from
an Interested Person constitutes a fair price for any such REO Property, any
appraiser shall be instructed to take into account, as applicable, among other
factors, the period and amount of any delinquency on the affected Mortgage Loan
(including the Xxxxxxxx Fashion Center A/B Loan), the occupancy level and
physical condition of the REO Property, the state of the local economy and the
obligation to dispose of any REO Property within the time period specified in
Section 3.16(a). The Purchase Price for any REO Property shall in all cases be
deemed a fair price.
(e) Subject to subsections (a) through (d) above, the Special Servicer
shall act on behalf of the Trust Fund (and with respect to the Xxxxxxxx Fashion
Center A/B Loan, the Trust Fund and the Xxxxxxxx Fashion Center Companion
Holders) (in negotiating and taking any other action necessary or appropriate in
connection with the sale of any REO Property, and the collection of all amounts
payable in connection therewith. In connection therewith, the Special Servicer
may charge prospective offerors, and may retain, fees that approximate the
Special Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or exchanging offers without obligation to deposit such
amounts into the Certificate Account. Any sale of any REO Property shall be
final and without recourse to the Trustee or the Trust Fund (except such
recourse to the Trust Fund imposed by those representations and warranties
typically given in such transactions, any prorations applied thereto and any
customary closing matters), and if such sale is consummated in accordance with
the terms of this Agreement, none of the Special Servicer, the Master Servicer,
the Depositor or the Trustee shall have any liability to any Certificateholder
or Xxxxxxxx Fashion Center Companion Holder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
162
(f) Any sale of any REO Property shall be for cash only (unless, as
evidenced by an Opinion of Counsel, a sale for other consideration will not
cause an Adverse REMIC Event).
(g) Notwithstanding any of the foregoing paragraphs of this Section
3.19, the Special Servicer shall not be obligated to accept the highest cash
offer if the Special Servicer determines, in its reasonable and good faith
judgment, that rejection of such offer would be in the best interests of the
Certificateholders and with respect to the Xxxxxxxx Fashion Center A/B Loan, the
Xxxxxxxx Fashion Center Companion Holders, and the Special Servicer may accept a
lower cash offer (from any Person other than itself or an Affiliate) if it
determines, in its reasonable and good faith judgment, that acceptance of such
offer would be in the best interests of the Certificateholders and, with respect
to the Xxxxxxxx Fashion Center A/B Loan, in the best interests of the
Certificateholders and the Xxxxxxxx Fashion Center Companion Holders (for
example, if the prospective buyer making the lower offer is more likely to
perform its obligations or the terms offered by the prospective buyer making the
lower offer are more favorable).
SECTION 3.20 Additional Obligations of the Master Servicer and the Special
Servicer.
(a) In connection with any Adjustable Rate Mortgage Loan (and, if and
to the extent applicable, any successor REO Loan), the Master Servicer shall
calculate adjustments in the Mortgage Rate and the Monthly Payment and shall
notify the Mortgagor of such adjustments, all in accordance with the Mortgage
Note and applicable law. In the event the Index for any Adjustable Rate Mortgage
Loan (or successor REO Loan) is not published or is otherwise unavailable, the
Master Servicer shall select a comparable alternative index with respect to such
Adjustable Rate Mortgage Loan (or successor REO Loan) over which it has no
direct control, which is readily verifiable and which is acceptable under the
terms of the related Mortgage Note.
(b) The Master Servicer and the Special Servicer, as applicable, shall
each deliver to the other and to the Trustee (for inclusion in the Mortgage
File) copies of all Appraisals, environmental reports and engineering reports
(or, in each case, updates thereof) obtained with respect to any Mortgaged
Property or REO Property.
(c) Subject to the following paragraph, the Master Servicer shall have
the obligation to make any Servicing Advance that it is requested by the Special
Servicer to make within ten days of the Master Servicer's receipt of such
request. The Special Servicer shall be relieved of any obligations with respect
to an Advance that it requests the Master Servicer to make (regardless of
whether or not the Master Servicer shall make such Advance). The Master Servicer
shall be entitled to reimbursement for any Servicing Advance made by it at the
direction of the Special Servicer, together with Advance Interest thereon, at
the same time, in the same manner and to the same extent as the Master Servicer
is entitled with respect to any other Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.20(c), the
Master Servicer shall not be required to make at the Special Servicer's
direction any Servicing Advance, if the Master Servicer determines in its
reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to make either (i) although not
163
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
or would be, if made, a Nonrecoverable Servicing Advance, or (ii) the making of
such advance was or would be in violation of the Servicing Standard or the terms
and conditions of this Agreement. The Master Servicer shall notify the Special
Servicer in writing of such determination. Such notice shall not obligate the
Special Servicer to make any such proposed Servicing Advance.
(d) Upon the earliest of (i) the date on which any Mortgage Loan or
Xxxxxxxx Fashion Center Companion Loan (other than the Oakbrook Center Mortgage
Loan) becomes a Modified Mortgage Loan, (ii) the 90th day following the
occurrence of any uncured delinquency in Monthly Payments with respect to any
Mortgage Loan (other than the Oakbrook Center Mortgage Loan) (or the 150th day
with respect to a Balloon Payment for which the Mortgagor has produced a written
refinancing commitment pursuant to clause (1) of the definition of "Specially
Serviced Mortgage Loan"), (iii) the date on which a receiver is appointed and
continues in such capacity in respect of the Mortgaged Property securing any
Mortgage Loan (other than the Oakbrook Center Mortgage Loan), (iv) the 60th day
following any bankruptcy or similar proceedings involving a Mortgagor and (v)
the date on which the Mortgaged Property securing any Mortgage Loan (including
the Xxxxxxxx Fashion Center A/B Loan but excluding the Oakbrook Center Mortgage
Loan) becomes an REO Property (each such Mortgage Loan (including the Xxxxxxxx
Fashion Center A/B Loan but excluding the Oakbrook Center Mortgage Loan) and any
related REO Loan, a "Required Appraisal Loan"), the Special Servicer, shall
request and, within 30 days of the occurrence of such event (or such longer
period as the Special Servicer is (as certified thereby to the Trustee in
writing) diligently and in good faith proceeding to obtain such) obtain an
Appraisal of the related Mortgaged Property; provided, however, that such
Appraisal shall not be required if (A) an Appraisal of such Mortgaged Property
had previously been obtained within the prior twelve months, unless the Special
Servicer determines that such previously obtained Appraisal is materially
inaccurate or (B) the Mortgage Loan is secured by a guaranty and/or surety bond
that is rated at least "BBB-" (or its equivalent) by a nationally recognized
statistical rating organization, a debt service reserve fund or a letter of
credit, that is available to be drawn by the Master Servicer, the Special
Servicer or the Trustee and is sufficient to repay the Mortgage Loan in full, in
each case, except to the extent that the Special Servicer, in accordance with
the Servicing Standard, determines that obtaining an Appraisal is in the best
interests of the Certificateholders and with respect to the Xxxxxxxx Fashion
Center A/B Loan, the Xxxxxxxx Fashion Center Companion Holders. The cost of any
such Appraisal shall be covered by, and reimbursable as, a Servicing Advance. In
addition, the Special Servicer shall obtain an Appraisal of the Xxxxxxxx Fashion
Center Mortgaged Property at the request of a Xxxxxxxx Fashion Center Companion
Holder, at the expense of such Xxxxxxxx Fashion Center Companion Holder.
With respect to each Required Appraisal Loan (unless such loan has become a
Corrected Mortgage Loan and no other Servicing Transfer Event, or other event
that would cause the loan to be a Required Appraisal Loan, has occurred), the
Special Servicer shall, within 30 days of each anniversary of such loan's
becoming a Required Appraisal Loan, order an update of the prior Appraisal (the
cost of which will be covered by, and reimbursable as, a Servicing Advance by
the Master Servicer). Based upon such Appraisal, the Special Servicer shall
determine and report to the Trustee the Appraisal Reduction Amount, if any, with
respect to such loan. The Special Servicer shall deliver a copy of any such
Appraisal to the Master Servicer and, with
164
respect to any such Appraisal related to the Xxxxxxxx Fashion Center Mortgage
Loan, to each Xxxxxxxx Fashion Center Companion Holder.
Notwithstanding the foregoing, if a Required Appraisal Loan has a principal
balance of less than $2,000,000, a desktop estimation of value may be
substituted for any Appraisal otherwise required pursuant to this Section
3.20(d); provided, that the Special Servicer may, with the consent of the
Majority Certificateholder of the Controlling Class, order an Appraisal at the
expense of the Trust Fund.
(e) The Master Servicer shall deliver to the Trustee for deposit in the
Distribution Account on each Master Servicer Remittance Date, without any right
of reimbursement therefor, an amount equal to the aggregate of all Balloon
Payment Interest Shortfalls incurred in connection with Balloon Payments
received in respect of the Mortgage Loans (other than the Oakbrook Center
Mortgage Loan, if applicable) during the most recently ended Collection Period.
(f) The Master Servicer shall deliver to the Trustee for deposit in the
Distribution Account on each Master Servicer Remittance Date, without any right
of reimbursement therefor, an amount equal to the lesser of (i) the aggregate of
all Prepayment Interest Shortfalls incurred in connection with Principal
Prepayments received in respect of the Mortgage Loans (other than Late Due Date
Mortgage Loans) during the most recently ended Collection Period, and (ii) the
aggregate Master Servicing Fees received by the Master Servicer during such
Collection Period.
(g) With respect to all ARD Loans, the Master Servicer shall apply all
Monthly Payments and any other sums due, in accordance with the terms of the
related ARD Loan.
(h) Subject to Section 3.21(a)(iv), with respect to all ARD Loans, the
Master Servicer and the Special Servicer shall not take any enforcement action
with respect to the payment of Excess Interest or principal in excess of the
principal component of the constant Monthly Payment, other than request for
collection, until the maturity date of the related Mortgage Loan. The foregoing
shall not limit the Master Servicer's and Special Servicer's obligation to
establish or direct the related Mortgagor to establish a Lock-Box Account
pursuant to Section 3.25.
(i) The Master Servicer shall be entitled to waive the application of
any provision in any ARD Loan that requires that the property manager of the
related Mortgaged Property be discharged if such ARD Loan is not paid in full on
its Anticipated Repayment Date.
(j) With respect to each Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan (other than the Oakbrook Center Mortgage Loan, if applicable)
that upon the occurrence of certain events permits the Master Servicer to apply
the proceeds of the release of any earnout reserve to the exercise of a
Defeasance Option, the Master Servicer shall only exercise such Defeasance
Option in accordance with Section 3.08 of this Agreement.
(k) To the extent consistent with the terms of the applicable Mortgage
Loan or Xxxxxxxx Fashion Center Companion Loan (other than the Oakbrook Center
Mortgage Loan), the
165
Master Servicer shall exercise its option to apply any proceeds of the release
of the related earnout reserve to prepayment or defeasance, as applicable, of
such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan.
(l) Upon the application of the proceeds of the release of any earnout
reserve to the prepayment of the related Mortgage Loan (including the Xxxxxxxx
Fashion Center A/B Loan but excluding the Oakbrook Center Mortgage Loan), the
Master Servicer shall calculate, based upon the Maturity Date, Mortgage Rate and
remaining outstanding principal balance of such Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan), a revised schedule upon which the remaining
amount of principal and interest due upon such Mortgage Loan (including the
Xxxxxxxx Fashion Center A/B Loan) shall be amortized until its Maturity Date.
The Master Servicer shall deliver a copy of such revised amortization schedule
to the related Mortgagor with an instruction to thereafter make Monthly Payments
in accordance with the revised schedule.
(m) The Master Servicer shall provide written direction to each lessor
under a Ground Lease requesting that upon any default by the lessee, notice
thereof be provided to the Master Servicer to the extent required by the Ground
Lease.
(n) The Master Servicer and the Special Servicer shall take all such
action as may be required to comply with the terms and conditions precedent to
payment of claims under the Environmental Policy and in order to maintain, in
full force and effect, such policy. Neither the Master Servicer nor the Special
Servicer shall agree to amend the Environmental Policy unless it shall have
obtained Rating Agency Confirmation with respect to such amendment. In addition,
the Master Servicer shall notify each Rating Agency of any claim under the
Environmental Policy.
(o) With respect to any fees payable to a Rating Agency in connection
with an assumption, the Master Servicer or Special Servicer, as applicable,
shall not approve any assumption without requiring the Mortgagor to pay any fees
associated with any Rating Agency Confirmation, to the extent permitted or
required under the applicable Mortgage Loan documents and otherwise consistent
with the Servicing Standard.
(p) The Master Servicer shall provide to the Special Servicer and the
Majority Certificateholder of the Controlling Class (i) on or before the
Distribution Date next following the renewal of any all-risk policy for any
Mortgaged Property that secures a Mortgage Loan (other than the Oakbrook Center
Mortgage Loan) having a Cut-off Date Principal Balance greater than or equal to
$17,500,000, a copy of such renewal policy; (ii) on or before the Distribution
Date in May of each year, commencing with the Distribution Date in May 2004, an
updated Insurance Summary Report in the form attached as Exhibit J; and (iii) on
or before May 2004, a First Anniversary Reserve Report.
(q) With respect to the selection of a replacement property manager for
the Mortgage Loan identified as the "ARC Portfolio" on the Mortgage Loan
Schedule, the Master Servicer shall give 10 day's prior notice to Standard &
Poor's before a replacement property manager is put in place.
SECTION 3.21 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer and the Special Servicer each 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 Mortgagor
on or any guarantor of any Mortgage Loan (including the
166
Xxxxxxxx Fashion Center A/B Loan) it is required to service and administer
hereunder, without the consent of the Trustee or any Certificateholder, subject,
however, to each of the following limitations, conditions and restrictions:
(i) other than as provided in Sections 3.02 and 3.08, but subject
to Section 3.21(i), the Master Servicer (in such capacity) shall not agree to
any modification, waiver or amendment of any term of, or take any of the other
acts referenced in this Section 3.21(a) with respect to, any Mortgage Loan or
Xxxxxxxx Fashion Center Companion Loan that would (A) affect the amount or
timing of any related payment of principal, interest or other amount payable
thereunder, (B) affect the obligation of the related Mortgagor to pay any
Prepayment Premium or permit a Principal Prepayment during any period when the
terms of the Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan prohibit
the making of Principal Prepayments or, (C) in the Master Servicer's good faith
and reasonable judgment, materially impair the security for such Mortgage Loan
(including the Xxxxxxxx Fashion Center A/B Loan) or reduce the likelihood of
timely payment of amounts due thereon; provided, the Master Servicer, with the
consent of the Majority Certificateholder of the Controlling Class, shall have
the authority to extend the due date of a Balloon Payment for up to one year
(but for no more than two (2) such one-year extensions); provided, further, the
Special Servicer (in such capacity) may agree to any modification, waiver or
amendment of any term of, or take any of the other acts referenced in this
Section 3.21(a) with respect to, a Specially Serviced Mortgage Loan that would
have any such effect, but only if, in the Special Servicer's reasonable and good
faith judgment, a material default on such Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan has occurred or a default in respect of payment on such
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan is reasonably
foreseeable, and such modification, waiver, amendment or other action is
reasonably likely to produce a greater recovery to Certificateholders and, with
respect to the Xxxxxxxx Fashion Center A/B Loan, the Certificateholders and the
Xxxxxxxx Fashion Center Companion Holders on a present value basis, than would
liquidation;
(ii) any such action taken by the Special Servicer shall be
accompanied by an Officer's Certificate to such effect and to which is attached
the present value calculation which establishes the basis for such
determination, a copy of which shall be delivered to the Trustee for delivery to
the Rating Agencies;
(iii) neither the Master Servicer nor the Special Servicer may
extend the Stated Maturity Date of any Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan beyond the date that is two years prior to the Rated Final
Distribution Date and, in the case of any Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan that is secured solely by a Ground Lease, the Master
Servicer or the Special Servicer, as the case may be, shall give due
consideration to the remaining term of such Ground Lease prior to extending the
Stated Maturity Date of the Mortgage Loan or Xxxxxxxx Fashion Center Companion
Loan;
(iv) neither the Master Servicer nor the Special Servicer shall
make or permit any modification, waiver or amendment of any term of, or take any
of the other acts referenced in this Section 3.21(a) or Section 3.20(h) with
respect to, any Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan)
that would (A) cause REMIC I, REMIC II or REMIC III (or either of the
Countryside Village Apartments REMIC and the Garden Lakes
167
Shopping Center REMIC) to fail to qualify as a REMIC under the Code or (subject
to Section 10.01(f)) result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day of any such REMIC under
the REMIC Provisions or (B) cause any Mortgage Loan (including the Xxxxxxxx
Fashion Center A/B Loan) to cease to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (neither the Master Servicer nor the
Special Servicer shall be liable for decisions made under this subsection which
were made in good faith and, unless it would constitute bad faith or negligence
to do so, each of the Master Servicer and the Special Servicer may rely on
opinions of counsel in making such decisions);
(v) neither the Master Servicer nor the Special Servicer shall
permit any Mortgagor to add or substitute any collateral for an outstanding
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan, which collateral
constitutes real property, unless the Master Servicer or the Special Servicer,
as the case may be, shall have first determined, in its reasonable and good
faith judgment, based upon an Environmental Assessment performed within the
twelve months prior to such determination (and such additional environmental
testing as the Master Servicer or Special Servicer, as the case may be, deems
necessary and appropriate) prepared by an Independent Person who regularly
conducts Environmental Assessments (and such additional environmental testing),
at the expense of the Mortgagor, that such additional or substitute collateral
is in compliance with applicable environmental laws and regulations and that
there are no circumstances or conditions present with respect to such new
collateral relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental laws
and/or regulations;
(vi) neither the Master Servicer nor the Special Servicer shall,
with respect to a Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan, other
than a Specially Serviced Mortgage Loan release or substitute any collateral
securing an outstanding Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan
except as provided in Sections 3.08 and 3.09(d) and except in the case of a
release where (A) the use of the collateral to be released will not, in the
Master Servicer's or Special Servicer's, as the case may be, good faith and
reasonable judgment, materially and adversely affect the Net Operating Income
being generated by or the use of the related Mortgaged Property, (B) there is a
corresponding principal paydown of such Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan in an amount at least equal to, or a delivery of substitute
collateral with an Appraised Value at least equal to, the Appraised Value of the
collateral to be released, (C) the remaining Mortgaged Property and any
substitute collateral is, in the Master Servicer's or Special Servicer's, as the
case may be, good faith and reasonable judgment, adequate security for the
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan and (D) the Master
Servicer or Special Servicer, as applicable, has received Rating Agency
Confirmation with respect to such release or substitution; provided, that (x)
the limitations, conditions and restrictions set forth in clauses (i) through
(vi) above shall not apply to any modification of any term of any Mortgage Loan
or Xxxxxxxx Fashion Center Companion Loan or any other acts referenced in this
Section 3.21(a) that is required under the terms of such Mortgage Loan in effect
on the Closing Date and that is solely within the control of the related
Mortgagor, and (y) notwithstanding clauses (i) through (vi) above, neither the
Master Servicer nor the Special Servicer shall be required to oppose the
confirmation of a plan in any bankruptcy or similar proceeding involving a
Mortgagor if in their reasonable and good faith judgment such opposition would
not ultimately prevent the confirmation of such plan or one substantially
168
similar. Neither the Master Servicer nor the Special Servicer may extend the
Maturity Date on any Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan
except pursuant to this Section 3.21(a) or as otherwise required under the
related loan documents;
(vii) the Master Servicer shall not consent to any assumption of
a Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan) or release of
any earnout reserve amounts with respect to any Specified Earnout Reserve Loan
unless the Special Servicer shall have approved such assumption or release in
writing; and
(viii) the Master Servicer shall not consent to (A) any waiver
related to the conditions for release or reduction of reserves, (B) any waivers
relating to the establishment of reserves, (C) waivers of any requirements
regarding additional collateral or (D) waivers of any lock-box requirements,
unless the Special Servicer has approved such waiver in writing.
(b) Neither the Master Servicer nor the Special Servicer shall have any
liability to the Trust Fund, the Certificateholders or any other Person if its
analysis and determination that the modification, waiver, amendment or other
action contemplated by Section 3.21(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Master Servicer or Special
Servicer and the Master Servicer or Special Servicer was not negligent in
ascertaining the pertinent facts. The Master Servicer shall not have any
liability to the Trust Fund, the Certificateholders or any other Person with
respect to the Special Servicer's approval, disapproval or delay in processing
any assumption, earnout release or reserve release as provided in Section
3.21(a)(vii) or (viii).
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan, notwithstanding that
the terms of such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan or
such modification, waiver or amendment so permit.
(d) The Master Servicer and, with respect to a Specially Serviced
Mortgage Loan, the Special Servicer each may, as a condition to its granting any
request by a Mortgagor for consent, modification, waiver or indulgence or any
other matter or thing, the granting of which is within the Master Servicer's or
the Special Servicer's discretion pursuant to the terms of the instruments
evidencing or securing the related Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan and is permitted by the terms of this Agreement, require that
such Mortgagor pay to it, as additional servicing compensation, a reasonable or
customary fee (not to exceed 1.0% of the unpaid principal balance of the related
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan) for the additional
services performed in connection with such request, together with any related
costs and expenses incurred by it.
(e) Except for waivers of Penalty Charges and notice periods, all
material modifications, waivers and amendments of the Mortgage Loans or Xxxxxxxx
Fashion Center Companion Loans entered into pursuant to this Section 3.21 shall
be in writing.
169
(f) Each of the Master Servicer and the Special Servicer shall notify
the Trustee and such other party, in writing, of any modification, waiver (other
than a waiver of Penalty Charges) or amendment of any term of any Mortgage Loan
or Xxxxxxxx Fashion Center Companion Loan (other than the Oakbrook Center
Mortgage Loan, unless notified of any such amendment by the 2003-TOP9 Master
Servicer or the 2003-TOP9 Special Servicer) and the date thereof, and shall
deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly (and in any event within ten
Business Days) following the execution thereof.
(g) The Master Servicer or Special Servicer, as applicable, shall not
waive the payment of any fees by a Mortgagor that may be due or partially due to
the other party without such other party's consent.
(h) The failure of the Special Servicer to respond to the Master
Servicer within ten Business Days of the Master Servicer's written request (such
request to include sufficient information regarding the applicable Mortgage Loan
(including the Xxxxxxxx Fashion Center A/B Loan) and a written recommendation
and rationale therefor with respect to such request) for any approval or consent
required hereunder, shall be deemed to constitute a grant of such request for
approval or consent.
(i) Notwithstanding the foregoing provisions of this Section 3.21, but
subject to Section 3.28, (i) any modifications, waivers or amendments to the
Oakbrook Center Mortgage Loan shall be subject to the conditions set forth in
the 2003-TOP9 Pooling and Servicing Agreement and (ii) the Master Servicer shall
not agree to any material modification, material waiver or material amendment of
any term of any other Mortgage Loan unless (a) the Master Servicer shall have
notified the Special Servicer of the request for the material modification and
provided its written recommendation, analysis and any other related documents in
the possession or control of the Master Servicer reasonably requested by the
Special Servicer to the Special Servicer, (b) the Special Servicer shall have
approved such material modification, notified the Majority Certificateholder of
the Controlling Class of the request for such approval and of the Master
Servicer's and its own approval of such material modification and shall have
submitted to the Majority Certificateholder of the Controlling Class each of the
documents submitted to the Special Servicer by the Master Servicer and (c) the
Majority Certificateholder of the Controlling Class shall have also approved
such material modification; provided, however, that the Special Servicer shall
advise the Majority Certificateholder of the Controlling Class of its approval
(if any) of such material modification promptly upon (but in no case to exceed
ten Business Days) its receipt of such notice, recommendation, analysis and any
reasonably requested documents from the Master Servicer; provided, further, that
if the Majority Certificateholder of the Controlling Class does not reject such
recommendation within five Business Days of its receipt of the Special
Servicer's recommendation and any additional documents or information that the
Majority Certificateholder of the Controlling Class may reasonably request, then
the material modification shall be deemed approved. Unless required by the
related Mortgage Loan documents or the Servicing Standard, neither the Master
Servicer nor Special Servicer shall approve such material modification unless
the Mortgagor shall agree to pay all fees and costs associated with such
material modification (unless such condition shall have been waived by the
Majority Certificateholder of the Controlling Class).
170
(j) Permitted modifications and other similar actions with respect to
the Mortgage Loan of the Countryside Village Apartments REMIC and the Garden
Lakes Shopping Center REMIC as described in this Section 3.21 shall refer to the
Mortgage Loan held by such REMIC and not the Regular Interest issued by such
REMIC.
SECTION 3.22 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan (other
than the Oakbrook Center Mortgage Loan) and if the Master Servicer is not also
the Special Servicer, the Master Servicer shall promptly give notice thereof,
and deliver the related Servicing File, to the Special Servicer and shall use
reasonable efforts to provide the Special Servicer with all information,
documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan and reasonably requested
by the Special Servicer to enable it to assume its functions hereunder with
respect thereto without acting through a Sub-Servicer. The Master Servicer shall
use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event. The
Special Servicer may, as to any delinquent Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan (other than the Oakbrook Center Mortgage Loan), prior to
the occurrence of a Servicing Transfer Event with respect thereto, request and
obtain the foregoing documents and information.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall promptly give notice thereof, and return
the related Servicing File, to the Master Servicer and upon giving such notice,
and returning such Servicing File, to the Master Servicer, the Special
Servicer's obligation to service such Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan, and the Special Servicer's right to receive the Special
Servicing Fee with respect to such Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan, shall terminate, and the obligations of the Master Servicer to
service and administer such Mortgage Loan or Xxxxxxxx Fashion Center Companion
Loan in accordance with this Agreement shall resume.
Notwithstanding other provisions in this Agreement to the contrary, the
Master Servicer shall remain responsible for the billing and collection,
accounting, data collection, reporting and other basic Master Servicer
administrative functions with respect to Specially Serviced Mortgage Loans,
provided, that the Special Servicer shall establish procedures for the Master
Servicer as to
171
the application of receipts and tendered payments and shall have the exclusive
responsibility for and authority over all contacts with and notices to
Mortgagors and similar matters relating to each Specially Serviced Mortgage Loan
and the related Mortgaged Property.
The Master Servicer, upon the occurrence of a Servicing Transfer Event with
respect to the Xxxxxxxx Fashion Center A/B Loan, and the Special Servicer upon a
determination that such Specially Serviced Mortgage Loan has become a Corrected
Mortgage Loan, shall promptly give written notice thereof to the Xxxxxxxx
Fashion Center Companion Holders.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (with a
copy of each such original to the Master Servicer), and copies of any additional
related Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan information,
including correspondence with the related Mortgagor.
(c) Notwithstanding anything in this Agreement to the contrary, in the
event that the Master Servicer and the Special Servicer are the same Person, all
notices, certificates, information and consents required to be given by the
Master Servicer to the Special Servicer or vice versa shall be deemed to be
given without the necessity of any action on such Person's part.
SECTION 3.23 Sub-Servicing Agreements.
(a) The Master Servicer may enter into Sub-Servicing Agreements for the
servicing and administration of all or a part of the Mortgage Loans or Xxxxxxxx
Fashion Center Companion Loans (other than the Oakbrook Center Mortgage Loan)
for which it is responsible hereunder, provided, that in each case, the
Sub-Servicing Agreement: (i) is not inconsistent with this Agreement and shall
provide that the Sub-Servicer will maintain errors and omissions insurance and
fidelity bond coverage as required of the Master Servicer under Section 3.07
hereof; (ii) provides that if the Master Servicer shall for any reason no longer
be the Master Servicer hereunder (including, without limitation, by reason of an
Event of Default or their termination hereunder), the Trustee, its designee or
any successor Master Servicer may thereupon assume all of the rights and, except
to the extent they arose prior to the date of assumption, obligations of the
Master Servicer, under such agreement; (iii) expressly or effectively provides
that (if the Master Servicer and the Special Servicer are not the same Person)
such agreement shall terminate with respect to any Mortgage Loan serviced
thereunder at the time such Mortgage Loan becomes a Specially Serviced Mortgage
Loan (provided that, if any Additional Servicing Fee Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the applicable Designated Sub-Servicer,
Archon, GSMC and the Master Servicer, as the case may be, shall be entitled to
continue to receive or retain their applicable portion of the Additional
Servicing Fee with respect to such Mortgage Loan pursuant to the related
Designated Sub-Servicer Agreement); (iv) requires that the Master Servicer
consent to any modification to the terms of a Mortgage Loan or Xxxxxxxx Fashion
Center Companion Loan pursuant to Section 3.21; and (v) does not permit the
Sub-Servicer any direct rights of indemnification that may be satisfied out of
assets of the Trust Fund. Termination penalties or fees incurred under any such
Sub-Servicing Agreement shall not be an obligation of, or expense chargeable to,
the Certificateholders or the Trust Fund. References in this Agreement to
actions taken or to be taken by the Master Servicer include actions taken or to
be taken by a Sub-Servicer on behalf of
172
the Master Servicer; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer hereunder to make
Servicing Advances and Delinquency Advances shall be deemed to have been
advanced by the Master Servicer, out of its own funds and, accordingly, such
Advances shall be recoverable by such Sub-Servicer in the same manner and out of
the same funds as if such Sub-Servicer were the Master Servicer, and, for so
long as they are outstanding, such Advances shall accrue interest in accordance
with Section 3.11(f) or Section 4.03(d), as applicable, such interest to be
allocable between the Master Servicer and such Sub-Servicer as they may agree.
For purposes of this Agreement, the Master Servicer shall be deemed to have
received any payment when the Sub-Servicer receives such payment.
(b) Each Sub-Servicer shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Master Servicer,
for the benefit of the Trustee and the Certificateholders and, with respect to
the Xxxxxxxx Fashion Center Mortgage Loan, the Xxxxxxxx Fashion Center Companion
Holders, shall (at no expense to the Trustee, the Certificateholders, the
Xxxxxxxx Fashion Center Companion Holders or the Trust Fund) monitor the
performance and enforce the obligations of each Sub-Servicer retained by it
under the related Sub-Servicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements in accordance with their respective terms and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time by the Master Servicer in accordance with the Servicing
Standard.
(d) In the event the Trustee, its designee or any successor Master
Servicer assumes the rights and obligations of the Master Servicer under any
Sub-Servicing Agreement, the Master Servicer at its expense shall, upon request
of the Trustee, deliver to the assuming party all documents and records relating
to such Sub-Servicing Agreement and the Mortgage Loans then being serviced
thereunder and an accounting of amounts collected and held on behalf of it
thereunder, and otherwise use reasonable efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
shall remain obligated and liable to the Trustee, the Certificateholders and,
with respect to the Xxxxxxxx Fashion Center Mortgage Loan, the Xxxxxxxx Fashion
Center Companion Holders for the servicing and administration of the Mortgage
Loans in accordance with the provisions of this Agreement to the same extent and
under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans or Xxxxxxxx Fashion Center Companion Loans for
which it is responsible.
SECTION 3.24 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.
(a) Subject to Sections 3.28(c) and 6.06, the Majority
Certificateholder of the Controlling Class, may at any time and from time to
time replace any existing Special Servicer
173
or any Special Servicer that has resigned or otherwise ceased to serve as
Special Servicer, including pursuant to Section 7.01. Such Holders shall so
designate a Person to so serve by the delivery to the Trustee of a written
notice stating such designation, subject to Rating Agency Confirmation. The
Trustee shall, promptly after receiving any such notice, so notify the Rating
Agencies, the Master Servicer and the Special Servicer. The designated Person
shall become the Special Servicer as of the date the Trustee shall have
received: (i) written confirmation from the Rating Agencies stating that if the
designated Person were to serve as Special Servicer hereunder, none of the
then-current ratings of the outstanding Classes of the Certificates or, if
applicable, Xxxxxxxx Fashion Center Companion Loan Securities would be qualified
(including by placement on "negative credit watch"), downgraded or withdrawn;
(ii) a written acceptance of all obligations of the Special Servicer under this
Agreement, executed by the designated Person; and (iii) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer or the
Holders that made the designation) to the effect that the designation of such
Person to serve as Special Servicer is in compliance with this Section 3.24 and
all other applicable provisions of this Agreement, that upon the execution and
delivery of the written acceptance referred to in the immediately preceding
clause (ii), the designated Person shall be bound by the terms of this Agreement
and that this Agreement shall be enforceable against the designated Person in
accordance with its terms. The existing Special Servicer shall be deemed to have
resigned simultaneously with such designated Person's becoming the Special
Servicer hereunder; provided, however, that (i) the resigning Special Servicer
shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the effective date of such resignation, and
(ii) it and its directors, officers, employees and agents shall continue to be
entitled to the benefits of Section 6.03, notwithstanding any such resignation.
Such resigning Special Servicer shall cooperate with the Trustee, the Master
Servicer and the replacement Special Servicer in effecting the termination of
the resigning Special Servicer's responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
replacement Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been deposited in the REO Account or
delivered by the Special Servicer to the Master Servicer or that are thereafter
received with respect to Specially Serviced Mortgage Loans and REO Properties.
The Majority Certificateholder of the Controlling Class shall be responsible for
paying any costs associated with such replacement, including the reasonable
costs of any servicing transfer other than in the case of a replacement due to
the Special Servicer being terminated for cause or as a result of an assignment
pursuant to Section 6.02(c).
(b) The Majority Certificateholder of the Controlling Class will have
no liability to the Trust or the Certificateholders for any action taken, or for
refraining from the taking of any action, in good faith pursuant to this
Agreement, or for errors in judgment. Each Holder and Certificate Owner
acknowledges and agrees, by its acceptance of its Certificates or an interest
therein, that the Majority Certificateholder of the Controlling Class may have
special relationships and interests that conflict with those of Holders and
Certificate Owners of one or more Classes of Certificates, that the Majority
Certificateholder of the Controlling Class may act solely in the interests of
the Holders and Certificate Owners of the Controlling Class, that the Majority
Certificateholder of the Controlling Class does not have any duties to the
Holders and Certificate Owners of any Class of Certificates other than the
Controlling Class, that the Majority Certificateholder of the Controlling Class
may take actions that favor interests of the Holders and Certificate Owners of
the Controlling Class over the interests of the Holders and Certificate
174
Owners of one or more other Classes of Certificates, and that the Majority
Certificateholder of the Controlling Class shall have no liability whatsoever
for having so acted, and no Certificateholder may take any action whatsoever
against the Majority Certificateholder of the Controlling Class or any director,
officer, employee, agent or principal thereof for having so acted.
(c) Notwithstanding the foregoing, if the Controlling Class consists of
Book-Entry Certificates, then the rights of the Holders of the Controlling Class
set forth above in this Section 3.24 may be exercised directly by the relevant
Certificate Owners; provided, that the identity of such Certificate Owners has
been confirmed to the Trustee to its reasonable satisfaction.
(d) The Majority Certificateholder of the Controlling Class shall be
provided access on the website of the Master Servicer or Trustee, as applicable,
to all reports and notices required to be submitted to the Rating Agencies by
the terms hereof by any of the Trustee or the Master Servicer (or in lieu of
providing such access the Master Servicer or Trustee, as applicable, may provide
copies (including electronic copies) of such reports and notices directly to the
Majority Certificateholder of the Controlling Class). The Special Servicer shall
provide copies of any reports and notices it is required to send to the Majority
Certificateholder of the Controlling Class directly to the Majority
Certificateholder of the Controlling Class.
(e) Each of the Master Servicer and Special Servicer, as appropriate,
shall, without charge, make a knowledgeable Servicing Officer available to
answer questions from the Majority Certificateholder of the Controlling Class
regarding, on no more often than a monthly basis, during regular business hours
at such time and for such duration as the Master Servicer, the Special Servicer
and the Majority Certificateholder of the Controlling Class shall reasonably
agree (in each case except with respect to the Oakbrook Center Mortgage Loan,
but subject to subsection (h) below), the performance of any Mortgage Loan that
is delinquent, Specially Serviced Mortgage Loans, Mortgage Loans on the CMSA
Servicer Watch List or Mortgage Loans otherwise reasonably identified as
exhibiting deteriorating performance. The Majority Certificateholder of the
Controlling Class agrees to identify for the Master Servicer and the Special
Servicer in advance (but at least two Business Days prior to the related monthly
conference) the Mortgage Loans it intends to discuss. As a condition to such
disclosure, the Majority Certificateholder of the Controlling Class shall
execute a confidentiality agreement substantially in the form attached hereto as
Exhibit H-2 and an Investor Certification.
(f) Subject to Sections 3.28(c), the Majority Certificateholder of the
Controlling Class shall be entitled to advise the Special Servicer with respect
to the following actions of the Special Servicer, and notwithstanding anything
herein to the contrary except as necessary or advisable to avoid an Adverse
REMIC Event and except as set forth in, and in any event subject to, Section
3.24(g), the Special Servicer will not be permitted to take any of the following
actions with respect to the Mortgage Loans or the Mortgaged Properties related
thereto as to which the Majority Certificateholder of the Controlling Class has
objected in writing within five Business Days of being notified thereof and/or
receipt of all reasonably requested documents in the Special Servicer's
possession (provided that if such written objection has not been received by the
Special Servicer within such five Business Day period, then the Majority
Certificateholder of the Controlling Class's approval will be deemed to have
been given):
175
(i) any actual or proposed foreclosure upon or comparable
conversion (which may include acquisitions of an REO Property) of the ownership
of properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default;
(ii) any modification or waiver of any term of the related
Mortgage Loan documents of a Mortgage Loan that relates to the Maturity Date,
the Mortgage Rate, the Stated Principal Balance, amortization term or payment
frequency thereof or any provision requiring the payment of a Prepayment
Premium, other than a modification consisting of the extension of the maturity
date of a Mortgage Loan for one year or less;
(iii) any proposed or actual sale of an REO Property (other than
in connection with the termination of the Trust Fund or pursuant to Section
3.18);
(iv) any determination to bring an REO Property into compliance
with applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a
Mortgage Loan unless required by the underlying Mortgage Loan documents;
(vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance"
clause;
(vii) any release of any performance or "earn-out" reserves,
escrows or letters of credit; and
(viii) any acceptance of an assumption agreement releasing a
Mortgagor from liability under a Mortgage Loan.
(g) Notwithstanding anything contained in this Agreement to the
contrary, no advice, direction or objection from or by the Majority
Certificateholder of the Controlling Class, as contemplated by this Agreement
may (and the Special Servicer and the Master Servicer shall ignore and act
without regard to any such advice, direction or objection that the Special
Servicer or the Master Servicer, as applicable, has determined, in its
reasonable, good faith judgment, would) (A) require or cause the Master Servicer
or the Special Servicer, as applicable, to violate the terms of any Mortgage
Loan then serviced by it, applicable law or any provision of this Agreement,
including the Master Servicer's obligation or the Special Servicer's obligation
to act in accordance with the Servicing Standard and to maintain the REMIC
status of REMIC I, REMIC II or REMIC III or (B) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (C) expose the Master Servicer, the Special Servicer, the
Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee or their
officers, directors, employees or agents to any claim, suit or liability, or (D)
materially expand the scope of the Special Servicer's or the Master Servicer's
responsibilities under this Agreement.
(h) No later than the Business Day following the Special Servicer's
receipt of any written proposal that it receives under the Second Oakbrook
Center Letter Agreement, the Special Servicer shall forward such proposal to the
Majority Certificateholder of the Controlling
176
Class. Upon receipt of such proposal, the Majority Certificateholder of the
Controlling Class will have the right to consult with the 2003-TOP9 Special
Servicer with respect to such proposal as set forth in the Second Oakbrook
Center Letter Agreement. The Special Servicer shall cooperate with the 2003-TOP9
Special Servicer and the Majority Certificateholder of the Controlling Class to
facilitate the procedures set forth in the Second Oakbrook Center Letter
Agreement with respect to such consultation rights.
If an event of default under the 2003-TOP9 Pooling and Servicing Agreement
has occurred with respect to the 2003-TOP9 Special Servicer, the Majority
Certificateholder of the Controlling Class or the holder of the Certificates
entitled to 25% of the Voting Rights hereunder may be entitled to direct the
Trustee to terminate the 2003-TOP9 Special Servicer and, to the extent that the
Trustee is so entitled under the Second Oakbrook Letter Agreement, to appoint a
successor special servicer in accordance with the terms of the Second Oakbrook
Center Letter Agreement.
SECTION 3.25 Lock-Box Accounts and Servicing Accounts.
(a) With respect to each Mortgage Loan or Xxxxxxxx Fashion Center
Companion Loan (other than the Oakbrook Center Mortgage Loan), the Master
Servicer shall administer each Lock-Box Account, Cash Collateral Account and
Servicing Account in accordance with the related Mortgage Loan, Xxxxxxxx Fashion
Center Companion Loan, Cash Collateral Account Agreement or Lock-Box Agreement,
if any.
(b) With respect to any Mortgage Loan (other than the Oakbrook Center
Mortgage Loan) that provides that a Lock-Box Account or Cash Collateral Account
will be established upon the occurrence of certain events specified in such
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan, the Master Servicer
(or, with respect to any Specially Serviced Mortgage Loan, the Special Servicer)
shall use reasonable efforts to establish or cause to be established such
Lock-Box Account upon the occurrence of such events unless the Master Servicer
(or the Special Servicer, as applicable) determines, in accordance with the
Servicing Standards, that such Lock-Box Account should not be established.
Notwithstanding the foregoing, the Master Servicer (or the Special Servicer, as
applicable) shall use reasonable efforts to establish or cause to be established
a Lock-Box Account for any ARD Loan no later than its Anticipated Repayment
Date.
SECTION 3.26 Representations and Warranties of the Master Servicer and the
Special Servicer.
GMACCM, in its capacity as both Master Servicer and Special Servicer
hereunder hereby represents and warrants to the Trustee, for its own benefit and
the benefit of the Certificateholders, to the Xxxxxxxx Fashion Center Companion
Holders and to the Depositor, as of the Closing Date, that:
(i) GMACCM is a corporation, duly organized, validly existing and
in good standing under the laws of the State of California, and GMACCM is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to perform its obligations under this Agreement.
177
(ii) The execution and delivery of this Agreement by GMACCM, and
the performance and compliance with the terms of this Agreement by GMACCM, will
not violate GMACCM'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) GMACCM 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 other parties hereto, constitutes a valid, legal and binding
obligation of GMACCM, enforceable against GMACCM 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) GMACCM 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, 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 GMACCM's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of GMACCM to perform its obligations under this Agreement or
the financial condition of GMACCM.
(vi) No litigation is pending or, to the best of GMACCM's
knowledge, threatened against GMACCM the outcome of which, in GMACCM's good
faith and reasonable judgment, could reasonably be expected to prohibit GMACCM
from entering into this Agreement or materially and adversely affect the ability
of GMACCM to perform its obligations under this Agreement.
(vii) GMACCM has errors and omissions insurance coverage which is
in full force and effect and complies with the requirements of Section 3.07
hereof.
(viii) No consent, approval, authorization or order, 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 GMACCM with this Agreement, or the consummation by GMACCM 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 GMACCM under this Agreement.
178
SECTION 3.27 Third-Party Beneficiaries.
Each of the Trustee and the Master Servicer acknowledge that: (a) the
2003-TOP9 Master Servicer, the 2003-TOP9 Trustee and the 2003-TOP9 Fiscal Agent
will be a third-party beneficiary under this Agreement with respect to any
provisions herein relating to (i) the reimbursement of any nonrecoverable
advances made with respect to the Oakbrook Center Mortgage Loan by the 2003-TOP9
Master Servicer and (ii) as to the 2003-TOP9 Master Servicer only, the
indemnification of the 2003-TOP9 Master Servicer against any claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses incurred in connection with its
duties under the 2003-TOP9 Pooling and Servicing Agreement and this Agreement
and relating to the Oakbrook Center Mortgage Loan, and (b) the 2003-TOP9 Special
Servicer will be a third-party beneficiary under this Agreement with respect to
any provisions herein relating to (i) the reimbursement of any nonrecoverable
advances made with respect to the Oakbrook Center Mortgage Loan by the 2003-TOP9
Special Servicer (it being understood that the 2003-TOP9 Special Servicer is not
required to make any advances) and (ii) the indemnification of the 2003-TOP9
Special Servicer against any claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection its duties under the 2003-TOP9 Pooling and
Servicing Agreement and this Agreement and relating to the Oakbrook Center
Mortgage Loan.
SECTION 3.28 Operating Advisors.
(a) (i) With respect to the Xxxxxxxx Fashion Center A/B Loan, so long
as the Xxxxxxxx Fashion Center B Note Holder is not a Xxxxxxxx Fashion Center
Borrower Affiliate, the Xxxxxxxx Fashion Center B Note Holder shall have the
right at any time to appoint a Xxxxxxxx Fashion Center B Note Operating Advisor
with respect to the Xxxxxxxx Fashion Center A/B Loan by giving written notice
thereof to the Trustee, the Master Servicer and the Special Servicer and shall
have the right in its sole discretion at any time and from time to time to
remove and replace any such Xxxxxxxx Fashion Center B Note Operating Advisor.
(ii) With respect to the Xxxxxxxx Fashion Center A/B Loan, the
foregoing right of the Xxxxxxxx Fashion Center B Note Holder to appoint a
Xxxxxxxx Fashion Center B Note Operating Advisor for the Xxxxxxxx Fashion Center
A/B Loan shall continue except during the existence of a Xxxxxxxx Fashion Center
B Note Control Appraisal Event, in which case there shall be no Xxxxxxxx Fashion
Center B Note Operating Advisor for the Xxxxxxxx Fashion Center A/B Loan.
(iii) Any Xxxxxxxx Fashion Center B Note Operating Advisor may be
a Xxxxxxxx Fashion Center B Note Holder that is not a Xxxxxxxx Fashion Center
Borrower Affiliate or a Certificateholder or an Affiliate thereof or an
unrelated third party, but may not be an Affiliate of the related Mortgagor.
(iv) The Xxxxxxxx Fashion Center B Note Holder has appointed the
Person appearing on Schedule VI hereto as the initial Xxxxxxxx Fashion Center B
Note Operating Advisor.
179
(b) (i) With respect to the Xxxxxxxx Fashion Center A/B Loan,
notwithstanding anything to the contrary contained herein (but subject to
Section 3.28(b)(iii)), unless a Xxxxxxxx Fashion Center B Note Control Appraisal
Event has occurred and is continuing, at all times when a Xxxxxxxx Fashion
Center B Note Operating Advisor is serving with respect to the Xxxxxxxx Fashion
Center A/B Loan, (i) the Special Servicer shall be required to consult with the
related Operating Advisor upon the occurrence of any Xxxxxxxx Fashion Center
Event of Default to consider alternative actions recommended by the Xxxxxxxx
Fashion Center B Note Operating Advisor and to consult with the Xxxxxxxx Fashion
Center B Note Operating Advisor with respect to determinations made pursuant to
Section 3.09, Section 3.18 or Section 3.19 and (ii) at any time (whether or not
a Xxxxxxxx Fashion Center Event of Default has occurred) the Master Servicer and
the Special Servicer will be required to (A) consult with the Xxxxxxxx Fashion
Center B Note Operating Advisor (1) with respect to proposals to take any
significant action with respect to the Xxxxxxxx Fashion Center A/B Loan and the
related Mortgaged Property and to consider alternative actions recommended by
the Xxxxxxxx Fashion Center B Note Operating Advisor and (2) to the extent that
the related Xxxxxxxx Fashion Center A/B Loan documents grant the lender the
right to approve budgets for the Xxxxxxxx Fashion Center B Note Mortgaged
Property, prior to approving any such budget and (iii) prior to taking any of
the following actions, to notify in writing the Xxxxxxxx Fashion Center B Note
Operating Advisor of any proposal to take any of such actions (and to provide
such Xxxxxxxx Fashion Center B Note Operating Advisor with such non-proprietary
information reasonably requested by such Xxxxxxxx Fashion Center B Note
Operating Advisor as may be necessary in the reasonable determination of such
Xxxxxxxx Fashion Center B Note Operating Advisor in order make a judgment, the
expense of providing such information to be an expense of the requesting party)
and to receive the written approval of such Xxxxxxxx Fashion Center B Note
Operating Advisor with respect to:
(A) any modification or amendment of, or waiver with respect to, the
Xxxxxxxx Fashion Center A/B Loan that would result in the extension of the
Maturity Date thereof, a reduction in the Interest Rate borne thereby or
the Monthly Payment, Prepayment Premium, exit fee or Yield Maintenance
Premium payable thereon or a deferral or forgiveness of interest on or
principal of the Xxxxxxxx Fashion Center A/B Loan, a modification or waiver
of any other monetary term of the Xxxxxxxx Fashion Center A/B Loan relating
to the timing or amount of any payment of principal and interest (other
than Default Interest) or a modification or waiver of any provision of the
Xxxxxxxx Fashion Center A/B Loan which restricts the related Mortgagor from
incurring additional indebtedness or from transferring a Mortgaged
Property;
(B) any modification or amendment of, or waiver with respect to, the
Xxxxxxxx Fashion Center A/B Loan that would result in a discounted pay-off
of the Xxxxxxxx Fashion Center A/B Loan;
(C) any foreclosure upon or comparable conversion (which may include
acquisition of a Foreclosed Property) of the ownership of the Mortgaged
Property securing the Xxxxxxxx Fashion Center A/B Loan or any acquisition
of the related Mortgaged Property by deed-in-lieu of foreclosure;
(D) any sale of a related Mortgaged Property or Foreclosed Property;
180
(E) any sale of the Xxxxxxxx Fashion Center A/B Loan other than
pursuant to Section 3.18 or under a Xxxxxxxx Fashion Center B Note Holder
Purchase Right;
(F) any release of the related Mortgagor, any guarantor or other
obligor from liability with respect to the Xxxxxxxx Fashion Center A/B
Loan;
(G) any determination not to enforce a "due-on-sale" or
"due-on-encumbrance" clause (unless such clause is not exercisable under
applicable law or such exercise is reasonably likely to result in
successful legal action by the Mortgagor) as provided in Section 3.08;
(H) any action to bring a related Mortgaged Property or Foreclosed
Property into compliance with Environmental Laws;
(I) any substitution or release of collateral for the Xxxxxxxx Fashion
Center A/B Loan;
(J) adoption or approval of a plan in a bankruptcy of a Mortgagor; or
(K) consenting to the execution, termination or renewal of any "Major
Lease" (as such term is defined in the Xxxxxxxx Fashion Center A/B Loan
documents);
(L) any renewal or replacement of the then existing insurance policies
(to the extent the lender's approval is required under the Xxxxxxxx Fashion
Center A/B Loan Documents) or any waiver, modification or amendment of any
insurance requirements under the Xxxxxxxx Fashion Center A/B Loan
Documents;
provided, that in the event that the Xxxxxxxx Fashion Center B Note Operating
Advisor fails to notify the Special Servicer or Master Servicer, as applicable,
of its approval or disapproval of any such proposed action within ten Business
Days of delivery to the Xxxxxxxx Fashion Center B Note Operating Advisor by the
Special Servicer or Master Servicer, as applicable, of written notice of such a
proposed action, together with the information requested by the Xxxxxxxx Fashion
Center B Note Operating Advisor pursuant to Section 3.28(c), such action by the
Special Servicer or Master Servicer, as applicable, shall be deemed to have been
approved by the Xxxxxxxx Fashion Center B Note Operating Advisor.
(ii) Notwithstanding any direction to, or approval or disapproval
of, or right to give direction to or to approve or disapprove, an action of, the
Special Servicer or the Master Servicer by the Xxxxxxxx Fashion Center B Note
Operating Advisor, in no event shall the Special Servicer or the Master Servicer
take any action or refrain from taking any action which would violate any law of
any applicable jurisdiction, be inconsistent with the Xxxxxxxx Fashion Center
A/B Loan document, be inconsistent with the Servicing Standard, violate the
REMIC Provisions or violate any other provisions of this Agreement (it being
understood and agreed that the taking of, or the refraining from taking, any
action by a Special Servicer or the Master Servicer pursuant to a direction,
approval or disapproval by the Xxxxxxxx Fashion Center B Note Operating Advisor
shall not constitute a violation of the provisions of this Agreement so long as
such action or inaction is consistent with the Servicing Standard). The taking
of, or refraining from taking, any action by the Special Servicer or Master
Servicer contrary to the directions of,
181
or in a manner disapproved by, the Xxxxxxxx Fashion Center B Note Operating
Advisor shall not constitute an Event of Default so long as the Special
Servicer's or the Master Servicer's taking, or refraining from taking, such
action in accordance with the direction of, or with the approval of, the
Xxxxxxxx Fashion Center B Note Operating Advisor would have violated any law of
any applicable jurisdiction, would have been inconsistent with the Servicing
Standard, would have violated the REMIC Provisions or would have violated any
other provision of this Agreement.
(iii) The Xxxxxxxx Fashion Center B Note Operating Advisor shall
not owe any fiduciary duty to the Trustee, the Fiscal Agent the Xxxxxxxx Fashion
Center Companion Paying Agent, the Master Servicer, any Special Servicer, any
Certificateholder or any Xxxxxxxx Fashion Center Companion Holder. The Xxxxxxxx
Fashion Center B Note Operating Advisor will not have any liability to the
Certificateholders or any Xxxxxxxx Fashion Center Companion Holder for any
action taken, or for refraining from the taking of any action or the giving of
any consent, in good faith pursuant to this Agreement, or for errors in
judgment. By its acceptance of a Certificate, each Certificateholder will be
deemed to have confirmed its understanding that the Xxxxxxxx Fashion Center B
Note Operating Advisor may take or refrain from taking actions that favor the
interests of the Xxxxxxxx Fashion Center B Note Holder over the
Certificateholders, and that the Xxxxxxxx Fashion Center B Note Operating
Advisor may have special relationships and interests that conflict with the
interests of the Certificateholders and will be deemed to have agreed to take no
action against an Operating Advisor or any of its officers, directors,
employees, principals or agents as a result of such a special relationship or
conflict, and that the Xxxxxxxx Fashion Center B Note Operating Advisor shall
not be liable by reason of its having acted or refrained from acting solely in
the interests of the Xxxxxxxx Fashion Center B Note Holder or its Affiliates.
(c) In connection with any action or determination or proposed action
or determination by the Special Servicer referred to in Section 3.28(b)(i), the
Special Servicer shall prepare a summary of such proposed action or
determination and an analysis of whether or not such action is reasonably likely
to produce a greater recovery on a present value basis than not taking such
action or making such determination and shall provide to the Xxxxxxxx Fashion
Center B Note Operating Advisor such summary and such information as is in its
possession or control and is reasonably requested by the Xxxxxxxx Fashion Center
B Note Operating Advisor as may be necessary in the reasonable judgment of the
Xxxxxxxx Fashion Center B Note Operating Advisor in order make a determination
with respect to each of the matters contained in Section 3.28(b)(i).
The Master Servicer and the Special Servicer, as applicable, shall provide
to the Xxxxxxxx Fashion Center B Note Operating Advisor or, if there is at the
time no Xxxxxxxx Fashion Center B Note Operating Advisor, the Xxxxxxxx Fashion
Center B Note Holder by hard copy or by electronic means (i) concurrently with
the delivery thereof to the related Mortgagor, copies of any notice of an
Xxxxxxxx Fashion Center Event of Default and any other notices sent to such
Mortgagor with respect to foreclosure or other exercise of remedies or
enforcement, modification or waiver with respect to such Mortgage Loan or the
related Mortgaged Property and (ii) within five Business Days of receipt
thereof, copies of any financial statements or other reports with respect to the
related Mortgagor or Mortgaged Property that were delivered to the Master
Servicer or the Special Servicer pursuant to the terms of the related Mortgage
Loan documents. At all times when the Xxxxxxxx Fashion Center A/B Loan is a
Specially Serviced Mortgage
182
Loan, within five Business Days of receipt thereof, the Special Servicer shall
provide to the Xxxxxxxx Fashion Center B Note Operating Advisor or, if there is
at the time no Xxxxxxxx Fashion Center B Note Operating Advisor, the Xxxxxxxx
Fashion Center B Note Holder, by hard copy or electronic means, copies of all
correspondence with respect to the related Mortgagor or Mortgaged Property that
were delivered to the Special Servicer and copies of any appraisals obtained.
Promptly following receipt of notice of the appointment of a Xxxxxxxx Fashion
Center B Note Operating Advisor, the Trustee shall notify the Master Servicer
and the Special Servicer in writing of the identity and address of the Xxxxxxxx
Fashion Center B Note Operating Advisor.
The Master Servicer and the Special Servicer shall also provide to the
Xxxxxxxx Fashion Center B Note Operating Advisor or, if there is at the time no
Xxxxxxxx Fashion Center B Note related Operating Advisor, the Xxxxxxxx Fashion
Center B Note Holder by hard copy or by other means agreed to by the Xxxxxxxx
Fashion Center B Note Operating Advisor or Xxxxxxxx Fashion Center B Note Holder
and the Master Servicer or the Special Servicer (i) within five Business Days of
receipt thereof, copies of any financial statements, certificates,
correspondence, notices, bills or reports with respect to the related Mortgagor
or Mortgaged Property that were delivered pursuant to, or to which the mortgagee
or lender would be entitled to under, the terms of the related Mortgage Loan
documents, (ii) within ten Business Days following the receipt thereof by the
Master Servicer or the Special Servicer monthly operating statements and rent
rolls for the related Mortgaged Property and (iii) within ten Business Days
following the receipt thereof by the Master Servicer or the Special Servicer
annual operating statements and rent rolls for the related Mortgaged Property.
Notwithstanding anything in this Agreement to the contrary, so long as no
Xxxxxxxx Fashion Center B Note Control Appraisal Event exists, the Xxxxxxxx
Fashion Center B Note Holder, in lieu of the Majority Certificateholder of the
Controlling Class, shall be entitled to take all actions under this Agreement
with respect to the Xxxxxxxx Fashion Center A/B Loan, and any references to the
Majority Certificateholder of the Controlling Class in this Agreement relating
to actions permitted to be taken only with the consent of the Majority
Certificateholder of the Controlling Class with respect to the Xxxxxxxx Fashion
Center A/B Loan shall be deemed to be references to the Xxxxxxxx Fashion Center
B Note Holder.
Notwithstanding the provisions of this Section 3.28, nothing is intended to
limit the right of Majority Certificateholder of the Controlling Class to
consult with the Master Servicer or Special Servicer with respect to any
Mortgage Loan.
The expense of providing information and summaries pursuant to this Section
3.28(c) shall be an expense of the Xxxxxxxx Fashion Center B Note Holder and
shall not be an expense of the Trust Fund.
SECTION 3.29 Xxxxxxxx Fashion Center B Note Intercreditor Matters.
(a) The Xxxxxxxx Fashion Center B Note Holder hereby assigns to the
Trustee the right to vote all its claims, including the right to approve or
reject any plan of reorganization, in any bankruptcy, insolvency or other
similar proceedings, whether voluntary or involuntary, with respect to the
Mortgagor on the Xxxxxxxx Fashion Center A/B Loan. The Trustee, at the direction
of the Special Servicer (and with the approval of the Master Servicer with
respect to the
183
Xxxxxxxx Fashion Center A/B Loan if the Special Servicer is the Xxxxxxxx Fashion
Center B Note Holder) (such direction and approval to be given in accordance
with the Servicing Standard and the obligation of the Master Servicer and the
Special Servicer to give due consideration to the maximization of the recovery
from the enforcement of remedies in respect of the Mortgaged Property), shall
represent the rights of both the Trust Fund and the Xxxxxxxx Fashion Companion
Holders in any such proceedings. The Special Servicer and the Master Servicer
shall be entitled to retain counsel in connection with the giving of such
directions and approvals. The fees and disbursements of any such counsel shall
be paid as a Servicing Advance.
No Xxxxxxxx Fashion Center B Note Holder shall have any rights to vote any
claims, including the right to approve or reject any plan of reorganization, in
any bankruptcy, insolvency or other similar proceedings, whether voluntary or
involuntary, with respect to the related Mortgagor on the Xxxxxxxx Fashion
Center A/B Loan. Therefore, the Trustee, at the direction of the Special
Servicer and subject to Section 3.28, shall represent the rights of the Trust
Fund and the Xxxxxxxx Fashion Center Companion Holders in any such proceedings.
(b) For so long as the Xxxxxxxx Fashion Center A/B Loan is a Specially
Serviced Mortgage Loan, or a Xxxxxxxx Fashion Center B Note Control Appraisal
Event exists, the Master Servicer or the Special Servicer shall notify the
Xxxxxxxx Fashion Center Companion Paying Agent (which shall notify the Xxxxxxxx
Fashion Center B Note Holder) of such event in accordance with the terms of, and
within the time periods provided in, the related Xxxxxxxx Fashion Center A/B
Intercreditor Agreement and any Xxxxxxxx Fashion Center B Note Holder that is
not a Xxxxxxxx Fashion Center Borrower Affiliate may purchase from the Trustee
on behalf of the Trust Fund, and the Trustee on behalf of the Trust Fund shall
sell, the Xxxxxxxx Fashion Center Mortgage Loan at any time prior to the
foreclosure or comparable conversion of the related Mortgaged Property at the
Purchase Price. In addition, in the event that the Special Servicer determines
to foreclose upon or comparably convert the Mortgaged Property securing the
Xxxxxxxx Fashion Center A/B Loan, the Special Servicer shall notify the Xxxxxxxx
Fashion Center Companion Paying Agent not less than 15 Business Days prior to
the completion of such foreclosure or conversion and the Xxxxxxxx Fashion Center
Companion Paying Agent shall notify the Xxxxxxxx Fashion Center B Note Holder of
any such determination with 5 Business Days of receipt of such notice from the
Special Servicer.
During any Xxxxxxxx Fashion Center B Note Holder Purchase Right Period for
the Xxxxxxxx Fashion Center A/B Loan, the Special Servicer shall specially
service the Xxxxxxxx Fashion Center A/B Loan in accordance with the Servicing
Standard, including commencement and prosecution of any foreclosure proceedings,
without regard to the right of the Xxxxxxxx Fashion Center B Note Holder to
purchase the Xxxxxxxx Fashion Center Mortgage Loan.
Notwithstanding anything to the contrary contained in this Agreement, no
Xxxxxxxx Fashion Center B Note Holder that is an Affiliate of Mortgage Loan
Seller shall be entitled to purchase the Xxxxxxxx Fashion Center Mortgage Loan
pursuant to this Section 3.29(b) or the Xxxxxxxx Fashion Center A/B
Intercreditor Agreement, as the case may be.
(c) (i) In the event that a Mortgagor fails to make any payment of
principal or interest on the Xxxxxxxx Fashion Center A/B Loan, resulting in a
monetary Xxxxxxxx Fashion Center Event of Default, the Master Servicer shall so
notify the Special Servicer, the
184
Trustee, the Xxxxxxxx Fashion Center Companion Holders, the Xxxxxxxx Fashion
Center B Note Operating Advisor and the Xxxxxxxx Fashion Center Companion Paying
Agent no later than two Business Days following the occurrence of such monetary
Xxxxxxxx Fashion Center Event of Default (and, if such monetary Xxxxxxxx Fashion
Center Event of Default is cured prior to the making of a Xxxxxxxx Fashion
Center B Note Holder Cure Advance (whether by the related Mortgagor or
otherwise) give notice to the Xxxxxxxx Fashion Center B Note Holder and the
Xxxxxxxx Fashion Center B Note Operating Advisor of such cure no later than the
next Business Day), followed by a second notice to the Xxxxxxxx Fashion Center B
Note Holder and the Xxxxxxxx Fashion Center B Note Operating Advisor on the
third (3rd) Business Day following such monetary Xxxxxxxx Fashion Center Event
of Default (unless such monetary Xxxxxxxx Fashion Center Event of Default is
cured prior to such third Business Day (whether by the Mortgagor, the Xxxxxxxx
Fashion Center B Note Holder or otherwise). Any such notice shall be in writing
sent by facsimile transmission (if the party to be notified has provided a fax
number to the Master Servicer) followed by notice by overnight courier) and
shall prominently specify that it relates to the Xxxxxxxx Fashion Center
Mortgage Loan. The Master Servicer shall have no liability whatsoever to the
Xxxxxxxx Fashion Center B Note Holder or Operating Advisor or any other Person
in the event that the Xxxxxxxx Fashion Center B Note Holder that is not a
Xxxxxxxx Fashion Center Borrower Affiliate or the Xxxxxxxx Fashion Center B Note
Operating Advisor fail to receive any such notice in a timely manner because of
(i) the failure of a Xxxxxxxx Fashion Center B Note Holder that is not a
Xxxxxxxx Fashion Center Borrower Affiliate to notify the Xxxxxxxx Fashion Center
Companion Paying Agent of a change in identity or notice address of such
Xxxxxxxx Fashion Center B Note Holder that is not a Xxxxxxxx Fashion Center
Borrower Affiliate or the Xxxxxxxx Fashion Center B Note Operating Advisor or
(ii) the failure of the Xxxxxxxx Fashion Center Companion Paying Agent to timely
notify the Master Servicer of any such change.
(ii) Any Xxxxxxxx Fashion Center B Note Holder that is not a
Xxxxxxxx Fashion Center Borrower Affiliate shall have the right, but not the
obligation, to cure such monetary Xxxxxxxx Fashion Center Event of Default
within five (5) Business Days following the first notice of such monetary
Xxxxxxxx Fashion Center Event of Default and at no other times (the "Xxxxxxxx
Fashion Center B Note Holder Cure Right") and, during such five (5) Business Day
period, neither the Master Servicer nor the Special Servicer shall accelerate
the related Mortgage Notes. At the time such cure payment is made, the Xxxxxxxx
Fashion Center B Note Holder that is not a Xxxxxxxx Fashion Center Borrower
Affiliate exercising the Xxxxxxxx Fashion Center B Note Holder Cure Right shall
be required to (i) make all required Delinquency Advances (without giving effect
to any determination that such Delinquency Advance would be a Nonrecoverable
Advance) on such Xxxxxxxx Fashion Center Pari Passu Loans, (ii) pay or reimburse
the Master Servicer, the Trustee, the Fiscal Agent and the Special Servicer, as
applicable, for all unreimbursed Advances, together with Advance Interest
thereon, theretofore made or required to be made by the Master Servicer, the
Trustee, the Fiscal Agent and the Special Servicer (without giving effect to any
determination that such Advance would be a Nonrecoverable Advance), in each case
to the extent relating to such Xxxxxxxx Fashion Center Note A/B Loan and (iii)
if, in addition to the failure by the Mortgagor to make a payment of principal
or interest on the Xxxxxxxx Fashion Center A/B Loan the related Mortgagor is in
default beyond any applicable notice and/or grace periods in the performance or
observance of any of its other obligations under the related Xxxxxxxx Fashion
Center Mortgage Loan documents the failure of which to cure, in the reasonable
good-faith business judgment of the Special Servicer,
185
exercised in accordance with the Servicing Standard, materially and adversely
affects the interests of the Certificateholders or the Xxxxxxxx Fashion Center
Companion Holders and such default is susceptible to cure whether by the making
of a Servicing Advance or another monetary payment or otherwise, make such
Servicing Advance or monetary payment or otherwise effect such cure (any such
payment or reimbursement, together with any Cure Deposit, a "Xxxxxxxx Fashion
Center B Note Holder Cure Advance"). So long as a monetary Xxxxxxxx Fashion
Center Event of Default exists for which a Xxxxxxxx Fashion Center B Note Holder
Cure Advance permitted hereunder is made, the Master Servicer, the Trustee, the
Fiscal Agent and the Special Servicer shall not treat such monetary Xxxxxxxx
Fashion Center Event of Default as a Xxxxxxxx Fashion Center Event of Default
(i) for purposes of Section 4 of the related Xxxxxxxx Fashion Center A/B
Intercreditor Agreement, (ii) for purposes of accelerating such Xxxxxxxx Fashion
Center Note A/B Loan or modifying, amending or waiving any provisions of the
related Mortgage Loan documents in connection with a Workout of the Xxxxxxxx
Fashion Center A/B Loan or commencing proceedings for foreclosure or the taking
of title by deed-in-lieu of foreclosure or other similar legal proceedings with
respect to the related Mortgaged Property, (iii) for purposes of commencing an
Appraisal Performance Event or (iv) for the purpose of determining whether a
Servicing Transfer Event has occurred provided, that such limitations shall not
prevent the Master Servicer, the Trustee, the Fiscal Agent or the Special
Servicer from sending notices of the Mortgage Loan Event of Default to the
related Mortgagor or any related guarantor or making demands on the related
Mortgagor or any related guarantor or from collecting Default Interest or late
payment charges from the related Mortgagor.
(iii) The right of the Xxxxxxxx Fashion Center B Note Holder to
exercise its Xxxxxxxx Fashion Center B Note Holder Cure Rights or to cause a
Special Servicing Delay shall be subject to the limitations that there be no
more than two Xxxxxxxx Fashion Center B Note Holder Cure Events and Special
Servicing Delays for Xxxxxxxx Fashion Center A/B Loan in any twelve calendar
month period and that no combination of Xxxxxxxx Fashion Center B Note Holder
Cure Events and Special Servicing Delays may continue for more than four
consecutive months. For purposes of this Agreement, (i) a single "Xxxxxxxx
Fashion Center B Note Holder Cure Event" shall mean the continuous exercise by
the Xxxxxxxx Fashion Center B Note Holder of Xxxxxxxx Fashion Center B Note
Holder Cure Rights for up to two consecutive months in the aggregate (but
without regard to the number of Mortgage Events of Default cured during such
period) and (ii) a Special Servicing Delay that also constitutes a Xxxxxxxx
Fashion Center B Note Holder Cure Event or that occurs simultaneously with a
Xxxxxxxx Fashion Center B Note Holder Cure Event shall be counted solely as a
Xxxxxxxx Fashion Center B Note Holder Cure Event and shall not be separately
counted in determining compliance with the preceding sentence. In no event shall
a Xxxxxxxx Fashion Center B Note Holder that is a Xxxxxxxx Fashion Center
Borrower Affiliate have the rights set forth in this Section.
(iv) The right of a Xxxxxxxx Fashion Center B Note Holder to
reimbursement for any payment made by it pursuant to this Section 3.29(c) shall
be subordinate in all respects to the rights of the Trust and the Xxxxxxxx
Fashion Center A-2 Note Holder to distributions of interest (other than Default
Interest) and principal with respect to such Mortgage Loan and to the rights of
the Trustee and Xxxxxxxx Fashion Center Companion Paying Agent and the Master
Servicer and the Special Servicer to distributions of the Trustee Fee, the
Servicing Fee, the Special Servicing Fee, Advances and any other compensation,
indemnity payments or other amounts distributable to them pursuant to Section
2.02 or Section 2.03 or payable to them
186
pursuant to or any other provision of this Agreement and such Xxxxxxxx Fashion
Center B Note Holder Cure Advance shall be reimbursable only as provided herein.
(v) The determination that a Servicing Transfer Event for the
Xxxxxxxx Fashion Center A/B Loan has occurred shall be delayed (each such delay
for one month or for two consecutive months in the aggregate, but in the case of
a single such delay no more than two consecutive months, a "Special Servicing
Delay") upon the occurrence of an event described in clause (3) of the
definition of "Specially Serviced Mortgage Loan" (unless an event described in
clause (2) or (4) of the definition of "Specially Serviced Mortgage Loan" has
occurred that has not been or is not being cured by the related Mortgagor or
unless an event described in clause (1), (5), (6), (7) or (8) of the definition
of "Specially Serviced Mortgage Loan" is also occurring) if, by the earlier to
occur of (i) the next Due Date and (ii) the 10th Business Day following notice
to the Xxxxxxxx Fashion Center B Note Holder of such event (which notice shall
be given no later than five Business Days prior to the next Due Date after the
occurrence of such event), the Xxxxxxxx Fashion Center B Note Holder shall have
deposited with the Master Servicer an amount equal to the Monthly Payment due on
the first Due Date following such deposit; provided,
(A) such deposit shall be irrevocable at any time on or
prior to such first Due Date and
(B) in the event that: (1) the Mortgagor fails to make the
Monthly Payment on the first Due Date, such deposit shall be
applied by the Master Servicer as the Xxxxxxxx Fashion Center B
Note Holder Cure Advance on such Due Date as provided in, and
subject to the limitations provided in this Section 3.29(c); (2)
the Mortgagor makes the Monthly Payment on such first Due Date
but the event described in clause (3) of the definition of
"Specially Serviced Mortgage Loan" is continuing, such deposit
shall either (x) be retained by the Master Servicer for
application as provided in clause (B)(1) on the second Due Date
following the date of deposit or (y) be returned to the Xxxxxxxx
Fashion Center B Note Holder making such deposit on the Business
Day following the written request for such return (so long as
such request is made on or prior to the fifth Business Day
following the first Due Date following the date of deposit); or
(3) the Mortgagor makes the Monthly Payment on the first Due Date
and the event described in clause (3) of the definition of
"Specially Serviced Mortgage Loan" is not continuing, such
deposit shall be returned to the Xxxxxxxx Fashion Center B Note
Holder making such deposit on the Business Day following the
first Due Date following the date of deposit.
For purposes of this Section 3.29(c)(v), the right of the Xxxxxxxx Fashion
Center B Note Holder to cause a Special Servicing Delay shall be subject to the
limitation that there be no more than an aggregate of two Xxxxxxxx Fashion
Center B Note Holder Cure Events or Special Servicing Delays, in any
combination, with respect to the Xxxxxxxx Fashion Center A/B Loan in any twelve
calendar month period; provided, that such two Xxxxxxxx Fashion Center B Note
Holder Cure Events and Special Servicing Delays may occur consecutively for a
total of no more than four consecutive months). Any deposit pursuant to clause
(A) or (B) of the second preceding sentence
187
is referred to herein as a "Cure Deposit." For purposes of the proviso to the
third preceding sentence, in the event that a Cure Deposit is retained by the
Master Servicer pursuant to clause (B)(2)(x), the "first Due Date," the "second
Due Date" and the "date of deposit" for subsequent periods shall be determined
as if the "date of deposit" had been the date on which the deposit was most
recently retained pursuant to such clause (B)(2)(x).
(d) The Xxxxxxxx Fashion Center B Note Holder hereby agrees with the
Trustee on behalf of the Certificateholders and the Xxxxxxxx Fashion Center A-2
Note Holder that the Xxxxxxxx Fashion Center B Note Holder shall not commence
(or solicit the commencement by any other Person of) an action with respect to
the Xxxxxxxx Fashion Center Pari Passu Loans or otherwise institute proceedings
in bankruptcy against the related Mortgagor or accelerate the maturity of the
Xxxxxxxx Fashion Center Pari Passu Loans other than through the Master Servicer
or the Special Servicer acting in accordance with the Servicing Standard and the
terms of this Agreement.
The Trustee on behalf of the Certificateholders and each Xxxxxxxx Fashion
Center Companion Holder hereby agrees that it will not enter into any agreement
with any related Mortgagor other than through the Trustee, the Master Servicer
or the Special Servicer as provided in this Agreement.
(e) Except for those duties to be performed by, and notices to be
furnished by, the Trustee or the Xxxxxxxx Fashion Center Companion Paying Agent
under this Agreement, the Master Servicer and, during a Special Servicing
Period, the Special Servicer shall perform such duties and furnish such notices,
reports and information on behalf of the Trust Fund as may be the obligation of
the Trust under the Xxxxxxxx Fashion Center A/B Intercreditor Agreement.
If the Xxxxxxxx Fashion Center B Note Holder is the party proposing the
modification, cancellation or termination of the Xxxxxxxx Fashion Center A/B
Intercreditor Agreement, the Master Servicer or Special Servicer shall require
such Xxxxxxxx Fashion Center B Note Holder to pay the expenses and fees of
obtaining the confirmation from the Rating Agencies and the expenses of the
Master Servicer and the Special Servicer in providing information to the Rating
Agencies in connection with obtaining such confirmation. In the event that the
Master Servicer or Special Servicer in accordance with the Servicing Standard
proposes the modification, cancellation or termination of the Xxxxxxxx Fashion
Center A/B Intercreditor Agreement, such expenses and fees of the Rating
Agencies and expenses of the Master Servicer and the Special Servicer shall be
paid by the Master Servicer as a Servicing Advance subject to reimbursement from
the Trust Fund (but not from amounts distributable to the Xxxxxxxx Fashion
Center B Note Holder), subject to its determination that such Servicing Advance
would not be a Nonrecoverable Advance.
(f) If, pursuant to Section 2.03, Section 3.18 or Section 9.01, the
Xxxxxxxx Fashion Center Mortgage Loan is purchased or repurchased from the Trust
Fund, the purchaser thereof shall be bound by the terms of the Xxxxxxxx Fashion
Center A/B Intercreditor Agreement and shall assume the rights and obligations
of the "Note A Holder" under the Xxxxxxxx Fashion Center A/B Intercreditor
Agreement. All portions of the related Mortgage File and other documents
pertaining to such Mortgage Loan shall be endorsed or assigned to the extent
necessary or appropriate to the purchaser of such Mortgage Loan in its capacity
as "Note A
188
Holder" (as a result of such purchase or repurchase), under the Xxxxxxxx Fashion
Center A/B Intercreditor Agreement in the manner contemplated under such
agreement, which such purchaser shall be deemed to acknowledge. Thereafter, such
Mortgage File shall be held by the "Note A Holder" or a custodian appointed
thereby for the benefit of the "Note A Holder" and the "Note B Holder", as their
interests appear under the Xxxxxxxx Fashion Center A/B Intercreditor Agreement.
If the related Servicing File is not already in the possession of such party, it
shall be delivered to the master servicer or special servicer, as the case may
be, under the separate servicing agreement for the Xxxxxxxx Fashion Center A/B
Loan.
In addition, if at any time neither any portion of the Xxxxxxxx Fashion
Center Mortgage Loan nor any related REO Property is an asset of the Trust, and
if a separate servicing agreement with respect to the Xxxxxxxx Fashion Center
A/B Loan or any REO Property, as applicable, has not been entered into pursuant
to the Xxxxxxxx Fashion Center A/B Intercreditor Agreement, then, until such
time as a separate servicing agreement is entered into in accordance with such
Xxxxxxxx Fashion Center A/B Intercreditor Agreement, and notwithstanding that
neither the Xxxxxxxx Fashion Center Mortgage Loan nor any related REO Property
is an asset of the Trust, the Trustee shall continue to hold the related
Mortgage File, and the Master Servicer and the Special Servicer shall continue
to service and administer the Xxxxxxxx Fashion Center A/B Loan and/or any REO
Property, for the benefit of the holder of the Xxxxxxxx Fashion Center Mortgage
Loan and the Xxxxxxxx Fashion Center Companion Holders, under this Agreement as
if the Xxxxxxxx Fashion Center A/B Loan or any REO Property were the sole assets
subject thereto, with any references herein to (i) the Trust, (ii) the Trustee,
(iii) the Certificates, (iv) the Certificateholders (or any sub-group thereof),
or (v) any representative of such holders (or any sub-group thereof), all being
construed to refer to the "Note A Holder".
If pursuant to Section 2.03, 3.18 or 9.01, the Xxxxxxxx Fashion Center
Mortgage Loan is purchased or repurchased from the Trust Fund and the servicing
and administration of the Xxxxxxxx Fashion Center A/B Loan is to be governed by
a separate servicing agreement and not by this Agreement, the Master Servicer
and the Special Servicer shall continue to act in such capacities under such
separate servicing agreement, which agreement shall be reasonably acceptable to
the Master Servicer and the Special Servicer, and shall contain servicing and
administration, limitation of liability, indemnification and servicing
compensation provisions substantially similar to the corresponding provisions of
this Agreement, except for the fact that such Xxxxxxxx Fashion Center A/B Loan
and the related Mortgaged Property shall be the sole asset serviced and
administered thereunder and the sole source of funds thereunder. Prior to the
Xxxxxxxx Fashion Center A/B Loan being serviced under any separate servicing
agreement, the Rating Agencies then rating any Xxxxxxxx Fashion Center Companion
Loan Securities shall have provided written confirmation to the Xxxxxxxx Fashion
Center A-2 Note Holder (at such holder's expense) that the servicing of the
Xxxxxxxx Fashion Center A/B Loan under such agreement would not result in a
downgrade, qualification or withdrawal of any of the ratings assigned by such
Rating Agencies with respect to the related class of Xxxxxxxx Fashion Center
Companion Loan Securities.
189
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
AND RELATED MATTERS
SECTION 4.01 Distributions.
(a) On each Distribution Date, the Trustee shall be deemed to apply the
Available Distribution Amount (after apportionment of any expenses under this
Agreement properly allocable to the Countryside Village Apartments REMIC and the
Garden Lakes Shopping Center REMIC so as to result in the deemed payment of the
amounts payable with respect to the Regular Interest of such REMIC to be in
accordance with its REMIC Declaration) for such date for the following purposes
and in the following order of priority:
(i) to pay interest to REMIC II in respect of the various REMIC I
Regular Interests, up to an amount equal to, and pro rata in accordance with,
all Uncertificated Distributable Interest for each such REMIC I Regular Interest
for such Distribution Date and, to the extent not previously deemed paid, for
all prior Distribution Dates;
(ii) to pay principal to REMIC II in respect of the various REMIC
I Regular Interests, up to an amount equal to, and pro rata in accordance with,
in the case of each such REMIC I Regular Interest for such Distribution Date,
the excess, if any, of the Uncertificated Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date, over
the Stated Principal Balance of the related Mortgage Loan, REO Loan or, if
applicable, Replacement Mortgage Loan(s), as the case may be, that will be
outstanding immediately following such Distribution Date; and
(iii) to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to the various REMIC
I Regular Interests, up to an amount equal to, and pro rata in accordance with,
the Loss Reimbursement Amount for each such REMIC I Regular Interest immediately
prior to such Distribution Date.
On each Distribution Date, the Trustee shall be deemed to apply any amounts
withdrawn from the Excess Liquidation Proceeds Reserve Account for such
Distribution Date to reimburse REMIC II for any Realized Losses and Additional
Trust Fund Expenses previously deemed allocated to the various REMIC I Regular
Interests and unreimbursed pursuant to Section 4.01(a)(iii), up to an amount
equal to, and pro rata in accordance with, the Loss Reimbursement Amount for
each such REMIC I Regular Interest immediately prior to such Distribution Date.
On each Distribution Date, the Trustee shall pay to the Holders of the
Class R-I Certificates, in accordance with Section 4.01(c), that portion, if
any, of the Available Distribution Amount for such date that has not otherwise
been deemed paid to REMIC II in respect of the REMIC I Regular Interests
pursuant to the foregoing provisions of this Section 4.01(a) (such portion, the
"Class R-I Distribution Amount" for such Distribution Date).
On each Distribution Date, the Trustee shall be deemed to apply amounts
relating to each Prepayment Premium then on deposit in the Distribution Account
and received during or prior to the related Collection Period, to pay additional
interest to REMIC II in respect of the REMIC I
190
Regular Interest that relates to the Mortgage Loan or REO Loan, as the case may
be, as to which such Prepayment Premium was received.
All amounts (other than additional interest in the form of amounts relating
to Prepayment Premiums) deemed paid to REMIC II in respect of the REMIC I
Regular Interests pursuant to this Section 4.01(a) on any Distribution Date is
hereinafter referred to as the "REMIC II Distribution Amount" for such date.
(b) On each Distribution Date, the Trustee shall be deemed to apply the
REMIC II Distribution Amount (other than any amounts withdrawn from the Excess
Liquidation Proceeds Reserve Account) for such date for the following purposes
and in the following order of priority:
(i) to pay interest to REMIC III in respect of all REMIC II
Regular Interests up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC II Regular Interests for such Distribution
Date and, to the extent not previously deemed paid, for all prior Distribution
Dates with such payments allocated among the REMIC II Regular Interests such
that remaining amounts, if any, of unpaid interest on each such REMIC II Regular
Interest will equate to the remaining unpaid accrued interest on the
corresponding Class of Principal Balance Certificates or Class X Component
outstanding after all subsequent adjustments made on such Distribution Date
under Section 4.01(c) below;
(ii) to pay principal to REMIC III in respect of all REMIC II
Regular Interests apportioned as payment of Uncertificated Principal Balance
among REMIC II Regular Interests such that the remaining Uncertificated
Principal Balance of each such class will equal the then outstanding Class
Principal Balance of the corresponding Principal Balance Certificates after all
subsequent adjustments made on such Distribution Date under Section 4.01(c)
below (other than payments thereunder in reimbursement of any Realized Losses
and Additional Trust Fund Expenses); provided, that (A) with respect to
distributions of principal in respect of REMIC II Regular Interests XX-0-0,
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H,
LA-1-2-I, LA-1-2-J and LA-1-2-K (I) the aggregate Uncertificated Principal
Balance of such REMIC II Regular Interests shall correspond with the outstanding
Class Principal Balance of the Class A-1 Certificates and (II) the
Uncertificated Principal Balance of the REMIC II Regular Interest LA-1-2-A will
only be reduced after the Uncertificated Principal Balance of the REMIC II
Regular Interest LA-1-1 has been reduced to zero, the Uncertificated Principal
Balance of the REMIC II Regular Interest LA-1-2-B will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LA-1-2-A has
been reduced to zero, the Uncertificated Principal Balance of the REMIC II
Regular Interest LA-1-2-C will only be reduced after the Uncertificated
Principal Balance of the REMIC II Regular Interest LA-1-2-B has been reduced to
zero, the Uncertificated Principal Balance of the REMIC II Regular Interest
LA-1-2-D will only be reduced after the Uncertificated Principal Balance of the
REMIC II Regular Interest LA-1-2-C has been reduced to zero, the Uncertificated
Principal Balance of the REMIC II Regular Interest LA-1-2-E will only be reduced
after the Uncertificated Principal Balance of the REMIC II Regular Interest
LA-1-2-D has been reduced to zero, the Uncertificated Principal Balance of the
REMIC II Regular Interest LA-1-2-F will only be reduced after the Uncertificated
Principal Balance of the REMIC II Regular Interest LA-1-2-E has been reduced to
zero, the Uncertificated Principal Balance of the REMIC II Regular
191
Interest LA-1-2-G will only be reduced after the Uncertificated Principal
Balance of the REMIC II Regular Interest LA-1-2-F has been reduced to zero, the
Uncertificated Principal Balance of the REMIC II Regular Interest LA-1-2-H will
only be reduced after the Uncertificated Principal Balance of the REMIC II
Regular Interest LA-1-2-G has been reduced to zero, the Uncertificated Principal
Balance of the REMIC II Regular Interest LA-1-2-I will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LA-1-2-H has
been reduced to zero, the Uncertificated Principal Balance of the REMIC II
Regular Interest LA-1-2-J will only be reduced after the Uncertificated
Principal Balance of the REMIC II Regular Interest LA-1-2-I has been reduced to
zero, and the Uncertificated Principal Balance of the REMIC II Regular Interest
LA-1-2-K will only be reduced after the Uncertificated Principal Balance of the
REMIC II Regular Interest LA-1-2-J has been reduced to zero; (B) with respect to
distributions of principal in respect of REMIC II Regular Interests XX-0-X,
XX-0-X, XX-0-X and LA-2-D, (I) the aggregate Uncertificated Principal Balance of
the REMIC II Regular Interests XX-0-X, XX-0-X, XX-0-X and LA-2-D shall
correspond with the outstanding Class Principal Balance of the Class A-2
Certificates and (II) the Uncertificated Principal Balance of the REMIC II
Regular Interest LA-2-B will only be reduced after the Uncertificated Principal
Balance of the REMIC II Regular Interest LA-2-A has been reduced to zero, the
Uncertificated Principal Balance of the REMIC II Regular Interest LA-2-C will
only be reduced after the Uncertificated Principal Balance of the REMIC II
Regular Interest LA-2-B has been reduced to zero, and the Uncertificated
Principal Balance of the REMIC II Regular Interest LA-2-D will only be reduced
after the Uncertificated Principal Balance of the REMIC II Regular Interest
LA-2-C has been reduced to zero; (C) with respect to distributions of principal
in respect of REMIC II Regular Interests LA1-1, LA1-2-A, LA1-2-B, LA1-2-C,
LA1-2-D, LA1-2-E, LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L,
LA1-2-M and LA1-2-N (I) the aggregate Uncertificated Principal Balance of such
REMIC II Regular Interests shall correspond with the outstanding Class Principal
Balance of the Class A-1A Certificates and (II) the Uncertificated Principal
Balance of the REMIC II Regular Interest LA1-2-A will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LA1-1 has been
reduced to zero, the Uncertificated Principal Balance of the REMIC II Regular
Interest LA1-2-B will only be reduced after the Uncertificated Principal Balance
of the REMIC II Regular Interest LA1-2-A has been reduced to zero, the
Uncertificated Principal Balance of the REMIC II Regular Interest LA1-2-C will
only be reduced after the Uncertificated Principal Balance of the REMIC II
Regular Interest LA1-2-B has been reduced to zero, the Uncertificated Principal
Balance of the REMIC II Regular Interest LA1-2-D will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LA1-2-C has
been reduced to zero, the Uncertificated Principal Balance of the REMIC II
Regular Interest LA1-2-E will only be reduced after the Uncertificated Principal
Balance of the REMIC II Regular Interest LA1-2-D has been reduced to zero, the
Uncertificated Principal Balance of the REMIC II Regular Interest LA1-2-F will
only be reduced after the Uncertificated Principal Balance of the REMIC II
Regular Interest LA1-2-E has been reduced to zero, the Uncertificated Principal
Balance of the REMIC II Regular Interest LA1-2-G will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LA1-2-F has
been reduced to zero, the Uncertificated Principal Balance of the REMIC II
Regular Interest LA1-2-H will only be reduced after the Uncertificated Principal
Balance of the REMIC II Regular Interest LA1-2-G has been reduced to zero, the
Uncertificated Principal Balance of the REMIC II Regular Interest LA1-2-I will
only be reduced after the Uncertificated Principal Balance of the REMIC II
Regular Interest LA1-2-H has been reduced to
192
zero, the Uncertificated Principal Balance of the REMIC II Regular Interest
LA1-2-J will only be reduced after the Uncertificated Principal Balance of the
REMIC II Regular Interest LA1-2-I has been reduced to zero; the Uncertificated
Principal Balance of the REMIC II Regular Interest LA1-2-K will only be reduced
after the Uncertificated Principal Balance of the REMIC II Regular Interest
LA1-2-J has been reduced to zero, the Uncertificated Principal Balance of the
REMIC II Regular Interest LA1-2-L will only be reduced after the Uncertificated
Principal Balance of the REMIC II Regular Interest LA1-2-K has been reduced to
zero, the Uncertificated Principal Balance of the REMIC II Regular Interest
LA1-2-M will only be reduced after the Uncertificated Principal Balance of the
REMIC II Regular Interest LA1-2-L has been reduced to zero and the
Uncertificated Principal Balance of the REMIC II Regular Interest LA1-2-N will
only be reduced after the Uncertificated Principal Balance of the REMIC II
Regular Interest LA1-2-M has been reduced to zero; (D) with respect to
distributions of principal in respect of REMIC II Regular Interests LF-A, LF-B
and LF-C, (I) the aggregate Uncertificated Principal Balance of the REMIC II
Regular Interests LF-A, LF-B and LF-C shall correspond with the outstanding
Class Principal Balance of the Class F Certificates and (II) the Uncertificated
Principal Balance of the REMIC II Regular Interest LF-B will only be reduced
after the Uncertificated Principal Balance of the REMIC II Regular Interest LF-A
has been reduced to zero and the Uncertificated Principal Balance of the REMIC
II Regular Interest LF-C will only be reduced after the Uncertificated Principal
Balance of the REMIC II Regular Interest LF-B has been reduced to zero; (E) with
respect to distributions of principal in respect of REMIC II Regular Interests
LG-A and LG-B, (I) the aggregate Uncertificated Principal Balance of the REMIC
II Regular Interests LG-A and LG-B shall correspond with the outstanding Class
Principal Balance of the Class K Certificates and (II) the Uncertificated
Principal Balance of the REMIC II Regular Interest LG-B will only be reduced
after the Uncertificated Principal Balance of the REMIC II Regular Interest LG-A
has been reduced to zero; (F) with respect to distributions of principal in
respect of REMIC II Regular Interests LH-A, LH-B and LH-C, (I) the aggregate
Uncertificated Principal Balance of the REMIC II Regular Interests LH-A, LH-B
and LH-C shall correspond with the outstanding Class Principal Balance of the
Class H Certificates and (II) the Uncertificated Principal Balance of the REMIC
II Regular Interest LH-B will only be reduced after the Uncertificated Principal
Balance of the REMIC II Regular Interest LH-A has been reduced to zero and the
Uncertificated Principal Balance of the REMIC II Regular Interest LH-C will only
be reduced after the Uncertificated Principal Balance of the REMIC II Regular
Interest LH-B has been reduced to zero; (G) with respect to distributions of
principal in respect of REMIC II Regular Interests LJ-A, LJ-B and LJ-C, (I) the
aggregate Uncertificated Principal Balance of the REMIC II Regular Interests
LJ-A, LJ-B and LJ-C shall correspond with the outstanding Class Principal
Balance of the Class J Certificates and (II) the Uncertificated Principal
Balance of the REMIC II Regular Interest LJ-B will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LJ-A has been
reduced to zero and the Uncertificated Principal Balance of the REMIC II Regular
Interest LJ-C will only be reduced after the Uncertificated Principal Balance of
the REMIC II Regular Interest LJ-B has been reduced to zero; (H) with respect to
distributions of principal in respect of REMIC II Regular Interests LK-A and
LK-B, (I) the aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests LK-A and LK-B shall correspond with the outstanding Class Principal
Balance of the Class G Certificates and (II) the Uncertificated Principal
Balance of the REMIC II Regular Interest LK-B will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LK-A has been
reduced to zero; and (I) with respect to
193
distributions of principal in respect of REMIC II Regular Interests LL-A and
LL-B, (I) the aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests LL-A and LL-B shall correspond with the outstanding Class Principal
Balance of the Class L Certificates and (II) the Uncertificated Principal
Balance of the REMIC II Regular Interest LL-B will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LL-A has been
reduced to zero.
(iii) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II Regular
Interests, apportioned among the REMIC II Regular Interests consistent with the
reimbursement payments made on the corresponding Classes of Principal Balance
Certificates on such Distribution Date under Section 4.01(c) below; provided,
that (A) with respect to REMIC II Regular Interests XX-0-0, XX-0-0-X, XX-0-0-X,
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J
and LA-1-2-K, any Realized Losses and Additional Trust Fund Expenses shall be
allocated and reimbursed first to REMIC II Regular Interest LA-1-2-K, then to
REMIC II Regular Interest LA-1-2-J, then to REMIC II Regular Interest LA-1-2-I,
then to REMIC II Regular Interest LA-1-2-H, then to REMIC II Regular Interest
LA-1-2-G, then to the REMIC II Regular Interest LA-1-2-F, then to REMIC II
Regular Interest LA-1-2-E, then to REMIC II Regular Interest LA-1-2-D, then to
REMIC II Regular Interest LA-1-2-C, then to REMIC II Regular Interest LA-1-2-B,
then to REMIC II Regular Interest LA-1-2-A and then to REMIC II Regular Interest
LA-1-1, (B) with respect to REMIC II Regular Interests XX-0-X, XX-0-X, XX-0-X
and LA-2-D any Realized Losses and Additional Trust Fund Expenses shall be
allocated and reimbursed first to the REMIC II Regular Interest LA-2-D, then to
the REMIC II Regular Interest LA-2-C, then to REMIC II Regular Interest LA-2-B
and then to the REMIC II Regular Interest LA-2-A, (C) with respect to REMIC II
Regular Interests LA1-1, LA1-2-A, LA1-2-B, LA1-2-C, LA1-2-D, LA1-2-E, LA1-2-F,
LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M and LA1-2-N any
Realized Losses and Additional Trust Fund Expenses shall be allocated and
reimbursed first to REMIC II Regular Interest LA1-2-N, then to REMIC II Regular
Interest LA1-2-M, then to REMIC II Regular Interest LA1-2-L, then to REMIC II
Regular Interest LA1-2-K, then to REMIC II Regular Interest LA1-2-J, then to
REMIC II Regular Interest LA1-2-I, then to REMIC II Regular Interest LA1-2-H,
then to REMIC II Regular Interest LA1-2-G, then to the REMIC II Regular Interest
LA1-2-F, then to REMIC II Regular Interest LA1-2-E, then to REMIC II Regular
Interest LA1-2-D, then to REMIC II Regular Interest LA1-2-C, then to REMIC II
Regular Interest LA1-2-B, then to REMIC II Regular Interest LA1-2-A and then to
REMIC II Regular Interest LA1-1, (D) with respect to REMIC II Regular Interests
LF-A, LF-B and LF-C, any Realized Losses and Additional Trust Fund Expenses
shall be allocated and reimbursed first to the REMIC II Regular Interest LF-C,
then to the REMIC II Regular Interest LF-B and then to REMIC II Regular Interest
LF-A, (E) with respect to REMIC II Regular Interests LG-A and LG-B, any Realized
Losses and Additional Trust Fund Expenses shall be allocated and reimbursed
first to the REMIC II Regular Interest LG-B and then to REMIC II Regular
Interest LG-A, (F) with respect to REMIC II Regular Interests LH-A, LH-B and
LH-C, any Realized Losses and Additional Trust Fund Expenses shall be allocated
and reimbursed first to the REMIC II Regular Interest LH-C, then to the REMIC II
Regular Interest LH-B and then to REMIC II Regular Interest LH-A, (G) with
respect to REMIC II Regular Interests LJ-A, LJ-B and LJ-C, any Realized Losses
and Additional Trust Fund Expenses shall be allocated and reimbursed first to
the REMIC II Regular Interest LJ-C, then to the REMIC II Regular Interest LJ-B
and then to REMIC II Regular Interest LJ-A, (H) with respect to REMIC II Regular
Interests LK-A and LK-
194
B, any Realized Losses and Additional Trust Fund Expenses shall be allocated and
reimbursed first to the REMIC II Regular Interest LK-B and then to REMIC II
Regular Interest LK-A and (I) with respect to REMIC II Regular Interests LL-A
and LL-B, any Realized Losses and Additional Trust Fund Expenses shall be
allocated and reimbursed first to the REMIC II Regular Interest LL-B and then to
REMIC II Regular Interest LL-A.
On each Distribution Date, the Trustee shall be deemed to apply any amounts
withdrawn from the Excess Liquidation Proceeds Reserve Account for such
Distribution Date to reimburse REMIC III for any Realized Losses and Additional
Trust Fund Expenses previously deemed allocated to REMIC II Regular Interests
and unreimbursed pursuant to Section 4.01(b)(iii), consistent with the
reimbursement payments made on the corresponding Classes of Principal Balance
Certificates on such Distribution Date under Section 4.01(c) below.
On each Distribution Date, the Trustee shall pay to the Holders of the
Class R-II Certificates, in accordance with Section 4.01(c), that portion, if
any, of the REMIC II Distribution Amount for such date that has not otherwise
been deemed paid to REMIC III in respect of the REMIC II Regular Interests
pursuant to the foregoing provisions of this Section 4.01(b) (such portion, the
"Class R-II Distribution Amount" for such Distribution Date).
On each Distribution Date, the Trustee shall be deemed to apply all amounts
relating to Prepayment Premiums then on deposit in the Distribution Account and
received during or prior to the related Collection Period, to pay additional
interest to REMIC III in respect of REMIC II Regular Interests allocable among
the REMIC II Regular Interests in an amount with respect to each REMIC II
Regular Interest equal to the amount allocable to the corresponding Class of
Principal Balance Certificates and Class X Component outstanding after all
subsequent adjustments made on such Distribution Date under Section 4.01(c)
below.
(c) On each Distribution Date, following the deemed payments to REMIC
III in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(b), the Trustee shall withdraw from the Distribution Account the
Available Distribution Amount for such Distribution Date and shall apply such
amount for the following purposes and in the following order of priority:
(i) to pay interest: (A) pro rata, to the Holders of the Class
A-1 and Class A-2 Certificates, up to an amount equal to all Distributable
Certificate Interest for each of the Class A-1 and Class A-2 Certificates for
such Distribution Date and, to the extent not previously paid, for each prior
Distribution Date, if any, from the Loan Group 1 Available Distribution Amount;
(B) to the Holders of the Class A-1A Certificates, up to an amount equal to all
Distributable Certificate Interest for the Class A-1A Certificates for such
Distribution Date and, to the extent not previously paid, for each prior
Distribution Date, if any, from the Loan Group 2 Available Distribution Amount;
and (C) pro rata, to the holders of the Class X-1 and Class X-2 Certificates, up
to an amount equal to all Distributable Certificate Interest for the Class X-1
and Class X-2 Certificates for such Distribution Date, and to the extent not
previously paid, for each prior Distribution Date, if any, from the Available
Distribution Amount; provided, if the Available Distribution Amount (or
applicable portion thereof) is not sufficient to pay all of the foregoing, pro
rata, to the Holders of the respective Classes of Senior Certificates, up to an
195
amount equal to all Distributable Certificate Interest for each such Class of
Certificates for such Distribution Date;
(ii) to pay principal: (A)(1) first to the Holders of the Class
A-1 Certificates in an amount up Loan Group 1 Principal Distribution Amount and,
after the Class Principal Balance of the Class A-1A Certificates has been
reduced to zero, the Loan Group 2 Principal Distribution Amount remaining after
payments to the Holders of the Class A-1A Certificates have been made on such
Distribution Date until the Class Principal Balance of the Class A-1
Certificates has been reduced to zero, and (2) then to the Holders of the Class
A-2 Certificates in an amount up to the Loan Group 1 Principal Distribution
Amount remaining after payments to the Holders of the Class A-1 Certificates
have been made on such Distribution Date and, after the Class Principal Balance
of the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to the Holders of the
Class A-1A and the Class A-1 Certificates have been made on such Distribution
Date until the Class Principal Balance of the Class A-2 Certificates has been
reduced to zero; and (B) to the Holders of the Class A-1A Certificates in an
amount up to the Loan Group 2 Principal Distribution Amount and, after the Class
Principal Balances of the Class A-1 and Class A-2 Certificates have been reduced
to zero, the Loan Group 1 Principal Distribution Amount remaining after payments
to the Holders of the Class A-1 and Class A-2 Certificates have been made on
such Distribution Date, in each case, until the Class Principal Balance of the
Class A-1A Certificates has been reduced to zero;
(iii) to reimburse the Holders of the respective Classes of Class
A Certificates, up to an amount equal to and pro rata as among such Classes in
accordance with, the respective amounts of Realized Losses and Additional Trust
Fund Expenses, if any, previously deemed allocated to such Classes of
Certificates and for which no reimbursement has previously been paid; and
(iv) to make payments on the Subordinated Certificates pursuant
to the following paragraph;
provided, that on each Distribution Date after the aggregate of the Class
Principal Balances of the Subordinated Certificates has been reduced to zero,
and in any event on the Final Distribution Date, the payments of principal to be
made pursuant to clause (ii) above, will be so made to the Holders of the
respective Classes of Class A Certificates, up to an amount equal to, and pro
rata as among such Classes in accordance with, the respective then outstanding
Class Principal Balances of such Classes of Certificates. References to
"remaining Principal Distribution Amount" shall be to the Principal Distribution
Amount net of any distributions of principal made in respect thereof to the
Holders of each Class of Class A Certificates that, pursuant to clause (ii)
above, have a prior right to payment with respect thereto.
On each Distribution Date, following the foregoing series of payments on
the Senior Certificates, the Trustee shall apply the remaining portion, if any,
of the Available Distribution Amount for such date for the following purposes
and in the following order of priority:
196
(i) to pay interest to the Holders of the Class B Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(ii) if the Class Principal Balances of the Class A Certificates
have been reduced to zero, to pay principal to the Holders of the Class B
Certificates, up to an amount equal to the lesser of (A) the then outstanding
Class Principal Balance of such Class of Certificates and (B) the remaining
Principal Distribution Amount for such Distribution Date;
(iii) to reimburse the Holders of the Class B Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been paid;
(iv) to pay interest to the Holders of the Class C Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A and Class B
Certificates have been reduced to zero, to pay principal to the Holders of the
Class C Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class of Certificates and (B) the
remaining Principal Distribution Amount for such Distribution Date;
(vi) to reimburse the Holders of the Class C Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(vii) to pay interest to the Holders of the Class D Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(viii) if the Class Principal Balances of the Class A, Class B
and Class C Certificates have been reduced to zero, to pay principal to the
Holders of the Class D Certificates, up to an amount equal to the lesser of (A)
the then outstanding Class Principal Balance of such Class of Certificates and
(B) the remaining Principal Distribution Amount for such Distribution Date;
(ix) to reimburse the Holders of the Class D Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(x) to pay interest to the Holders of the Class E Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
197
(xi) if the Class Principal Balances of the Class A, Class B,
Class C and Class D Certificates have been reduced to zero, to pay principal to
the Holders of the Class E Certificates, up to an amount equal to the lesser of
(A) the then outstanding Class Principal Balance of such Class of Certificates
and (B) the remaining Principal Distribution Amount for such Distribution Date;
(xii) to reimburse the Holders of the Class E Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xiii) to pay interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A, Class B,
Class C, Class D and Class E Certificates have been reduced to zero, to pay
principal to the Holders of the Class F Certificates, up to an amount equal to
the lesser of (A) the then outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Principal Distribution Amount for such
Distribution Date;
(xv) to reimburse the Holders of the Class F Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xvi) to pay interest to the Holders of the Class G Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xvii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E and Class F Certificates have been reduced to zero, to
pay principal to the Holders of the Class G Certificates, up to an amount equal
to the lesser of (A) the then outstanding Class Principal Balance of such Class
of Certificates and (B) the remaining Principal Distribution Amount for such
Distribution Date;
(xviii) to reimburse the Holders of the Class G Certificates, up
to an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xix) to pay interest to the Holders of the Class H Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xx) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F and Class G Certificates have been reduced to
zero, to pay principal to the Holders of the Class H Certificates, up to an
amount equal to the lesser of (A) the then
198
outstanding Class Principal Balance of such Class of Certificates and (B) the
remaining Principal Distribution Amount for such Distribution Date;
(xxi) to reimburse the Holders of the Class H Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxii) to pay interest to the Holders of the Class J
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates have been
reduced to zero, to pay principal to the Holders of the Class J Certificates, up
to an amount equal to the lesser of (A) the then outstanding Class Principal
Balance of such Class of Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Date;
(xxiv) to reimburse the Holders of the Class J Certificates, up
to an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxv) to pay interest to the Holders of the Class K Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
the Class K Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxvi) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class J Certificates
have been reduced to zero, to pay principal to the Holders of the Class K
Certificates, up to an amount equal to the lesser of (A) the then outstanding
Class Principal Balance of such Class K Certificates and (B) the remaining
Principal Distribution Amount for such Distribution Dates;
(xxvii) to reimburse the Holders of the Class K Certificates, up
to an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class K Certificates and for which no
reimbursement has previously been received;
(xxviii) to pay interest to the Holders of the Class L
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class L Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xxix) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates have been reduced to zero, to pay principal to the Holders of the
Class L Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class L Certificates and (B) the
remaining Principal Distribution Amount for such Distribution Dates;
199
(xxx) to reimburse the Holders of the Class L Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class L Certificates and for which no
reimbursement has previously been received;
(xxxi) to pay interest to the Holders of the Class M
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class M Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xxxii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K and Class
L Certificates have been reduced to zero, to pay principal to the Holders of the
Class M Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class M Certificates and (B) the
remaining Principal Distribution Amount for such Distribution Dates;
(xxxiii) to reimburse the Holders of the Class M Certificates, up
to an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class M Certificates and for which no
reimbursement has previously been received;
(xxxiv) to pay interest to the Holders of the Class N-1
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class N-1 Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xxxv) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L
and Class M Certificates have been reduced to zero, to pay principal to the
Holders of the Class N-1 Certificates, up to an amount equal to the lesser of
(A) the then outstanding Class Principal Balance of such Class N-1 Certificates
and (B) the remaining Principal Distribution Amount for such Distribution Dates;
(xxxvi) to reimburse the Holders of the Class N-1 Certificates,
up to an amount equal to all Realized Losses and Additional Trust Fund Expenses,
if any, previously deemed allocated to such Class N-1 Certificates and for which
no reimbursement has previously been received;
(xxxvii) to pay interest to the Holders of the Class N-2
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class N-2 Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xxxviii) if the Class Principal Balances of the Class A, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M and Class N-1 Certificates have been reduced to zero, to pay
principal to the Holders of the Class N-2 Certificates, up to an amount equal to
the lesser of (A) the then outstanding Class Principal Balance of such Class N-2
Certificates and (B) the remaining Principal Distribution Amount for such
Distribution Dates;
200
(xxxix) to reimburse the Holders of the Class N-2 Certificates,
up to an amount equal to all Realized Losses and Additional Trust Fund Expenses,
if any, previously deemed allocated to such Class N-2 Certificates and for which
no reimbursement has previously been received;
(xl) to pay interest to the Holders of the Class O Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class O Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xli) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N-1 and Class N-2 Certificates have been reduced to zero, to pay
principal to the Holders of the Class O Certificates, up to an amount equal to
the lesser of (A) the then outstanding Class Principal Balance of such Class O
Certificates and (B) the remaining Principal Distribution Amount for such
Distribution Dates;
(xlii) to reimburse the Holders of the Class O Certificates, up
to an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class O Certificates and for which no
reimbursement has previously been received;
(xliii) to pay interest to the Holders of the Class P
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class P Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xliv) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N-1, Class N-2 and Class O Certificates have been reduced to
zero, to pay principal to the Holders of the Class P Certificates, up to an
amount equal to the lesser of (A) the then outstanding Class Principal Balance
of such Class P Certificates and (B) the remaining Principal Distribution Amount
for such Distribution Dates;
(xlv) to reimburse the Holders of the Class P Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class P Certificates and for which no
reimbursement has previously been received;
(xlvi) to pay interest to the Holders of the Class Q
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class Q Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xlvii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N-1, Class N-2, Class O and Class P Certificates have been
reduced to zero, to pay principal to the Holders of the Class Q Certificates, up
to an amount equal to the lesser of (A) the then outstanding Class Principal
Balance of such Class Q Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Dates;
201
(xlviii) to reimburse the Holders of the Class Q Certificates, up
to an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class Q Certificates and for which no
reimbursement has previously been received;
(xlix) to make payments to the Holders of the Class R-I
Certificates up to the amount of the Class R-I Distribution Amount for such
Distribution Date;
(l) to make payments to the Holders of the Class R-II
Certificates up to the amount of the Class R-II Distribution Amount for such
Distribution Date; and
(li) to pay to the Holders of the Class R-III Certificates the
balance, if any, of the Available Distribution Amount for such Distribution
Date;
provided, that on the Final Distribution Date, the payments of principal to be
made pursuant to any of clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii), (xli), (xliv) and (xlvii)
above with respect to any Class of Principal Balance Certificates, will be so
made to the Holders thereof, up to an amount equal to the entire then
outstanding Class Principal Balance of such Class of Certificates. References to
"remaining Principal Distribution Amount" in any of clauses (ii), (v), (viii),
(xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii),
(xli), (xliv) and (xlvii) above, in connection with the payments of principal to
be made to the Holders of any Class of Principal Balance Certificates, shall be
to the Principal Distribution Amount for such Distribution Date, net of any
payments of principal made in respect thereof to the Holders of each Class of
Principal Balance Certificates that have a higher Payment Priority.
On each Distribution Date, the Trustee shall withdraw any amounts then on
deposit in the Distribution Account that represent Prepayment Premiums collected
during or prior to the related Collection Period and shall distribute such
amounts, in each case, subject to available funds, as additional interest, as
follows:
(i) to the Holders of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G and Class H Certificates up to an amount equal to, in
the case of each such Class, the product of (a) such Prepayment Premiums, (b)
the applicable Discount Rate Fraction and (c) the Principal Allocation Fraction
of such Class; and
(ii) then, to the Holders of the Class X-1 Certificates.
All of the foregoing distributions to be made from the Distribution Account
on any Distribution Date with respect to the REMIC III Certificates shall be
deemed made from the payments deemed made to REMIC II in respect of the REMIC II
Regular Interests on such Distribution Date pursuant to Section 4.01(b).
On each Distribution Date, the Trustee shall withdraw from the Distribution
Account, as Grantor Trust Assets, any amounts that represent Excess Interest
actually collected on any ARD Loans and any related REO Loans during the related
Collection Period and shall distribute with respect to their interests in the
Grantor Trust, such amounts to the holders of the Class P Certificates, without
regard to whether any such Class is entitled to distributions of interest or
202
principal on such Distribution Date (whether by reason of its Class Principal
Balance having been reduced to zero, by reason of it not yet being entitled to
distributions of principal, or for any other reason).
On each Distribution Date, the Trustee shall withdraw amounts from the
Excess Liquidation Proceeds Reserve Account and shall distribute such amounts in
the following priority:
(i) first, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) up to an amount equal
to all Realized Losses or Additional Trust Fund Expenses, if any, previously
deemed allocated to them and unreimbursed after application of the Available
Distribution Amount for such Distribution Date;
(ii) second, for distribution to the Special Servicer as
additional servicing compensation, the excess, if any, of (x) the balance of the
Excess Liquidation Proceeds Reserve Account on such Distribution Date over (y)
the aggregate Certificate Principal Balance of the Principal Balance
Certificates as of such Distribution Date;
(iii) third, upon the reduction of the aggregate Class Principal
Balance of the Principal Balance Certificates to zero, to pay any amounts
remaining on deposit in such account to the Special Servicer as additional
compensation.
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided in the last paragraph of Section 4.01(c) or as provided
below, all such distributions with respect to each Class on each Distribution
Date shall be made to the Certificateholders of the respective Class of record
at the close of business on the related Record Date and shall be made by wire
transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates) or otherwise by check mailed to the address
of such Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to such Certificate) will be made in like manner, but only
upon presentation and surrender of such Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Any distribution that is to be
made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Registrar or to any other address of
which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the
203
amount of such distribution to the accounts of its Depository Participants in
accordance with its normal procedures. Each Depository Participant shall be
responsible for disbursing such distribution to the Certificate Owners that it
represents and to each indirect participating brokerage firm (a "brokerage firm"
or "indirect participating firm") for which it acts as agent. Each brokerage
firm shall be responsible for disbursing funds to the Certificate Owners that it
represents. None of the Trustee, the Certificate Registrar, the Depositor, the
Master Servicer or the Special Servicer shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund in respect of their Certificates, and all rights
and interests of the Certificateholders in and to such distributions, shall be
as set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts properly previously
distributed on the Certificates. Distributions in reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated to a Class of
Certificates shall not constitute distributions of principal and shall not
result in a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall, as
soon as practicable in the month in which such Distribution Date occurs, mail to
each Holder of such Class of Certificates as of the date of mailing a notice to
the effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the offices of the
Certificate Registrar or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the applicable Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates, shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the
204
non-tendering Certificateholders shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
hereunder by the Trustee as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with this
Section 4.01(g). If all of the Certificates shall not have been surrendered for
cancellation by the second anniversary of the delivery of the second notice, the
Trustee shall distribute all unclaimed funds and other assets which remain
subject hereto in accordance with applicable laws.
(h) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. All amounts withheld shall be deemed to have been paid to
such Certificateholders.
SECTION 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer.
(a) Subject to Section 8.02(v), based on information received from the
Master Servicer, on each Distribution Date, the Trustee shall provide or make
available as provided herein to all of the Holders of each Class of Certificates
(and, in the case of a Class of Book-Entry Certificates, to each Person that
provides the Trustee with an Investor Certification), to the parties hereto and
to the Rating Agencies written reports, including reports in substantially the
form attached hereto as Exhibit G (the "Distribution Date Statement"), setting
forth, among other things, the following information:
(i) the amount of distributions, if any, made on such
Distribution Date to the holders of each Class of Principal Balance Certificates
and applied to reduce the respective Class Principal Balances thereof;
(ii) the amount of distributions, if any, made on such
Distribution Date to the Holders of each Class of REMIC III Regular Certificates
allocable to (A) Distributable Certificate Interest, (B) Prepayment Premiums and
(C) Excess Interest;
(iii) the amount of any distributions made on such Distribution
Date to the Holders of each Class of Residual Certificates;
(iv) the aggregate amount of outstanding Delinquency Advances,
with respect to the Mortgage Pool and with respect to each Loan Group, as of the
related Determination Date;
(v) the aggregate amount of Servicing Fees retained by or paid to
the Master Servicer and the Special Servicer in respect of the related
Collection Period;
(vi) the aggregate Stated Principal Balance of the Mortgage Pool
and of each Loan Group immediately before and after such Distribution Date and
the percentage of the
205
Cut-off Date Principal Balance of the Mortgage Pool and of each Loan Group which
remains outstanding immediately after such Distribution Date;
(vii) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the outstanding
Mortgage Loans in the Mortgage Pool and with respect to each Loan Group at the
close of business on the related Determination Date;
(viii) as of the Determination Date, the number and aggregate
unpaid principal balance of Mortgage Loans in the Mortgage Pool (A) delinquent
one month, (B) delinquent two months, (C) delinquent three or more months, (D)
that are Specially Serviced Mortgage Loans but are not delinquent or (E) as to
which foreclosure proceedings have been commenced;
(ix) with respect to the Mortgage Pool, the aggregate Stated
Principal Balance of Mortgage Loans as to which the related borrower is subject
or is expected to be subject to a bankruptcy proceeding;
(x) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection Period,
the Stated Principal Balance and unpaid principal balance of such Mortgage Loan
as of the date such Mortgaged Property became an REO Property and the most
recently determined Appraised Value and date upon which the Appraisal was
performed;
(xi) as to any Mortgage Loan repurchased or otherwise liquidated
or disposed of during the related Collection Period, the loan number thereof and
the amount of any Liquidation Proceeds and/or other amounts, if any, received
thereon during the related Collection Period and the portion thereof included in
the Available Distribution Amount for such Distribution Date;
(xii) with respect to any REO Property included in the Trust Fund
as of the close of business on the last day of the related Collection Period,
the loan number of the related Mortgage Loan, the book value of such REO
Property and the amount of any income collected with respect to such REO
Property (net of related expenses) and other amounts, if any, received on such
REO Property during the related Collection Period and the portion thereof
included in the Available Distribution Amount for such Distribution Date and the
most recently determined Appraised Value and date upon which the Appraisal was
performed;
(xiii) with respect to any REO Property sold or otherwise
disposed of during the related Collection Period, the loan number of the related
Mortgage Loan, and the amount of Liquidation Proceeds and other amounts, if any,
received in respect of such REO Property during the related Collection Period,
the portion thereof included in the Available Distribution Amount for such
Distribution Date and the balance of the Excess Liquidation Proceeds Reserve
Account for such Distribution Date;
(xiv) the Distributable Certificate Interest in respect of each
Class of REMIC III Regular Certificates for such Distribution Date;
206
(xv) any unpaid Distributable Certificate Interest in respect of
each Class of REMIC III Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xvi) the Pass-Through Rate for each Class of REMIC III Regular
Certificates for such Distribution Date;
(xvii) the original Class Principal Balance or Class Notional
Amount as of the Closing Date and the Class Principal Balance or Class Notional
Amount, as the case may be, of each Class of REMIC III Regular Certificates
immediately before and immediately after such Distribution Date, separately
identifying any reduction in the Class Principal Balance or Class Notional
Amount, as the case may be, of each such Class due to Realized Losses and
Additional Trust Fund Expenses;
(xviii) the Certificate Factor for each Class of REMIC III
Regular Certificates immediately following such Distribution Date;
(xix) the Principal Distribution Amount, the Loan Group 1
Principal Distribution Amount and the Loan Group 2 Principal Distribution Amount
for such Distribution Date;
(xx) the aggregate amount of Principal Prepayments made during
the related Collection Period, and the aggregate amount of any Prepayment
Interest Excesses received and Prepayment Interest Shortfalls incurred in
connection therewith;
(xxi) the aggregate amount of Realized Losses and Additional
Trust Fund Expenses, if any, incurred with respect to the Trust Fund during the
related Collection Period;
(xxii) any Appraisal Reduction Amounts on a loan-by-loan basis,
and the total Appraisal Reduction Amounts, as of the related Determination Date;
and
(xxiii) such additional information as contemplated by Exhibit G
hereto.
In the case of information furnished pursuant to subclauses (i), (ii), (iii) and
(xvii) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per single Certificate of a
specified minimum denomination. The form of any Distribution Date Statement may
change over time.
The Trustee shall make available each month to any interested person the
related Distribution Date Statement, the CMSA Bond Level File, the CMSA
Collateral Summary File and the CMSA Loan Setup File via its internet website
which is initially located at "xxx.xxxxxxxx.xxx." In addition, the Trustee shall
make available each month, on a restricted basis, solely to each Privileged
Person, (i) the CMSA Loan Periodic Update File delivered for each Distribution
Date, the CMSA Property File, the CMSA Comparative Financial Status Report and
the CMSA Financial File, (ii) the Servicer Reports, and (iii) as a convenience
to such Privileged Persons (and not in furtherance of the distribution thereof
under the securities laws), the Prospectus and this Agreement. At the direction
of the Depositor, the Trustee shall remove
207
any or all of such restrictions and make any or all of such information
available to any person. The Trustee makes no representations or warranties as
to the accuracy or completeness of such information and assumes no
responsibility therefor. In addition, the Trustee may disclaim responsibility
for any information distributed by the Trustee for which it is not the original
source. In connection with providing access to the Trustee's internet website,
the Trustee may require registration and acceptance of a disclaimer. The Trustee
shall not be liable for the dissemination of information in accordance with this
Agreement.
The Trustee may provide such information through means other than (and in
lieu of) its website; provided, that (i) GMACCM shall have consented to such
alternative means and (ii) Certificateholders shall have received notice of such
alternative means.
The provisions in this Section shall not limit the Master Servicer's
ability to make accessible certain information regarding the Mortgage Loans and
Xxxxxxxx Fashion Center Companion Loans at a website maintained by the Master
Servicer.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Certificate a statement containing the information as to the
applicable Class set forth in clauses (i), (ii) and (iii) of the description of
Distribution Date Statements above aggregated for such calendar year or
applicable portion thereof during which such person was a Certificateholder,
together with such other information as the Trustee determines to be necessary
to enable Certificateholders to prepare their tax returns for such calendar
year. Such obligation of the Trustee shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time are in
force.
Upon filing with the Internal Revenue Service, the Trustee shall furnish to
the Holders of the Residual Certificates the Form 1066 and shall furnish their
respective Schedules Q thereto at the times required by the Code or the Internal
Revenue Service, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Residual Certificates may reasonably request.
The specification of information to be furnished by the Trustee to the
Certificateholders in this Section 4.02 (and any other terms of this Agreement
requiring or calling for delivery or reporting of information by the Trustee to
Certificateholders and Certificate Owners) shall not limit the Trustee in
furnishing, and the Trustee is hereby authorized to furnish, to
Certificateholders, Certificate Owners and/or to the public any other
information (such other information, collectively, "Additional Information")
with respect to the Mortgage Loans (including the Xxxxxxxx Fashion Center A/B
Loan), the Mortgaged Properties or the Trust Fund as may be provided to it by
the Depositor, the Master Servicer or the Special Servicer or gathered by it in
any investigation or other manner from time to time; provided, that (A) while
there exists any Event of Default, any such Additional Information shall only be
furnished with the consent or at the request of the Depositor (except pursuant
to clause (E) below), (B) the Trustee shall be entitled to indicate the source
of all information furnished by it, and the Trustee may affix thereto any
disclaimer it deems appropriate in its sole discretion (together with any
warnings as to the confidential nature and/or the uses of such information as it
may, in its sole discretion, determine appropriate), (C) the Trustee may notify
Certificateholders and Certificate Owners of the
208
availability of any such information in any manner as it, in its sole
discretion, may determine, (D) the Trustee shall be entitled (but not obligated)
to require payment from each recipient of a reasonable fee for, and its
out-of-pocket expenses incurred in connection with, the collection, assembly,
reproduction or delivery of any such Additional Information, (E) without the
consent of the Depositor, the Trustee may, in its sole discretion, furnish
Additional Information to a Rating Agency in any instance, and to the
Certificateholders, Certificate Owners and/or the public-at-large if it
determines that the furnishing of such information would assist in the
evaluation of the investment characteristics or valuation of the Certificates or
would be in the best interests of the Certificateholders or is required by
applicable law and, in the case of any Additional Information requested by a
Certificate Owner or Certificateholder, such Certificate Owner or
Certificateholder has delivered an executed certificate in the form of Exhibit H
hereto and (F) the Trustee shall be entitled to distribute or make available
such Additional Information in accordance with such reasonable rules and
procedures as it may deem necessary or appropriate (which may include the
requirement that an agreement that provides such information shall be used
solely for purposes of evaluating the investment characteristics or valuation of
the Certificates be executed by the recipient, if and to the extent the Trustee
deems the same to be necessary or appropriate). Nothing herein shall be
construed to impose upon the Trustee any obligation or duty to furnish or
distribute any Additional Information to any Person in any instance, and the
Trustee shall neither have any liability for furnishing nor for refraining from
furnishing Additional Information in any instance. The Trustee shall be entitled
(but not required) to request and receive direction from the Depositor as to the
manner of delivery of any such Additional Information, if and to the extent the
Trustee deems necessary or advisable, and to require that any consent, direction
or request given to it pursuant to this Section be made in writing.
Upon the authorization of the Depositor, the Trustee shall make available
to Bloomberg Financial Markets, L.P. ("Bloomberg") or such other vendor chosen
by the Depositor, all the electronic reports delivered or made available
pursuant to this Section 4.02(a) to the Certificateholders and Certificate
Owners using a format and media mutually acceptable to the Trustee and
Bloomberg.
(b) No later than the Business Day prior to each Distribution Date,
subject to the last paragraph of this subsection (b), the Master Servicer shall
deliver or cause to be delivered to the Trustee (and, if the Master Servicer is
not the Special Servicer, the Trustee shall deliver to the Special Servicer) and
the Xxxxxxxx Fashion Center Companion Paying Agent in electronic form mutually
acceptable to the Trustee and the Master Servicer the following reports or
information: (i) a CMSA Delinquent Loan Status Report, (ii) a CMSA REO Status
Report, (iii) a CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, (iv) a CMSA Historical Liquidation Report, (v) the CMSA Servicer Watch
List, (vi) the CMSA Financial File, (vi) the CMSA Property File and (viii) the
CMSA Comparative Financial Status Report.
No later than the Business Day prior to each Distribution Date, the Master
Servicer will deliver to the Trustee (by electronic means) the CMSA Comparative
Financial Status Report for each Mortgage Loan (other than any Credit Lease
Loans) or related Mortgaged Property as of the Determination Date immediately
preceding the preparation of such report for each of the following three periods
(but only to the extent the related borrower is required by the Mortgage to
deliver and does deliver, or otherwise agrees to provide and does provide, such
information):
209
(i) the most current available year-to-date; (ii) each of the previous two full
fiscal years stated separately (to the extent such information is in the Master
Servicer's possession); and (iii) the "base year" (representing the original
analysis of information used as of the Cut-Off Date).
No later than 12:00 noon (New York City time) on the second Business Day
prior to each Distribution Date, the Master Servicer will deliver to the Trustee
a CMSA Loan Periodic Update File setting forth certain information with respect
to the Mortgage Loans, Xxxxxxxx Fashion Center Companion Loans and Mortgaged
Properties and a single report (the "Collection Report") setting forth, among
other things, the information specified in clauses (i) through (vi) below (the
amounts and allocations of payments, collections, fees and expenses with respect
to Specially Serviced Mortgage Loans and REO Properties to be based upon the
report to be delivered by the Special Servicer to the Master Servicer on the
second Business Day after the related Determination Date, in the form required
by Section 4.02(c) below):
(i) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account in respect of such Distribution
Date that is allocable to principal on or in respect of the Mortgage Loans and
any REO Loans, separately identifying the aggregate amount of any Principal
Prepayments included therein, and (if different) the Principal Distribution
Amount for the immediately succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account in respect of such Distribution
Date that is allocable to (A) interest on or in respect of the Mortgage Loans
and any REO Loans, (B) Prepayment Premiums and (C) Excess Interest;
(iii) the aggregate amount of any Delinquency Advances made
pursuant to Section 4.03 of this Agreement as of the end of the prior calendar
month that were included in amounts deposited in the Distribution Account;
(iv) the information required to be included in the Distribution
Date Statement for the next succeeding Distribution Date and described in
clauses (v) through (xiii) and (xix) through (xxiii) of the description of the
Distribution Date Statement in Section 4.02(a);
(v) the loan number and the unpaid principal balance as of the
close of business on such Determination Date of each Specially Serviced Mortgage
Loan and each other Defaulted Mortgage Loan; and
(vi) such other information on a Mortgage Loan-by-Mortgage Loan
or REO Property-by-REO Property basis as the Trustee or the Depositor shall
reasonably request in writing (including, without limitation, information with
respect to any modifications of any Mortgage Loan, any Mortgage Loans in default
or foreclosure, the operation and disposition of REO Property and the assumption
of any Mortgage Loan).
On the date on which the report described above is delivered to the
Trustee, the Master Servicer shall also deliver or cause to be delivered to the
Trustee (i) a report, in form reasonably acceptable to the Trustee, containing
the information with respect to the Mortgage Pool necessary for the Trustee to
prepare with respect to the Mortgage Pool any additional schedules and tables
required to be made available by the Trustee pursuant to Section 4.02(a), and
(ii) an
210
updated Mortgage Loan Schedule, in each case reflecting the changes in the
Mortgage Pool during the related Collection Period. In addition, on such date,
the Master Servicer shall also deliver or cause to be delivered to the Xxxxxxxx
Fashion Center Companion Paying Agent a report, in form reasonably acceptable to
the Xxxxxxxx Fashion Center Companion Paying Agent, containing the information
necessary for the Xxxxxxxx Fashion Center Companion Paying Agent to prepare the
report specified in Section 4.05(a).
In addition, the Master Servicer is also required to perform with respect
to each Mortgaged Property and REO Property (except any Mortgaged Property
securing the Oakbrook Center Mortgage Loan or any Credit Lease Loan):
(1) Within 30 days after receipt of a quarterly operating statement, if
any, commencing with the calendar quarter ended June 30, 2003, a CMSA Operating
Statement Analysis Report presenting the computation made in accordance with the
methodology set forth in Exhibit F (but only to the extent the related borrower
is required by the Mortgage to deliver and does deliver, or otherwise agrees to
provide and does provide, such information) for such Mortgaged Property or REO
Property as of the end of such calendar quarter. The Master Servicer will
deliver to the Trustee by electronic means the CMSA Operating Statement Analysis
Report upon request; and
(2) Within 30 days after receipt by the Master Servicer of an annual
operating statement, a CMSA NOI Adjustment Worksheet (but only to the extent the
related borrower is required by the Mortgage to deliver and does deliver, or
otherwise agrees to provide and does provide, such information), presenting the
computation made in accordance with the methodology described in Exhibit F to
"normalize" the full year net operating income and debt service coverage numbers
used by the Master Servicer in preparing the CMSA Comparative Financial Status
Report above. The Master Servicer will deliver to the Trustee by electronic
means the CMSA NOI Adjustment Worksheet upon request.
Upon request, the Trustee shall deliver or shall cause to be delivered to
each Certificateholder, to each party hereto, to any Underwriter, to the Rating
Agencies, and to each Person that provides the Trustee with an Investor
Certification a copy of the CMSA Operating Statement Analysis Report and CMSA
NOI Adjustment Worksheet most recently performed by the Master Servicer with
respect to any Mortgage Loan and delivered to the Trustee.
Upon request (and in any event, not more frequently than once per month),
the Master Servicer shall forward to the Trustee a statement, setting forth the
status of the Certificate Account as of the close of business on such Master
Servicer Remittance Date, stating that all remittances to the Trustee required
by this Agreement to be made by the Master Servicer have been made (or, in the
case of any such required remittance that has not been made by the Master
Servicer, specifying the nature and status thereof) and showing, for the period
from the preceding Master Servicer Remittance Date (or, in the case of the first
Master Servicer Remittance Date, from the Cut-off Date) to such Master Servicer
Remittance Date, the aggregate of deposits into and withdrawals from the
Certificate Account for each category of deposit specified in Section 3.04(a)
and each category of withdrawal specified in Section 3.05(a). The Master
Servicer shall also deliver to the Trustee, upon reasonable request of the
Trustee, any and all additional information relating to the Mortgage Pool in the
possession of the Master Servicer (which
211
information shall be based upon reports delivered to the Master Servicer by the
Special Servicer with respect to Specially Serviced Mortgage Loans and REO
Properties).
With respect to any Mortgaged Property constituting collateral for a Credit
Lease Loan, not later than the third Business Day following each Determination
Date, the Master Servicer will deliver to the Trustee a Current Ratings Report
with respect to each Tenant and any Guarantor.
The Master Servicer, on the first Business Day following each Determination
Date, shall forward to the Special Servicer all information collected by the
Master Servicer which the Special Servicer is required to include in the reports
delivered by the Special Servicer pursuant to Section 4.02(c) below. Further,
the Master Servicer shall cooperate with the Special Servicer and provide the
Special Servicer with the information in the possession of the Master Servicer
reasonably requested by the Special Servicer, in writing, to the extent required
to allow the Special Servicer to perform its obligations under this Agreement
with respect to those Mortgage Loans and Xxxxxxxx Fashion Center Companion Loans
serviced by the Master Servicer.
The obligation of the Master Servicer to deliver the reports required to be
delivered by it pursuant to this subsection is subject to the Master Servicer
having received from the Special Servicer in a timely manner the related reports
and information necessary or required to enable the Master Servicer to prepare
and deliver such reports. The Master Servicer shall not be responsible for the
accuracy or content of any report, document or information furnished by the
Special Servicer to the Master Servicer pursuant to this Agreement and accepted
by the Master Servicer in good faith pursuant to this Agreement.
(c) On the second Business Day after each Determination Date, the
Special Servicer shall forward to the Master Servicer, for each Specially
Serviced Mortgage Loan and REO Property, reports containing all information the
Master Servicer will be required to include in the other reports that the Master
Servicer is obligated to deliver to the Trustee pursuant to Section 4.02(b), to
the extent such information relates to any Specially Serviced Mortgage Loan or
any REO Property. The Special Servicer shall also deliver to the Trustee, upon
the reasonable written request of the Trustee, any and all additional
information in the possession of the Special Servicer relating to the Specially
Serviced Mortgage Loans and the REO Properties.
The Special Servicer shall cooperate with the Master Servicer and provide
the Master Servicer with the information in the possession of the Special
Servicer reasonably requested by the Master Servicer, in writing, to the extent
required to allow the Master Servicer to perform its obligations under this
Agreement with respect to the Specially Serviced Mortgage Loans and REO
Properties. Additional information regarding the Specially Serviced Mortgage
Loans and REO Properties, including, without limitation, any financial or
occupancy information (including lease summaries) provided to the Special
Servicer by the Mortgagors or otherwise obtained, shall be delivered to the
Master Servicer, within ten days of receipt.
(d) The Master Servicer and the Special Servicer may make available to
Certificate Owners who have certified to the Master Servicer their beneficial
ownership of any Certificate, or prospective Certificate Owners who provide
appropriate confirmation that they are
212
prospective Certificate Owners who intend to keep any information confidential,
copies of any reports or files prepared by the Servicer pursuant to this
Agreement.
(e) Each of the Master Servicer and Special Servicer may make
information concerning the Mortgage Loans and Xxxxxxxx Fashion Center Companion
Loans available on any website that it has established.
(f) The Master Servicer or the Special Servicer, as applicable, may,
from time to time in its sole discretion, answer questions from a Certificate
Owner which pertain to the performance and servicing of the Mortgage Loans
and/or REO Properties for which the Master Servicer or Special Servicer, as the
case may be, is responsible. The Master Servicer or the Special Servicer, as
applicable, as a condition to answering such questions, shall require, among
other things, that the Certificate Owner enter into a confidentiality agreement
with the Master Servicer or the Special Servicer, as the case may be, in the
form attached hereto as Exhibit H-2 and sign an Investor Certification in the
form attached hereto as Exhibit H-1. Neither the Master Servicer nor the Special
Servicer shall provide any information or disclosures in violation of any
applicable law, rule or regulation.
(g) The Master Servicer will deliver or cause to be delivered to the
Trustee copies of all reports and other information received by the Master
Servicer from the 2003-TOP9 Master Servicer of the 2003-TOP9 Trustee with
respect to the Oakbrook Center Mortgage Loan. To the extent that any such
information relates to aggregated or Mortgage Pool information, it shall be
included in the Master Servicer Reports provided under this Agreement, and to
the extent such information relates solely to the Oakbrook Center Mortgage Loan
or the related Mortgaged Property, it shall be forwarded separately. For
purposes of the content of any reports or other information with respect to the
Oakbrook Center Mortgage Loan (but only with respect to reports or other
information), the "Determination Date" shall be the 4th Business Day prior to
the Distribution Date in the month in which such Distribution Date occurs.
SECTION 4.03 Delinquency Advances.
(a) On each Delinquency Advance Date, the Master Servicer shall either
(i) deposit into the Certificate Account from its own funds an amount equal to
the aggregate amount of Delinquency Advances (including with respect to the
Oakbrook Center Mortgage Loan), if any, to be made in respect of the related
Distribution Date, (ii) apply amounts held in the Certificate Account for future
distribution to Certificateholders in subsequent months in discharge of any such
obligation to make Delinquency Advances, or (iii) make Delinquency Advances in
the form of any combination of amounts specified in clauses (i) and (ii)
aggregating the total amount of Delinquency Advances to be made; provided, that
if Late Collections (net of related Workout Fees) of the delinquent Monthly
Payments for which Delinquency Advances are to be made for the related
Distribution Date, are on deposit in the Certificate Account and available to
make such Advances, the Master Servicer shall utilize such Late Collections to
make such Advances pursuant to clause (ii) above. Any amounts held in the
Certificate Account or with respect to the Xxxxxxxx Fashion Center Mortgage
Loan, the Xxxxxxxx Fashion Center Custodial Account for future distribution and
so used to make Delinquency Advances shall be appropriately reflected in the
Master Servicer's records and replaced by the Master Servicer by deposit in the
Certificate Account or with respect to the Xxxxxxxx Fashion Center Mortgage
213
Loan, the Xxxxxxxx Fashion Center Custodial Account on or before the next
succeeding Determination Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and interest in respect
of which such Delinquency Advances were made). If, as of 3:00 p.m. (New York
City time) on any Master Servicer Remittance Date, the Trustee shall not have
received any Delinquency Advance required to be made by the Master Servicer
pursuant to this Section 4.03(a) (and the Master Servicer shall not have
delivered to the Trustee the requisite Officer's Certificate and documentation
related to a determination of nonrecoverability of a Delinquency Advance), then
the Trustee shall provide notice of such failure to a Servicing Officer of the
Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000
(or such alternative number provided by the Master Servicer to the Trustee in
writing) and by telephone at telephone no. (000) 000-0000 (Attention: Master
Servicing Manager) (or such alternative number provided by the Master Servicer
to the Trustee in writing) as soon as possible, but in any event before 5:00
p.m. (New York City time) on such day. If after such notice the Trustee does not
receive the full amount of such Delinquency Advances by 11:00 a.m. (New York
City time) on the Business Day immediately following such Master Servicer
Remittance Date, then the Trustee shall make the portion of such Delinquency
Advances that was required to be, but was not, made by the Master Servicer
pursuant to this Section 4.03(a). If the Trustee fails to make a Delinquency
Advance required to be made by it hereunder, the Fiscal Agent shall make such
advance no later than 1:00 p.m. (New York City time) on the Business Day
immediately following such Master Servicer Remittance Date. The making of such
Advance by the Fiscal Agent shall cure the failure by the Trustee to make such
Advance. No Delinquency Advances shall be made by the Master Servicer, the
Trustee or the Fiscal Agent with respect to either of the Xxxxxxxx Fashion
Center Companion Loans.
(b) The aggregate amount of Delinquency Advances to be made by the
Master Servicer in respect of the Mortgage Loans (including, without limitation,
Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Loans for any Distribution Date
(including the Oakbrook Center Mortgage Loan and any REO Loan related to the
Oakbrook Center Mortgage Loan) shall equal, subject to subsection (c) below, the
aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed
Monthly Payments, in each case net of related Workout Fees payable hereunder,
that were due or deemed due, as the case may be, in respect thereof on their
respective Due Dates during the same month as such Distribution Date and that
were not paid by or on behalf of the related Mortgagors or otherwise collected
as of the close of business on the later of the related Due Date or the last day
of the related Collection Period. Notwithstanding the foregoing, (i) if an
Appraisal Reduction Amount exists with respect to any Mortgage Loan (other than
the Oakbrook Center Mortgage Loan) that is a Required Appraisal Loan or (ii) if
the Master Servicer has been notified by the 2003-TOP9 Master Servicer than an
Appraisal Reduction Amount exists with respect to the Oakbrook Center Mortgage
Loan and that the Oakbrook Center Mortgage Loan is a "Required Appraisal Loan"
under the 2003-TOP9 Pooling and Servicing Agreement, then, in the event of
subsequent delinquencies thereon, the interest portion of the Delinquency
Advance in respect of such Required Appraisal Loan or Oakbrook Center Mortgage
Loan, as the case may be, for the related Distribution Date shall be reduced (it
being herein acknowledged that there shall be no reduction in the principal
portion of such Delinquency Advance) by the product of (i) the amount of the
interest portion of such Delinquency Advance for such Required Appraisal Loan or
the Oakbrook Center Mortgage Loan, as applicable, for such Distribution Date
without regard to this sentence, multiplied by (ii) a fraction, expressed as a
percentage, the
214
numerator of which is equal to the Stated Principal Balance of such Required
Appraisal Loan or the Oakbrook Center Mortgage Loan, as applicable, immediately
prior to such Distribution Date, net of the related Appraisal Reduction Amount,
if any, and the denominator of which is equal to the Stated Principal Balance of
such Required Appraisal Loan or the Oakbrook Center Mortgage Loan, as
applicable, immediately prior to such Distribution Date.
Pursuant to the 2003-TOP9 Pooling and Servicing Agreement, the 2003-TOP9
Master Servicer is obligated to make Delinquency Advances with respect to the
Oakbrook Center Mortgage Loan and the Oakbrook Center Companion Loans.
Notwithstanding anything herein to the contrary, the Master Servicer shall not
be required to make any Delinquency Advance with respect to the Oakbrook Center
Mortgage Loan unless and until the Master Servicer has received timely notice
pursuant to the first Oakbrook Center Letter Agreement from either of the
2003-TOP9 Master Servicer or the 2003-TOP9 Trustee of any failure of the
2003-TOP9 Master Servicer to make an advance required under the 2003-TOP9
Pooling and Servicing Agreement by 3:00 p.m. (New York City time) one Business
Day prior to the Delinquency Advance Date. Upon receipt of notice that the
2003-TOP9 Master Servicer has failed to make a Delinquency Advance with respect
to the Oakbrook Center Mortgage Loan, the Master Servicer shall make such
Delinquency Advance with respect to the Oakbrook Center Mortgage Loan unless the
Master Servicer determines that such Delinquency Advance, if made, would be a
Nonrecoverable Delinquency Advance.
(c) Notwithstanding anything herein to the contrary, no Delinquency
Advance shall be required to be made hereunder if such Delinquency Advance
would, if made, constitute a Nonrecoverable Delinquency Advance. In addition,
Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section
3.05(a) out of general collections on the Mortgage Loans and REO Properties on
deposit in the Certificate Account. The determination by the Master Servicer or,
if applicable, the Trustee, that it has made a Nonrecoverable Delinquency
Advance or that any proposed Delinquency Advance, if made, would constitute a
Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's
Certificate delivered promptly (and, in any event, in the case of a proposed
Delinquency Advance to be made by the Master Servicer, no less than two Business
Days prior to the related Delinquency Advance Date) by the Master Servicer to
the Trustee (or, if applicable, retained thereby) and the Depositor, setting
forth the basis for such determination, together with (if such determination is
prior to the liquidation of the related Mortgage Loan or REO Property) a copy of
an Appraisal of the related Mortgaged Property or REO Property, as the case may
be, which shall have been performed within the twelve months preceding such
determination, and further accompanied by any other information that the Master
Servicer or the Special Servicer may have obtained and that supports such
determination. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to
its reasonable and good faith determination that such Appraisal will demonstrate
the nonrecoverability of the related Advance, obtain an Appraisal for such
purpose at the expense of the Trust Fund. The Trustee and the Fiscal Agent shall
be entitled to rely on any determination of nonrecoverability that may have been
made by the Master Servicer or the Special Servicer with respect to a particular
Delinquency Advance, and the Master Servicer shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Special
Servicer with respect to a particular Delinquency Advance.
215
With respect to the Xxxxxxxx Fashion Center Mortgage Loan, the Master
Servicer shall make its determination that it has made a Nonrecoverable
Delinquency Advance or that any proposed Delinquency Advance, if made, would
constitute a Nonrecoverable Delinquency Advance in accordance with this Section
4.03(c) and independently of any determination made by any servicer of the
Xxxxxxxx Fashion Center A-2 Note following the securitization of the Xxxxxxxx
Fashion Center A-2 Note.
With respect to the Xxxxxxxx Fashion Center Mortgage Loan, the Master
Servicer shall make its determination that it has made a Nonrecoverable
Delinquency Advance or that any proposed Delinquency Advance, if made, would
constitute a Nonrecoverable Delinquency Advance no later than the earlier of (i)
the Delinquency Advance Date and (ii) the delinquency advance date for the
Xxxxxxxx Fashion Center A-2 Note following its securitization. The Master
Servicer shall not make a Delinquency Advance with respect to the Xxxxxxxx
Fashion Center Mortgage Loan if any servicer of the Xxxxxxxx Fashion Center A-2
Note has determined that it has made a nonrecoverable delinquency advance on the
Xxxxxxxx Fashion Center A-2 Note or that any proposed delinquency advance, if
made, would constitute a nonrecoverable delinquency advance. Notwithstanding the
foregoing, in the event that the Master Servicer has received written notice
that the master servicer of the securitization relating to the Xxxxxxxx Fashion
Center A-2 Note is no longer an "approved" servicer by Xxxxx'x and Standard &
Poor's, the Master Servicer shall not be required to abide by any determination
of nonrecoverability made by such master servicer as described in the preceding
sentence.
Following a securitization of the Xxxxxxxx Fashion Center A-2 Note, the
Master Servicer shall be required to deliver to any Xxxxxxxx Fashion Center A-2
Master Servicer: (i) any loan-related information applicable to a determination
that an Advance is or would be a Nonrecoverable Advance, in the form received,
within two Business Days of receipt, (ii) notice of any Advance it makes with
respect to the Xxxxxxxx Fashion Center A/B Loan; and (iii) notice of any
determination that any Advance is a Nonrecoverable Advance within two Business
Days thereof.
(d) The Master Servicer, the Trustee and the Fiscal Agent shall each be
entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each Delinquency Advance made thereby (out of its
own funds) for so long as such Delinquency Advance is outstanding (or, if any
Delinquency Advance is required to be made in respect of a Monthly Payment on
any Mortgage Loan prior to its Due Date or the end of the grace period for such
Monthly Payment, for so long as such Delinquency Advance is outstanding
following the later of (i) such Due Date and (ii) the end of such grace period),
payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan
as to which such Delinquency Advance was made and, then, once such Delinquency
Advance has been reimbursed, out of general collections on the Mortgage Loans
and REO Properties pursuant to Section 3.05(a).
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Regular Interests pursuant to Section 4.01(a),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed
216
distributions) shall be reduced to equal the Stated Principal Balance of the
related Mortgage Loan or REO Loan or, if applicable, Replacement Mortgage
Loan(s) that will be outstanding immediately following such Distribution Date.
Such reductions shall be deemed to be an allocation of Realized Losses and
Additional Trust Fund Expenses.
(b) On each Distribution Date, following the payments deemed to be made
to REMIC III in respect of the REMIC II Regular Interests on such date pursuant
to Section 4.01(b), the Trustee shall determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of REMIC II Regular
Interests XX-0-0, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-2-A, LA-2-B, LA-2-C,
LA-2-D, LA1-1, LA1-2-A, LA1-2-B, LA1-2-C, LA1-2-D, LA1-2-E, LA1-2-F, LA1-2-G,
LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M, LA1-2-N, LB, LC, LD, LE,
LF-A, LF-B, LF-C, LG-A, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LK-A, LK-B,
LL-A, LL-B, LM, LN-1, LN-2, LO, LP and LQ exceeds (ii) an amount equal to the
aggregate Stated Principal Balance that will be outstanding immediately
following such Distribution Date. If such excess does exist, then the respective
Uncertificated Principal Balances of such REMIC II Regular Interests shall be
reduced such that the Uncertificated Principal Balance of each REMIC II Regular
Interest corresponds with the Certificate Principal Balance of the corresponding
Class of Principal Balance Certificates outstanding after the subsequent
adjustments made on such Distribution Date under Section 4.04(c) below;
provided, that (A) the aggregate Uncertificated Principal Balance of the REMIC
II Regular Interests XX-0-0, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J and LA-1-2-K shall correspond
with the Certificate Principal Balance of the Class A-1 Certificates and the
Uncertificated Principal Balances of the REMIC II Regular Interests XX-0-0,
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H,
LA-1-2-I, LA-1-2-J and LA-1-2-K shall be reduced in that order (with REMIC II
Regular Interest LA-1-1 being reduced first and REMIC II Regular Interest
LA-1-2-K being reduced last), (B) the aggregate Uncertificated Principal Balance
of the REMIC II Regular Interests XX-0-X, XX-0-X, XX-0-X and LA-2-D shall
correspond with the Certificate Principal Balance of the Class A-2 Certificates
and the Uncertificated Principal Balances of the REMIC II Regular Interests
XX-0-X, XX-0-X, XX-0-X and LA-2-D shall be reduced in that order (with REMIC II
Regular Interest LA-2-A being reduced first and REMIC II Regular Interest LA-2-D
being reduced last), (C) the aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests LA1-1, LA1-2-A, LA1-2-B, LA1-2-C, LA1-2-D, LA1-2-E,
LA1-2-F, LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M and
LA1-2-N shall correspond with the Certificate Principal Balance of the Class
A-1A Certificates and the Uncertificated Principal Balances of the REMIC II
Regular Interests LA1-1, LA1-2-A, LA1-2-B, LA1-2-C, LA1-2-D, LA1-2-E, LA1-2-F,
LA1-2-G, LA1-2-H, LA1-2-I, LA1-2-J, LA1-2-K, LA1-2-L, LA1-2-M and LA1-2-N shall
be reduced in that order (with REMIC II Regular Interest LA1-1 being reduced
first and REMIC II Regular Interest LA1-2-N being reduced last), (D) the
aggregate Uncertificated Principal Balance of the REMIC II Regular Interests
LF-A, LF-B and LF-C shall correspond with the Certificate Principal Balance of
the Class F Certificates and the Uncertificated Principal Balances of the REMIC
II Regular Interests LF-A, LF-B and LF-C shall be reduced in that order (with
REMIC II Regular Interest LF-A being reduced first and REMIC II Regular Interest
LF-C being reduced last), (E) the aggregate Uncertificated Principal Balance of
the REMIC II Regular Interests LG-A and LG-B shall correspond with the
Certificate Principal Balance of the Class G Certificates and the Uncertificated
Principal Balances of the
217
REMIC II Regular Interests LG-A and LG-B shall be reduced in that order (with
REMIC II Regular Interest LG-A being reduced first and REMIC II Regular Interest
LG-B being reduced second), (F) the aggregate Uncertificated Principal Balance
of the REMIC II Regular Interests LH-A, LH-B and LH-C shall correspond with the
Certificate Principal Balance of the Class H Certificates and the Uncertificated
Principal Balances of the REMIC II Regular Interests LH-A, LH-B and LH-C shall
be reduced in that order (with REMIC II Regular Interest LH-A being reduced
first and REMIC II Regular Interest LH-C being reduced last), (G) the aggregate
Uncertificated Principal Balance of the REMIC II Regular Interests LJ-A, LJ-B
and LJ-C shall correspond with the Certificate Principal Balance of the Class J
Certificates and the Uncertificated Principal Balances of the REMIC II Regular
Interests LJ-A, LJ-B and LJ-C shall be reduced in that order (with REMIC II
Regular Interest LJ-A being reduced first and REMIC II Regular Interest LJ-C
being reduced last), (H) the aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests LK-A and LK-B shall correspond with the Certificate
Principal Balance of the Class K Certificates and the Uncertificated Principal
Balances of the REMIC II Regular Interests LK-A and LK-B shall be reduced in
that order (with REMIC II Regular Interest LL-A being reduced first and REMIC II
Regular Interest LK-B being reduced second), and (I) the aggregate
Uncertificated Principal Balance of the REMIC II Regular Interests LL-A and LL-B
shall correspond with the Certificate Principal Balance of the Class L
Certificates and the Uncertificated Principal Balances of the REMIC II Regular
Interests LL-A and LL-B shall be reduced in that order (with REMIC II Regular
Interest LL-A being reduced first and REMIC II Regular Interest LL-B being
reduced second).
(c) On each Distribution Date, following the distributions to be made
to the Certificateholders on such date pursuant to Section 4.01(c), the Trustee
shall determine the amount, if any, by which (i) the then aggregate Certificate
Principal Balance of the Principal Balance Certificates, exceeds (ii) the
aggregate Stated Principal Balance of the Mortgage Loans that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class Q, Class P, Class O, Class
N-2, Class N-1, Class M, Class L, Class K, Class J, Class H, Class G, Class F,
Class E, Class D, Class C and Class B Certificates shall be reduced
sequentially, in that order, in each case, until the first to occur of such
excess being reduced to zero or the related Class Principal Balance being
reduced to zero. If, after the foregoing reductions, the amount described in
clause (i) of the second preceding sentence still exceeds the amount described
in clause (ii) of the second preceding sentence, then the respective Class
Principal Balances of the Class A-1, Class A-1A and Class A-2 Certificates shall
be reduced, pro rata in accordance with the relative sizes of the then
outstanding Class Principal Balances of such Classes of Certificates, until the
first to occur of such excess being reduced to zero or each such Class Principal
Balance being reduced to zero. Such reductions in the Class Principal Balances
of the respective Classes of Principal Balance Certificates shall be deemed to
be allocations of Realized Losses and Additional Trust Fund Expenses.
SECTION 4.05 Statements to Xxxxxxxx Fashion Center Companion Holders.
(a) With respect to the Xxxxxxxx Fashion Center A/B Loan, to the extent
the required information is provided to the Xxxxxxxx Fashion Center Companion
Paying Agent in a timely manner by the Master Servicer and the Special Servicer,
the Xxxxxxxx Fashion Center Companion Paying Agent shall prepare, or cause to be
prepared, on an ongoing basis a statement setting forth, to the extent
applicable to the Xxxxxxxx Fashion Center A/B Loan:
218
(i) For each Xxxxxxxx Fashion Center Companion Holder, (A) the
amount of the distribution from the Xxxxxxxx Fashion Center Custodial Account
allocable to principal and (B) separately identifying the amount of scheduled
principal payments, Balloon Payments, Principal Prepayments made at the option
of the Mortgagor or other Principal Prepayments (specifying the reason
therefor), net liquidation proceeds and foreclosure proceeds included therein
and information on distributions made with respect to the Xxxxxxxx Fashion
Center Mortgage Loan;
(ii) For each Xxxxxxxx Fashion Center Companion Holder, the
amount of the distribution from the Xxxxxxxx Fashion Center Custodial Account
allocable to interest and the amount of Default Interest allocable to the
related Xxxxxxxx Fashion Center Mortgage Loan;
(iii) If the distribution to a Xxxxxxxx Fashion Center Companion
Holder is less than the full amount that would be distributable to such Xxxxxxxx
Fashion Center Companion Holder if there were sufficient amounts available
therefor, the amount of the shortfall and the allocation thereof between
interest and principal and the amount of the shortfall, if any, under the
Xxxxxxxx Fashion Center A/B Loan;
(iv) The principal balance of the related Xxxxxxxx Fashion Center
Mortgage Loan after giving effect to the distribution of principal on such
Distribution Date; and
(v) The amount of the servicing fees paid to the Master Servicer
and the Special Servicer with respect to such Distribution Date, showing
separately the Special Servicing Fee, the Workout Fee and the Liquidation Fee.
Not later than each Distribution Date, the Xxxxxxxx Fashion Center
Companion Paying Agent shall make the foregoing statement available (i) to the
Depositor, the Rating Agencies, the Master Servicer and the Special Servicer by
any electronic means agreed upon by the Xxxxxxxx Fashion Center Companion Paying
Agent and the Person receiving such statement and (ii) to the Xxxxxxxx Fashion
Center Companion Holders by electronic means.
(b) With respect to the Xxxxxxxx Fashion Center A/B Loan, to the extent
such item is delivered to the Xxxxxxxx Fashion Center Companion Paying Agent,
the Xxxxxxxx Fashion Center Companion Paying Agent shall also make available to
each Xxxxxxxx Fashion Center Companion Holder by electronic means (commencing on
the date such item is delivered to the Xxxxxxxx Fashion Center Companion Paying
Agent): (i) the CMSA Financial File, CMSA Loan Periodic Update File, CMSA Loan
Set-Up File, CMSA Property File, CMSA Comparative Financial Status Report, CMSA
NOI Adjustment Worksheet, CMSA Servicer Watch List and CMSA Operating Statement
Analysis Report delivered to the Xxxxxxxx Fashion Center Companion Paying Agent
pursuant to Section 4.02(b) and (ii) in the event that the Xxxxxxxx Fashion
Center Mortgage Loan or related Mortgaged Property is reflected thereon, the
CMSA Delinquent Loan Status Report, CMSA Historical Liquidation Report, CMSA
Historical Loan Modification and Corrected Mortgage Loan Report or CMSA REO
Status Report, in each case to the extent pertaining to the related Mortgage
Loan.
219
(c) The Xxxxxxxx Fashion Center Companion Paying Agent shall make
available electronically to each Xxxxxxxx Fashion Center Companion Holder a copy
of the Distribution Date Statement required to be prepared pursuant to this
Agreement.
(d) The Xxxxxxxx Fashion Center Companion Holders shall be entitled to
receive, upon request, a copy of any notice or report required to be delivered
(upon request or otherwise) to the Trustee with respect to the Xxxxxxxx Fashion
Center A/B Loan or any related REO Property by any other party hereto. Any such
other party shall be permitted to require payment of a sum sufficient to cover
the reasonable costs and expenses of providing such copies.
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through A-24. The Certificates will be issuable
in registered form only; provided, however, that in accordance with Section 5.03
beneficial ownership interests in the Certificates, other than the Residual
Certificates, shall initially be held and transferred through the book-entry
facilities of the Depository. The Residual Certificates will be issued as
Definitive Certificates. The REMIC III Regular Certificates will be issuable in
denominations corresponding to initial Certificate Principal Balances or
Certificate Notional Amounts, as the case may be, as of the Closing Date of not
less than $25,000 in the case of the Class A-1, Class A-1A, Class A-2, Class B,
Class C, Class D and Class E Certificates, $100,000 in the case of the Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N-1, Class N-2,
Class O, Class P and Class Q Certificates, and $1,000,000 in the case of the
Class X Certificates, and in each such case in any whole dollar denomination in
excess thereof; provided, however, that a single Certificate of each Class
thereof may be issued in a different denomination. The Residual Certificates
will be issuable only in denominations representing Percentage Interests of not
less than 20% in the related Class.
(b) The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee in its capacity as trustee hereunder by an authorized
signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized signatories of the Trustee shall
be entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such positions prior to the authentication and delivery of such
Certificates or did not hold such positions at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, however, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 5.02 Registration of Transfer and Exchange of Certificates.
220
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Master Servicer and the Special Servicer, any
other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe; provided,
that the predecessor Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment. If the
Trustee resigns or is removed in accordance with the terms hereof, the successor
trustee shall immediately succeed to its predecessor's duties as Certificate
Registrar. The Depositor, the Master Servicer and the Special Servicer, shall
have the right to inspect the Certificate Register or to obtain a copy thereof
at all reasonable times, and to rely conclusively upon a certificate of the
Certificate Registrar as to the information set forth in the Certificate
Register.
(b) No transfer of any Non-Registered Certificate shall be made unless
such transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made to a Qualified Institutional Buyer in
accordance with Rule 144A promulgated under the Securities Act in a transaction
that does not require such registration or qualification. If such a transfer is
to be made without registration under the Securities Act, other than a transfer
by the Depositor or an Affiliate thereof, then the Trustee shall require, in
order to assure compliance with such laws, receipt by it and the Depositor of a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit B-1 hereto and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached as Exhibit B-2 hereto.
Notwithstanding the foregoing, transfers of a beneficial interest in any
Class (or portion thereof) of Non-Registered Certificates (other than the
Residual Certificates) in accordance with the rules and procedures of the
Depository applicable to transfers by its respective participants will be
permitted if such transfer is made to a Qualified Institutional Buyer in
accordance with Rule 144A promulgated under the Securities Act.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate without registration or qualification. Any Holder of
a Non-Registered Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositor, the Trustee and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(c) (i) No transfer of a Senior Certificate or a Class B, Class C,
Class D, Class E, Class F, Class G or Class H Certificate or any interest
therein shall be made (A) to any
221
employee benefit plan or other retirement arrangement, including individual
retirement accounts and annuities, Xxxxx plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, that is subject to ERISA or Section 4975 of the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing such Certificate
or interest therein on behalf of, as named fiduciary of, as trustee of, or with
"plan assets" of a Plan, unless (1) such Plan qualifies as an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, and
at the time of such transfer, such Certificates continue to be rated in one of
the top four rating categories by at least one Rating Agency or (2) such Plan is
an "insurance company general account" (within the meaning of PTCE 95-60 (as
defined below)) and the conditions set forth in Sections I and III of PTCE 95-60
have been satisfied as of the date of acquisition of such Certificate. Each
purchaser or transferee that is a Plan or is investing on behalf of or with
"plan assets" of a Plan will be deemed to have represented that the foregoing
conditions have been satisfied.
(ii) No transfer of a Residual Certificate or any interest
therein shall be made (A) to any Plan or (B) to any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with "plan assets" of a Plan. No transfer
of a Class J, Class K, Class L, Class M, Class N-1, Class N-2, Class O, Class P
or Class Q Certificate or any interest therein shall be made (A) to any Plan or
(B) to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
"plan assets" of a Plan unless the prospective transferee of any such
Certificate or any interest therein provides a certification of facts to the
Depositor, the Master Servicer and the Trustee substantially to the effect that
(or, if such Certificate is not in certificated form, will be deemed to
represent that) the purchase of such Certificate by or on behalf of, or with
"plan assets" of, such Plan is permissible under applicable law, will not
constitute or result in any non-exempt prohibited transaction under ERISA or
Section 4975 of the Code, will not subject the Depositor, the Trustee or the
Master Servicer to any obligation in addition to those undertaken herein, and
the following conditions are met: (1) such Plan qualifies as an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, (2)
the source of funds used to purchase such Certificate is an "insurance company
general account" (as such term is defined in United States Department of Labor
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and (3) the
conditions set forth in Sections I and III of PTCE 95-60 have been satisfied as
of the date of the acquisition of such Certificates. Any purchaser of a Class J,
Class K, Class L, Class M, Class N-1, Class N-2, Class O, Class P or Class Q
Certificate or any interest therein will be deemed to have represented by such
purchase that either (a) such purchaser is not a Plan and is not purchasing such
Certificates by or on behalf of, or with "plan assets" of, any Plan or (b) the
purchase of any such Certificate by or on behalf of, or with "plan assets" of,
such Plan is permissible under applicable law, will not result in any non-exempt
prohibited transaction under ERISA or Section 4975 of the Code, and will not
subject the Depositor, the Trustee or the Master Servicer to any obligation in
addition to those undertaken herein, and the following conditions are met: (i)
such Plan qualifies as an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act, (ii) the source of funds used to purchase
such Certificate is an "insurance company general account" (as such term is
defined in PTCE 95-60) and (iii) the conditions set forth in Sections I and III
of PTCE 95-60 have been satisfied as of the date of the acquisition of such
Certificates. The Trustee may require that any prospective transferee of a
Certificate that is held as a Definitive Certificate provide such certifications
as the Trustee may deem desirable or necessary in order to
222
establish that such transferee or the Person in whose name such registration is
requested is not a Plan or a Person who is directly or indirectly purchasing
such Certificate on behalf of, as named fiduciary of, as trustee of, or with
"plan assets" of a Plan or that the conditions of an acceptable alternative have
been satisfied. The Trustee shall not have any responsibility to monitor or
restrict the transfer of Ownership Interests in any Certificates that are in the
form of a Book-Entry Certificate.
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause (ii)(A) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Trustee under clause (ii)(B) below to negotiate the terms of any mandatory
sale and to execute all instruments of Transfer and to do all other things
necessary in connection with any such sale. The rights of each Person acquiring
any Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and a United States
Person and shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest
in a Residual Certificate, the Trustee shall require delivery to it, and no
Transfer of any Residual Certificate shall be registered until the Trustee
receives, an affidavit and agreement substantially in the form attached
hereto as Exhibit C-1 (a "Transfer Affidavit and Agreement") from the
proposed Transferee, in form and substance satisfactory to the Trustee,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in
the Residual Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in a
Residual Certificate, it will endeavor to remain a Permitted Transferee,
that it is a United States Person, and that it has reviewed the provisions
of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement
by a proposed Transferee under clause (B) above, if the Trustee has actual
knowledge that the proposed Transferee is not a Permitted Transferee or is
not a United States Person, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit and
Agreement from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual Certificate unless it
provides to the Trustee a certificate substantially in the form attached
hereto as Exhibit C-2 stating that, among other things, it has no actual
knowledge that
223
such prospective Transferee is not a Permitted Transferee or is not a
United States Person.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it is, or is holding an
Ownership Interest in a Residual Certificate on behalf of, a "pass-through
interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section 5.02(d) or
if any Holder of a Residual Certificate shall lose its status as a Permitted
Transferee or a United States Person, then the last preceding Holder of such
Residual Certificate that was in compliance with the provisions of this Section
5.02(d) shall be restored, to the extent permitted by law, to all rights as
Holder thereof retroactive to the date of registration of such Transfer of such
Residual Certificate. None of the Trustee, the Master Servicer, the Special
Servicer or the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact not
permitted by this Section 5.02(d) or for making any payments due on such
Certificate to the Holder thereof or for taking any other action with respect to
such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the restrictions in this Section 5.02(d), or if
any Holder of a Residual Certificate shall lose its status as a Permitted
Transferee or a United States Person, and to the extent that the
retroactive restoration of the rights of the prior Holder of such Residual
Certificate as described in clause (ii)(A) above shall be invalid, illegal
or unenforceable, then the Trustee shall have the right, without notice to
the Holder or any prior Holder of such Residual Certificate, to sell such
Residual Certificate to a purchaser selected by the Trustee on such terms
as the Trustee may choose. Such non-complying Holder shall promptly endorse
and deliver such Residual Certificate in accordance with the instructions
of the Trustee. Such purchaser may be the Trustee itself or any Affiliate
of the Trustee. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Trustee or its Affiliates), expenses
and taxes due, if any, will be remitted by the Trustee to such
non-complying Holder. The terms and conditions of any sale under this
clause (ii)(B) shall be determined in the sole discretion of the Trustee,
and the Trustee shall not be liable to any Person having an Ownership
Interest in a Residual Certificate as a result of its exercise of such
discretion.
(iii) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, all information
necessary to compute any tax imposed (A) as a result of the Transfer of an
Ownership Interest in a Residual Certificate to any Person who is not a
Permitted Transferee, including the information described in Treasury
Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5)with respect to the
"excess inclusions" of such Residual Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Residual Certificate having as
224
among its record holders at any time any Person which is not a Permitted
Transferee. The Person holding such Ownership Interest shall be responsible for
the reasonable compensation of the Trustee for providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to
this subsection (iv) may be modified, added to or eliminated; provided, that
there shall have been delivered to the Trustee and the Depositor the following:
(A) written notification from each Rating Agency to the effect that the
modification of, addition to or elimination of such provisions will not
cause such Rating Agency to qualify, downgrade or withdraw its then-current
rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee and the Depositor, to the effect that such modification of,
addition to or elimination of such provisions will not cause any of REMIC
I, REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y) be
subject to an entity-level tax caused by the Transfer of any Residual
Certificate to a Person which is not a Permitted Transferee, or cause a
Person other than the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Residual Certificate to a
Person which is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the offices of the Certificate
Registrar maintained for such purpose, the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(g) Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Trustee or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Trustee and the Certificate Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
225
(j) Upon request, the Certificate Registrar shall provide the Master
Servicer, the Special Servicer and the Depositor with an updated copy of the
Certificate Register on or about January 1 and July 1 of each year, commencing
July 1, 2003.
SECTION 5.03 Book-Entry Certificates.
(a) Each Class of Certificates other than the Residual Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in subsection (c) below
shall not be entitled to definitive, fully registered Certificates ("Definitive
Certificates") in respect of such Ownership Interests. The Trustee shall not
have any responsibility to monitor or restrict the transfer of Ownership
Interests in any Book-Entry Certificate. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer and any other documents necessary to satisfy the
requirements of any applicable transfer restrictions, the Trustee shall execute,
and the Certificate Registrar shall authenticate and deliver, the applicable
226
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Fiscal Agent or the Certificate Registrar shall be liable for
any delay in delivery of such instructions, and each may conclusively rely on,
and shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates for purposes of evidencing ownership of the Registered
Certificates held in book-entry form, the registered holders of such Definitive
Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
actual notice to the Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of the same Class and like Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Trustee and the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the applicable
REMIC, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.05 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents of any of them may treat
the person in whose name such Certificate is registered as of the related Record
Date as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and for all other purposes whatsoever, except as and to
the extent provided in the definition of "Certificateholder", and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar or any agent of any of them shall be affected by notice to
the contrary except as provided in Section 5.02(d).
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer.
227
The Depositor, the Master Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer and the Special Servicer; Assignment of Rights and Delegation of
Duties by the Master Servicer and the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Master Servicer
and the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation, and each will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
or Xxxxxxxx Fashion Center Companion Loans and to perform its respective duties
under this Agreement.
(b) The Depositor, the Master Servicer and the Special Servicer may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person, in which case any Person resulting from any
merger or consolidation to which the Depositor, the Master Servicer or the
Special Servicer shall be a party, or any Person succeeding to the business of
the Depositor, the Master Servicer and the Special Servicer, shall be the
successor of the Depositor, the Master Servicer and the Special Servicer, as the
case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, that (i) with respect to the Master Servicer
or the Special Servicer, such Person is qualified to service multifamily
mortgage loans on behalf of FNMA or FHLMC and (ii) such merger, consolidation or
succession will not result in the downgrade, qualification or withdrawal of the
then-current ratings of the Classes of Certificates or Xxxxxxxx Fashion Center
Companion Loan Securities that have been so rated (as evidenced by a letter to
such effect from each Rating Agency).
(c) Notwithstanding anything else in this Section 6.02 and Section 6.04
to the contrary, the Master Servicer and the Special Servicer may assign all of
its rights and delegate all of its duties and obligations under this Agreement;
provided, that the Person accepting such assignment or delegation shall be a
Person that is qualified to service multifamily mortgage loans on behalf of FNMA
or FHLMC, is reasonably satisfactory to the Trustee and the Depositor, is
willing to service the Mortgage Loans and Xxxxxxxx Fashion Center Companion
Loans and executes and delivers to the Depositor and the Trustee an agreement,
in form and substance reasonably satisfactory to the Depositor and the Trustee,
which contains an assumption by such Person of the due and punctual performance
and observance of each covenant and condition to be performed or observed by the
Master Servicer or the Special Servicer, as the case may be, under this
Agreement; provided, further, that such assignment or delegation will not result
in the downgrade, qualification or withdrawal of the then-current ratings of the
Classes of Certificates or Xxxxxxxx Fashion Center Companion Loan Securities
that have been rated (as evidenced by a Rating Agency Confirmation). In the case
of any such assignment and delegation, the Master Servicer or the Special
Servicer, as the case may be, shall be released from its obligations under this
Agreement, except that the Master Servicer or the Special Servicer, as the case
may be, shall remain liable for all liabilities and obligations incurred by it,
or arising from its conduct,
228
hereunder prior to the satisfaction of the conditions to such assignment and
delegation set forth in the preceding sentence. Notwithstanding anything above
to the contrary, the Master Servicer may, in its sole discretion, appoint
Sub-Servicers in accordance with Section 3.23 hereof and independent contractors
or agents to perform select duties thereof; provided, that the Master Servicer
shall not be relieved from such duties solely by virtue of such appointment.
SECTION 6.03 Limitation on Liability of the Depositor, the Master Servicer,
the Special Servicer and Others.
None of the Depositor, the Master Servicer, the Special Servicer or any of
the directors, officers, employees or agents of the Depositor, the Master
Servicer or the Special Servicer shall be under any liability to the Trust Fund
or the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer, the Special Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of negligent disregard of
obligations and duties hereunder. The Depositor, the Master Servicer, the
Special Servicer and any director, officer, employee or agent of the Depositor,
the Master Servicer or the Special Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer and
the Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer or the Special Servicer shall be indemnified by
the Trust Fund and held harmless against any loss, liability or expense incurred
in connection with any legal action relating to this Agreement, the Certificates
or any asset of the Trust Fund, other than any loss, liability or expense
specifically required to be borne by such Person pursuant to the terms hereof,
or which constitutes a Servicing Advance (and is otherwise specifically
reimbursable hereunder), or which is incurred by such Person by reason of such
Person's willful misfeasance, bad faith or negligence in the performance of such
Person's duties hereunder or by reason of such Person's negligent disregard of
obligations and duties hereunder.
In no event shall the Master Servicer be liable for any determination made
by the Majority Certificateholder of the Controlling Class pursuant to paragraph
(3) of the definition of Specially Serviced Mortgage Loan.
None of the Depositor, the Master Servicer or the Special Servicer shall be
under any obligation to appear in, prosecute or defend any legal or
administrative action, proceeding, hearing or examination that is not incidental
to its respective duties under this Agreement and which in its opinion may
involve it in any ultimate expense or liability; provided, however, that the
Depositor, the Master Servicer or the Special Servicer may in its discretion
undertake any such action, proceeding, hearing or examination that it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action, proceeding, hearing or
examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor out of amounts
attributable to the Mortgage Loans on deposit in the Certificate Account as
provided by Section 3.05(a); provided, however, that if such
229
action, proceeding, hearing or examination relates to the Xxxxxxxx Fashion
Center A/B Loan and/or a Xxxxxxxx Fashion Center Companion Holder, such
expenses, costs and liabilities shall be payable out of the Xxxxxxxx Fashion
Center Custodial Account and then shall be payable out of the Certificate
Account if amounts on deposit in the Xxxxxxxx Fashion Center Custodial Account
are insufficient therefor hereunder so long as such expenses, costs and
liabilities do not relate solely to a Xxxxxxxx Fashion Center Companion Loan.
SECTION 6.04 Depositor, Master Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, none of the Depositor, the
Master Servicer or the Special Servicer shall resign from its respective
obligations and duties hereby imposed on it except upon determination that its
duties hereunder are no longer permissible under applicable law. Any such
determination permitting the resignation of the Depositor, the Master Servicer
or the Special Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee. No such resignation by the Master Servicer or
the Special Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the responsibilities and obligations of the Master
Servicer or the Special Servicer, as the case may be, in accordance with Section
7.02.
In the event that the Special Servicer resigns, the Xxxxxxxx Fashion Center
Controlling Holder shall appoint a qualified Special Servicer as successor
special servicer with respect to the Xxxxxxxx Fashion Center A/B Loan in
accordance with Section 7.02. In the event that a successor special servicer
appointed pursuant to the preceding sentence does not assume all of the duties
and liabilities of the resigning Special Servicer hereunder within 90 days of
the giving of notice of resignation, the resigning Special Servicer may petition
a court of competent jurisdiction to appoint a special servicer as the successor
to the Special Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Special Servicer hereunder which
have not been assumed by a successor special servicer; provided, however, that
until such appointment and assumption, the resigning Special Servicer shall
continue to perform its servicing obligations pursuant to this Agreement. The
appointment of a successor special servicer by a court shall not preclude the
Xxxxxxxx Fashion Center Controlling Holder from replacing such successor special
servicer at any time.
SECTION 6.05 Rights of the Depositor in Respect of the Master Servicer and
the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Master Servicer or the Special Servicer hereunder or exercise the rights of the
Master Servicer or the Special Servicer hereunder; provided, however, that
neither the Master Servicer nor the Special Servicer shall be relieved of any of
its obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer or the Special Servicer and is
not obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
230
SECTION 6.06 Removal Without Cause and Appointment of Successor Special
Servicer for Xxxxxxxx Fashion Center A/B Loan.
(a) With respect to the Xxxxxxxx Fashion Center A/B Loan, (i) at any
time when a Xxxxxxxx Fashion Center B Note Control Appraisal Event is not in
effect for the Xxxxxxxx Fashion Center A/B Loan, the Xxxxxxxx Fashion Center B
Note Holder (or the related Xxxxxxxx Fashion Center B Note Operating Advisor
acting on its behalf), at its expense (including without limitation the
reasonable costs and expenses of counsel to the Trust Fund and any other third
parties), may remove the Special Servicer with respect to the Xxxxxxxx Fashion
Center A/B Loan for any reason whatsoever or no reason upon prior written notice
to the Special Servicer to be removed and to the Trustee and (ii) at any time
when a Xxxxxxxx Fashion Center B Note Control Appraisal Event has occurred and
is continuing for the Xxxxxxxx Fashion Center A/B Loan, the Majority
Certificateholder of the Controlling Class, at its expense (including without
limitation the reasonable costs and expenses of counsel to the Trust Fund and
any other third parties), may remove the Special Servicer with respect to the
Xxxxxxxx Fashion Center A/B Loan for any reason whatsoever or no reason upon
prior written notice to the Special Servicer to be removed and to the Trustee.
No removal pursuant to this Section 6.06 shall in any manner affect the
rights, duties and obligations hereunder of the Special Servicer as they relate
to any Mortgage Loan other than the related Xxxxxxxx Fashion Center A/B Loan.
Simultaneously with the giving of such notice, the Xxxxxxxx Fashion Center
Controlling Holder (or, if applicable, the related Xxxxxxxx Fashion Center B
Note Operating Advisor acting on its behalf) removing such Special Servicer
shall appoint a qualified Special Servicer as a successor Special Servicer for
such Xxxxxxxx Fashion Center Note A/B Loan in accordance with this Section 6.06.
The removal of a Special Servicer and appointment of a successor Special
Servicer for the Xxxxxxxx Fashion Center A/B Loan pursuant to this Section 6.06
shall not be effective until (A) (1) if the Xxxxxxxx Fashion Center A/B Loan
shall be a Specially Serviced Mortgage Loan at the time of the giving of notice
of removal to the Special Servicer being removed, the 11th day (or such shorter
period acceptable to the Special Servicer being removed in its sole discretion)
following the time of the giving of such notice or (2) if the Xxxxxxxx Fashion
Center Note A/B Loan shall be a Specially Serviced Mortgage Loan at the time of
the giving of notice of removal to the Special Servicer being removed, the 31st
day (or such shorter period acceptable to the Special Servicer being removed in
its sole discretion) following the time of the giving of such notice, (B) the
Trustee shall have received evidence satisfactory to it that such successor is a
qualified Special Servicer, including, without limitation, written confirmation
from each Rating Agency (at the expense of the removing Person) that such
appointment would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then-current ratings assigned to each Class of the
Certificates and Xxxxxxxx Fashion Center Companion Loan Securities rated by it,
(C) the successor Special Servicer shall have executed and delivered an
assumption agreement; and (D) the Trustee and each of the Rating Agencies shall
have received an Opinion of Counsel reasonably satisfactory to the Trustee (and
delivered at the expense of the removing Person or successor Special Servicer)
to the effect that (x) it is a corporation, limited partnership or limited
liability company, duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (y) it has the full power and
authority and legal right to execute and deliver its assumption agreement and to
engage in the transactions contemplated by, and
231
perform and observe the terms and conditions of, this Agreement and its
assumption agreement and (z) subject to customary and satisfactory
qualifications and exceptions, this Agreement and its assumption agreement will
be enforceable against such replacement Special Servicer in accordance with its
terms.
(b) The existing Special Servicer shall be deemed to have been removed
with respect to the Xxxxxxxx Fashion Center Note A/B Loan simultaneously with
such successor Special Servicer's becoming the Special Servicer for such
Xxxxxxxx Fashion Center Note A/B Loan hereunder; provided, however, that,
notwithstanding such removal, the Special Servicer removed pursuant to Section
6.06(a) (i) shall be entitled to receive, and shall have received, all amounts
related to such Xxxxxxxx Fashion Center Note A/B Loan which have accrued or are
owing to it under this Agreement on or prior to the effective date of such
resignation, whether in respect of Servicing Advances or otherwise, and it shall
continue to be entitled to the benefits of Section 6.01 and Section 6.03
notwithstanding any such removal, (ii) shall be entitled (and the successor
Special Servicer shall not be entitled) to receive Workout Fees and Liquidation
Fees with respect to such Xxxxxxxx Fashion Center Note A/B Loan as provided in
Section 3.11(c) and (iii) shall be entitled to reimbursement for its reasonable
expenses incurred in connection with the removal and transfer of its special
servicing duties with respect to the Xxxxxxxx Fashion Center A/B Loan, as the
case may be. Any Special Servicer being removed hereunder shall cooperate with
the Trustee and the replacement special servicer in effecting the termination of
the removed Special Servicer's responsibilities and rights hereunder as they
relate to the Xxxxxxxx Fashion Center Note A/B Loan including without limitation
(i) the transfer prior to such removal to the successor special servicer for
administration by it of any cash amounts then held by the removed Special
Servicer with respect to such Xxxxxxxx Fashion Center Note A/B Loan and (ii) the
transfer within two Business Days of receipt to the successor special servicer
for administration by it of all cash amounts that are thereafter received with
respect to the Xxxxxxxx Fashion Center A/B Loan, as the case may be.
(c) Except as otherwise provided in Section 3.11(c), in connection with
the appointment of a successor special servicer for a Xxxxxxxx Fashion Center
Note A/B Loan pursuant to this Section 6.06, the compensation of the successor
special servicer shall be paid in the same amount and in the same manner as the
compensation that would have been payable to the Special Servicer for such
Xxxxxxxx Fashion Center Note A/B Loan that it replaced.
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) (A) any failure by the Master Servicer to make a required
deposit to the Certificate Account which continues unremedied for one Business
Day following the date on which such deposit was first required to be made, or
(B) any failure by the Master Servicer to deposit into, or to remit to the
Trustee for deposit into, the Distribution Account any amount
232
required to be so deposited or remitted, which failure is not remedied by 11:00
a.m. (New York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account any
amount required to be so deposited or remitted under this Agreement which
failure continues unremedied for one Business Day following the date on which
such deposit or remittance was first required to be made; or
(iii) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it pursuant to this Agreement which
continues unremedied for a period ending on the earlier of (A) 15 days following
the date such Servicing Advance was first required to be made, and (B) either,
if applicable, (1) in the case of a Servicing Advance relating to the payment of
insurance premiums, the day on which such insurance coverage terminates if such
premiums are not paid or (2) in the case of a Servicing Advance relating to the
payment of real estate taxes, the date of the commencement of a foreclosure
action with respect to the failure to make such payment; or
(iv) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the Special
Servicer contained in this Agreement which continues unremedied for a period of
30 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by the Trustee or the Depositor, or to the Master
Servicer or the Special Servicer, as the case may be by the Holders of
Certificates entitled to not less than 25% of the Voting Rights or by any
affected Xxxxxxxx Fashion Center Companion Holder; provided, however, that if
such covenant or agreement is capable of being cured and the Master Servicer or
Special Servicer, as applicable, is diligently pursuing such cure, such 30 day
period shall be extended for an additional 30 days; or
(v) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement which
materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 30 days after
the date on which notice of such breach, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer by the
Trustee or the Depositor, or to the Master Servicer or the Special Servicer, as
the case may be by the Holders of Certificates entitled to not less than 25% of
the Voting Rights; provided, however, if such breach is capable of being cured
and the Master Servicer or Special Servicer, as applicable, is diligently
pursuing such cure, such 30 day period shall be extended for an additional 30
days; or
(vi) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer or the Special
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
233
(vii) the Master Servicer or the Special Servicer shall consent
to the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to it or of or
relating to all or substantially all of its property; or
(viii) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its creditors,
voluntarily suspend payment of its obligations, or take any corporate action in
furtherance of the foregoing; or
(ix) a Servicing Officer obtains actual knowledge that Xxxxx'x
has (A) qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates, or (B) has placed one or more Classes of Certificates
on "watch status" in contemplation of a ratings downgrade or withdrawal (and
such "watch status" placement shall not have been withdrawn by Xxxxx'x within 60
days of the date the Servicing Officer obtained such actual knowledge), and, in
the case of either of clauses (A) or (B), cited servicing concerns with the
Master Servicer or the Special Servicer, as the case may be, as the sole or
material factor in such rating action; or
(x) the Master Servicer or the Special Servicer is removed from
Standard & Poor's approved master servicer list or special servicer list, as the
case may be, and the ratings of any of the Certificates by Standard & Poor's are
downgraded, qualified or withdrawn (including, without limitation, placed on
"negative credit watch") in connection with such removal; or
(xi) (A) any failure by the Master Servicer to make a required
deposit to the Xxxxxxxx Fashion Center Custodial Account which materially and
adversely affects the Xxxxxxxx Fashion Center B Note Holder which continues
unremedied for one Business Day following the date on which such deposit was
first required to be made or (B) any breach on the part of the Master Servicer
of any representation or warranty contained in this Agreement which materially
and adversely affects solely the interests of the Xxxxxxxx Fashion Center B Note
Holder and which continues unremedied for a period of 30 days after the date on
which notice of such breach, requiring the same to be remedied, shall have been
given to the Master Servicer by the Trustee or the Depositor or by the Xxxxxxxx
Fashion Center B Note Holder; provided, however, if such breach is capable of
being cured and the Master Servicer is diligently pursuing such cure, such 30
day period shall be extended for an additional 30 days; provided, with respect
to any Event of Default pursuant to this Section 7.01(a)(xi), the aforementioned
Event of Default of the Master Servicer shall be solely with respect to the
Xxxxxxxx Fashion Center A/B Loan and not with respect to any other Mortgage
Loan.
(b) If any Event of Default (other than with respect to Section
7.01(a)(xi)) with respect to the Master Servicer or the Special Servicer (in
either case for purposes of this Section 7.01(b), the "Defaulting Party") shall
occur and be continuing, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Depositor or the Trustee may,
and at the written direction of the Holders of Certificates entitled to at least
51% of the Voting Rights, the Trustee shall, terminate, by notice in writing to
the Defaulting
234
Party, with a copy of such notice to the Depositor (if the termination is
effected by the Trustee) or to the Trustee (if the termination is effected by
the Depositor), all of the rights and obligations of the Defaulting Party under
this Agreement and in and to the Mortgage Loans and the proceeds thereof (other
than any rights of the Defaulting Party as Certificateholder). From and after
the receipt by the Defaulting Party of such written notice, all authority and
power of the Defaulting Party under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer and the Special Servicer
each agrees that if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than ten Business Days subsequent to its
receipt of the notice of termination) provide the Trustee or any other successor
Master Servicer or Special Servicer with all documents and records requested by
it to enable it to assume the Master Servicer's or Special Servicer's, as the
case may be, functions hereunder, and shall cooperate with the Trustee or any
other successor Master Servicer or Special Servicer in effecting the termination
of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the Trustee or any other successor Master
Servicer or Special Servicer for administration by it of all cash amounts which
shall at the time be or should have been credited by the Master Servicer or the
Special Servicer to the Certificate Account, the Xxxxxxxx Fashion Center
Custodial Account, the Distribution Account, any REO Account or any Servicing
Account or thereafter be received with respect to the Mortgage Loans, Xxxxxxxx
Fashion Center Companion Loans or any REO Property; provided, however, that the
Master Servicer and the Special Servicer each shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the date of such termination, whether in respect of Advances made by it or
otherwise, and it and its directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
termination.
(c) Notwithstanding Section 7.01(b) and Section 7.04, if any Event of
Default pursuant to Section 7.01(a)(xi) occurs, and the Master Servicer is not
otherwise terminated in accordance with Section 7.01(b), then, at the request of
the Xxxxxxxx Fashion Center B Note Holder, the Trustee shall require the Master
Servicer to appoint, within 30 days of the Trustee's request, a Sub-Servicer
proposed by the Xxxxxxxx Fashion Center B Note Holder, with respect to the
Xxxxxxxx Fashion Center A/B Loan; provided, the Xxxxxxxx Fashion Center B Note
Holder may not terminate, or require the Trustee to terminate, the Master
Servicer; provided, further, such Sub-Servicer shall be the successor to the
Master Servicer under the Sub-Servicing Agreement of even date herewith with
respect to the Xxxxxxxx Fashion Center A/B Loan. In connection with the Master
Servicer's appointment of a Sub-Servicer in accordance with this Section
7.01(c), Rating Agency Confirmation shall be obtained with respect to such
appointment. The related Sub-Servicing Agreement shall provide that any
Sub-Servicer appointed by the Master Servicer in accordance with this Section
7.01(c) shall be responsible for all duties, and shall be entitled to all
compensation, of the Master Servicer under this Agreement with respect to the
Xxxxxxxx Fashion Center A/B Loan. Such Sub-Servicing Agreement shall
235
also provide that such Sub-Servicer shall agree to become the master servicer
under the Xxxxxxxx Fashion Center A/B Intercreditor Agreement in the event that
the Xxxxxxxx Fashion Center A/B Loan is no longer to be serviced and
administered hereunder, which separate servicing agreement shall contain
servicing and administration, limitation of liability, indemnification and
servicing compensation provisions substantially similar to the corresponding
provisions of this Agreement, except for the fact that the Xxxxxxxx Fashion
Center A/B Loan and the related Mortgaged Property shall be the sole assets
serviced and administered thereunder and the sole source of funds thereunder.
SECTION 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall be the successor in all respects to the Master
Servicer or the Special Servicer, as the case may be, in its capacity as such
under this Agreement and the transactions set forth or provided for herein and
shall be subject to all the responsibilities, duties and liabilities relating
thereto and arising thereafter placed on the Master Servicer or the Special
Servicer, as the case may be, by the terms and provisions hereof, including,
without limitation, the Master Servicer's obligation to make Delinquency
Advances; provided, that any failure to perform such duties or responsibilities
caused by the Master Servicer's or the Special Servicer's failure to provide
information or monies required by Section 7.01 shall not be considered a default
by the Trustee hereunder. The Trustee shall not be liable for any of the
representations and warranties of the Master Servicer or the Special Servicer or
for any losses incurred by the Master Servicer or the Special Servicer pursuant
to Section 3.06 hereunder nor shall the Trustee be required to purchase any
Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan hereunder. As
compensation therefor, the Trustee shall be entitled to the applicable Servicing
Fee and Special Servicing Fee and all funds relating to the Mortgage Loans or
Xxxxxxxx Fashion Center Companion Loans which the Master Servicer or the Special
Servicer (other than any Workout Fees owed pursuant to Section 3.11(c)) would
have been entitled to charge to the Certificate Account or the Distribution
Account if the Master Servicer or the Special Servicer had continued to act
hereunder. Notwithstanding the above, the Trustee may, if it shall be unwilling
to so act, or shall, if it is unable to so act or if the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing to the
Trustee or if the Trustee is not approved as a master servicer or special
servicer, as the case may be, by each Rating Agency rating the Certificates or
the Xxxxxxxx Fashion Center Companion Loan Securities, promptly appoint any FNMA
or FHLMC-approved mortgage loan servicing institution that has a net worth of
not less than $10,000,000 and is otherwise acceptable to each such Rating Agency
(as evidenced by Rating Agency Confirmation), as the successor to the Master
Servicer hereunder or the Special Servicer, as the case may be, in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer or the Special Servicer, as the case may be, hereunder. No
appointment of a successor to the Master Servicer or the Special Servicer, as
the case may be, hereunder shall be effective until the assumption of the
successor to the Master Servicer or the Special Servicer, as the case may be, of
all the responsibilities, duties and liabilities of the Master Servicer or the
Special Servicer, as the case may be, hereunder. Pending appointment of a
successor to the Master Servicer or the Special Servicer, as the case may be,
hereunder, the Trustee shall act in such capacity as hereinabove provided. In
connection with any such appointment and assumption described herein, the
Trustee may make such arrangements for the compensation of such successor out of
payments on
236
Mortgage Loans, Xxxxxxxx Fashion Center Companion Loans or otherwise as it and
such successor shall agree; provided, however, that no such compensation shall
be in excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
The Trustee shall be reimbursed for all of its out-of-pocket expenses incurred
in connection with obtaining such successor servicer by the Trust within 60 days
of the Trustee's submission of an invoice with respect thereto and after making
reasonable efforts to collect such amounts from the successor servicer, to the
extent such expenses have not been reimbursed by the successor servicer; such
expenses paid by the Trust Fund shall be deemed to be an Additional Trust Fund
Expense. Nothing in this Section 7.02 shall limit the Majority Certificateholder
of the Controlling Class or the Xxxxxxxx Fashion Center B Note Holder, as the
case may be, from removing the Special Servicer and appointing a successor
special servicer pursuant to Section 3.24 and Section 6.06, respectively.
SECTION 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Master Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02, the Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register and to each the
Xxxxxxxx Fashion Center Companion Holder.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders and to each Xxxxxxxx Fashion Center Companion Holder notice
of such occurrence, unless such default shall have been cured.
SECTION 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the Voting
Rights allocated to the Classes of Certificates affected by any Event of Default
may waive such Event of Default, and with respect to an Event of Default
pursuant to Section 7.01(a)(ix) hereunder the Xxxxxxxx Fashion Center B Note
Holder may waive such Event of Default; provided, however, that an Event of
Default under clause (i) or (ii) of Section 7.01 may be waived only by all of
the Certificateholders of the affected Classes, together with the holders of
100% of the voting rights of each affected series of Xxxxxxxx Fashion Center
Companion Loan Securities. Upon any such waiver of an Event of Default, such
Event of Default shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder. No such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon except to the
extent expressly so waived. Notwithstanding any other provisions of this
Agreement, for purposes of waiving any Event of Default pursuant to this Section
7.04, Certificates registered in the name of the Depositor or any Affiliate of
the Depositor shall be entitled to the same Voting Rights with respect to the
matters described above as they would if any other Person held such
Certificates.
237
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
SECTION 8.01 Duties of the Trustee and the Fiscal Agent.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee (other than as successor Master Servicer or Special Servicer) shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs. Any
permissive right of the Trustee contained in this Agreement shall not be
construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Fiscal Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties and
obligations of the Trustee and the Fiscal Agent shall be determined solely by
the express provisions of this Agreement, the Trustee and the Fiscal Agent shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Trustee or the Fiscal Agent and,
in the absence of bad faith on the part of the Trustee or the Fiscal Agent, the
Trustee and the Fiscal Agent may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee or the Fiscal Agent and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at least
25% (or other percentage specified in this Agreement) of the Voting Rights
relating to the time, method and place of conducting any
238
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Agreement.
SECTION 8.02 Certain Matters Affecting the Trustee and the Fiscal Agent.
Except as otherwise provided in Section 8.01:
(a) The Trustee and the Fiscal Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) The Trustee and the Fiscal Agent may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith and the
expense of such consultation with counsel shall be reimbursable under Section
8.05(b) hereof;
(c) Neither the Trustee nor the Fiscal Agent (in their respective
capacities as such) shall be under any obligation to exercise any of the trusts
or powers vested in it by this Agreement or to make any investigation of matters
arising hereunder or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee or the Fiscal Agent, as
applicable, reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; neither the Trustee nor
the Fiscal Agent shall be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default which has not been cured, to exercise such of the rights and
powers vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(d) Neither the Trustee nor the Fiscal Agent shall be personally liable
for any action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder and after
the curing of all Events of Default which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at least
50% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such
239
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to taking any such action;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, provided,
that the Trustee shall not be relieved from such duties, and the Trustee shall
remain responsible for all acts and omissions of any such agent;
(g) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office, and such notice references the Certificates or this Agreement; and
(h) Neither the Trustee nor the Fiscal Agent shall be responsible for
any act or omission of the Master Servicer or the Special Servicer (unless the
Trustee is acting as Master Servicer or the Special Servicer, as the case may
be) or of the Depositor or any other person.
SECTION 8.03 Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than the
representations and warranties of, and the other statements attributed to the
Trustee in Sections 2.02, 2.05, 2.07 and 8.13 and the signature of the Trustee
set forth on each outstanding Certificate, shall be taken as the statements of
the Depositor, the Master Servicer or the Special Servicer, as the case may be,
and neither the Trustee nor the Fiscal Agent shall assume responsibility for
their correctness. Neither the Trustee nor the Fiscal Agent shall make any
representations as to the validity or sufficiency of this Agreement (except to
the extent set forth in Section 8.13) or of any Certificate (other than as to
the signature of the Trustee set forth thereon) or of any Mortgage Loan or any
related document. Neither the Trustee nor the Fiscal Agent shall be accountable
for the use or application by the Depositor of any of the Certificates issued to
it or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Depositor in respect of the assignment of the Mortgage Loans
to the Trust Fund, or any funds deposited in or withdrawn from the Certificate
Account or any other account by or on behalf of the Depositor, the Master
Servicer or the Special Servicer. Neither the Trustee nor the Fiscal Agent shall
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer or the Special Servicer, and accepted by the
Trustee in good faith, pursuant to this Agreement.
SECTION 8.04 Trustee and Fiscal Agent May Own Certificates.
Each of the Trustee and the Fiscal Agent, in its individual or any other
capacity, may become the owner or pledgee of Certificates with the same rights
it would have if it were not the Trustee.
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of Trustee and
the Fiscal Agent.
240
(a) Monthly, the Trustee shall be entitled to withdraw the Trustee Fee
from the Distribution Account pursuant to Section 3.05(b) for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee. On or
prior to the Distribution Date in each month, the Trustee shall be entitled to
withdraw and pay itself from amounts then on deposit in the Distribution Account
an amount equal to the then unpaid Trustee Fees.
(b) The Trustee, the Fiscal Agent and any director, officer, employee
or agent of the Trustee or the Fiscal Agent, as applicable, shall be indemnified
and held harmless by the Trust Fund (to the extent of amounts on deposit in the
Distribution Account from time to time) against any loss, liability or expense
(including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement)
arising out of, or incurred in connection with, any act or omission of the
Trustee and the Fiscal Agent relating to the exercise and performance of any of
the powers and duties of the Trustee and the Fiscal Agent hereunder; provided,
that none of the Trustee, the Fiscal Agent or any of the other above specified
Persons, shall be entitled to indemnification pursuant to this Section 8.05(b)
for (i) allocable overhead, (ii) expenses or disbursements incurred or made by
or on behalf of the Trustee or the Fiscal Agent in the normal course of the
Trustee's and the Fiscal Agent's performing their routine duties in accordance
with any of the provisions hereof, (iii) any expense or liability specifically
required to be borne thereby pursuant to the terms hereof, or (iv) any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of the Trustee's or the Fiscal Agent's obligations
and duties hereunder, or by reason of negligent disregard of such obligations or
duties, or as may arise from a breach of any representation, warranty or
covenant of the Trustee or the Fiscal Agent made herein. The provisions of this
Section 8.05(b) shall survive any resignation or removal of the Trustee and
appointment of a successor trustee or fiscal agent.
SECTION 8.06 Eligibility Requirements for Trustee and Fiscal Agent.
(a) The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States of
America or any State thereof or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority. If such association or corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such association or corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. The long-term unsecured debt obligations of the Trustee
shall at all times be rated not less than "AA-" by Standard & Poor's (or "A+" if
the short-term unsecured debt rating of the Fiscal Agent is at least "A-1" by
Standard & Poor's) and "Aa3" by Xxxxx'x and the short-term unsecured debt
obligations of the Trustee shall at all times be rated not less than "A-1" by
Standard & Poor's or, if and for so long as a Fiscal Agent is appointed and
acting hereunder, at least investment grade by each Rating Agency or, in each
case, such other rating as shall not result in the qualification, downgrade or
withdrawal of any of the ratings then assigned to the respective Classes of
Certificates, as confirmed in writing by the applicable Rating Agency. In case
at any time the Trustee or the Fiscal Agent shall cease to be eligible in
accordance with the provisions of this Section 8.06(a), the Trustee or the
Fiscal Agent
241
shall resign immediately in the manner and with the effect specified in Section
8.07; provided, that if the Trustee shall cease to be so eligible because its
combined capital and surplus is no longer at least $100,000,000 or its long-term
unsecured debt rating no longer conforms to the requirements of the immediately
preceding sentence, and if the Trustee proposes to the other parties hereto to
enter into an agreement with (and reasonably acceptable to) each of them or the
Trustee appoints a fiscal agent, and if in light of such agreement or such
appointment, the Trustee's continuing to act in such capacity would not (as
evidenced in writing by each Rating Agency) cause any Rating Agency to qualify,
downgrade or withdraw any rating assigned thereby to any Class of Certificates
or any Xxxxxxxx Fashion Center Loan Securities, then upon the execution and
delivery of such agreement or the effectiveness of such appointment, the Trustee
shall not be required to resign, and may continue in such capacity, for so long
as none of the ratings assigned by the Rating Agencies to the Certificates or
any Xxxxxxxx Fashion Center Companion Loan Securities is adversely affected
thereby. The corporation or association serving as Trustee may have normal
banking and trust relationships with the Depositor, the Master Servicer, the
Special Servicer and their respective Affiliates.
(b) The Trustee and the Fiscal Agent shall not assign any of their
rights or delegate any of its duties under this Agreement to any other Person
without the prior written consent of the Depositor and the Majority
Certificateholder of the Controlling Class (such consent not to be unreasonably
withheld, conditioned or delayed).
SECTION 8.07 Resignation and Removal of the Trustee and the Fiscal Agent.
(a) The Trustee or the Fiscal Agent, as applicable, may at any time
resign and be discharged from the trusts hereby created by giving written notice
thereof to the Depositor, the Master Servicer, the Special Servicer, all
Certificateholders and the Xxxxxxxx Fashion Center Companion Holders. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor trustee or fiscal agent, as applicable, acceptable to the Master
Servicer, by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee or the resigning Fiscal Agent and to the
successor trustee or fiscal agent. A copy of such instrument shall be delivered
to the Master Servicer, the Special Servicer, the Certificateholders and the
Xxxxxxxx Fashion Center Companion Holders by the Depositor. If no successor
trustee or fiscal agent shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee or the resigning Fiscal Agent may petition any court of
competent jurisdiction for the appointment of a successor trustee or fiscal
agent.
(b) If at any time the Trustee or the Fiscal Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 and shall fail to
resign after written request therefor by the Depositor or the Master Servicer,
or if at any time the Trustee or the Fiscal Agent shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee
or of its property or the Fiscal Agent or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or of its
property or affairs or the Fiscal Agent or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Depositor may
remove the Trustee or the Fiscal Agent and appoint a successor trustee or fiscal
agent acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee or the Fiscal Agent so
removed and to the successor trustee or
242
fiscal agent. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Certificateholders and the Xxxxxxxx Fashion
Center Companion Holders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee or the Fiscal Agent and appoint a
successor trustee or fiscal agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Master Servicer,
one complete set to the Trustee so removed and one complete set to the successor
so appointed. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer and, the remaining Certificateholders and the Xxxxxxxx Fashion
Center Companion Holders by the Master Servicer.
(d) Any resignation or removal of the Trustee or the Fiscal Agent and
appointment of a successor trustee or fiscal agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor trustee or fiscal agent as provided in Section
8.08. Upon any succession of the Trustee or the Fiscal Agent under this
Agreement, the predecessor Trustee or Fiscal Agent shall be entitled to the
payment of compensation and reimbursement for services rendered and expenses
incurred (including without limitation unreimbursed Advances and interest
thereon made thereby) accrued or payable up to and including the effective date
of such termination, at such times and from such sources as if the predecessor
Trustee or Fiscal Agent had not resigned or been removed. Any resignation or
removal of the Trustee shall be a simultaneous removal of the Fiscal Agent
hereunder.
SECTION 8.08 Successor Trustee and Fiscal Agent.
(a) Any successor trustee or fiscal agent appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer, the Special Servicer and to its predecessor trustee or fiscal agent an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee or fiscal agent shall become effective and
such successor trustee or fiscal agent, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee or fiscal agent herein. The predecessor trustee or fiscal agent
shall deliver to the successor trustee or fiscal agent all Mortgage Files and
related documents and statements held by it hereunder (other than any Mortgage
Files at the time held on its behalf by a Custodian, which Custodian shall
become the agent of the successor trustee or fiscal agent), and the Depositor,
the Master Servicer, the Special Servicer and the predecessor trustee or fiscal
agent shall execute and deliver such instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee or fiscal agent all such rights, powers, duties and
obligations, and to enable the successor trustee or fiscal agent to perform its
obligations hereunder.
(b) No successor trustee or fiscal agent shall accept appointment as
provided in this Section 8.08 unless at the time of such acceptance such
successor trustee or fiscal agent shall be eligible under the provisions of
Section 8.06.
243
(c) Upon acceptance of appointment by a successor trustee or fiscal
agent as provided in this Section 8.08, the successor trustee or fiscal agent
shall mail notice of such appointment to the Depositor, the Certificateholders
and the Xxxxxxxx Fashion Center Companion Holders.
SECTION 8.09 Merger or Consolidation of Trustee and Fiscal Agent.
Any entity into which the Trustee or the Fiscal Agent may be merged or
converted or with which it may be consolidated or any entity resulting from any
merger, conversion or consolidation to which the Trustee or the Fiscal Agent
shall be a party, or any entity succeeding to the corporate trust business of
the Trustee or the Fiscal Agent shall be the successor of the Trustee or the
Fiscal Agent hereunder; provided, such entity shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within fifteen days after the receipt
by it of a request to do so, or in case an Event of Default in respect of the
Master Servicer shall have occurred and be continuing, the Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereunder and no notice to Holders of Certificates of
the appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this
244
Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11 Appointment of Custodians.
(a) The Trustee may, with the consent of the Master Servicer and the
Majority Certificateholder of the Controlling Class, appoint one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to supervision
by federal or state authority, shall itself (or together with an affiliate
guaranteeing its financial performance) have a combined capital and surplus of
at least $15,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File, shall maintain and keep in full force and
effect throughout the term of this Agreement a fidelity bond and an errors and
omissions insurance policy covering its officers and employees and other persons
acting on its behalf in connection with its activities under this Agreement in
the amount of coverage customary for custodians acting in such capacity, and
shall not be the Depositor, a Mortgage Loan Seller or any Affiliate of the
Depositor or a Mortgage Loan Seller. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian.
(b) Any Custodian appointed by the Trustee under this Agreement shall
not assign any of its rights or delegate any of its duties under this Agreement
to any other Person without the prior written consent of the Depositor and the
Majority Certificateholder of the Controlling Class (such consent not to be
unreasonably withheld, conditioned or delayed).
SECTION 8.12 Access to Certain Information.
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee ten copies of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered
245
Certificate belongs. In addition, if any such private placement memorandum or
disclosure document is revised, amended or supplemented at any time following
the delivery thereof to the Trustee, the Depositor promptly shall inform the
Trustee of such event and shall deliver to the Trustee ten copies of the private
placement memorandum or disclosure document, as revised, amended or
supplemented. The Trustee shall maintain at its offices primarily responsible
for administering the Trust Fund (or at the Primary Servicing Office of the
Master Servicer) and shall, upon reasonable advance notice, make available
during normal business hours for review by any Holder, Certificate Owner or
prospective transferee of a Certificate or interest therein, originals or copies
of the following items: (i) in the case of a Holder, Certificate Owner or
prospective transferee of a Non-Registered Certificate or interest therein, any
private placement memorandum or other disclosure document relating to the Class
of Certificates to which such Non-Registered Certificate belongs, in the form
most recently provided to the Trustee; and (ii) in all cases, (A) this Agreement
and any amendments hereto entered into pursuant to Section 11.01, (B) all
reports required to be delivered to Certificateholders of the relevant Class
pursuant to Section 4.02 since the Closing Date, (C) all Officer's Certificates
delivered to the Trustee since the Closing Date pursuant to Section 3.13, (D)
all accountants' reports delivered to the Trustee since the Closing Date
pursuant to Section 3.14, (E) the most recent inspection report prepared by the
Master Servicer or Special Servicer and delivered to the Trustee in respect of
each Mortgaged Property pursuant to Section 3.12, (F) as to each Mortgage Loan
pursuant to which the related Mortgagor is required to deliver such items or the
Master Servicer or Special Servicer has otherwise acquired such items, the most
recent annual operating statement and rent roll of the related Mortgaged
Property and financial statements of the related Mortgagor collected by the
Master Servicer or the Special Servicer and delivered to the Trustee pursuant to
Section 3.12, (G) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property securing a Defaulted Mortgage Loan as to which
the environmental testing contemplated by Section 3.09(c) revealed that either
of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof was not satisfied (but only for so long as such Mortgaged Property or
the related Mortgage Loan are part of the Trust Fund), (H) the respective
Mortgage Files, including, without limitation, any and all modifications,
waivers and amendments of the terms of a Mortgage Loan entered into by the
Master Servicer or the Special Servicer and delivered to the Trustee pursuant to
Section 3.21 (but only for so long as the affected Mortgage Loan is part of the
Trust Fund), (I) copies of any Appraisals required or permitted to be performed
pursuant to the terms of this Agreement and delivered to the Trustee, and (J)
any and all Officer's Certificates and other evidence delivered to or retained
by the Trustee to support the Master Servicer's, Special Servicer's, Trustee's
or Fiscal Agent's determination that any Advance was or, if made, would be a
Nonrecoverable Advance. Copies of any and all of the foregoing items will be
available from the Trustee upon written request; however, the Trustee shall be
permitted to require from the requesting Certificateholder payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies.
In connection with providing access to or copies of the items described in
the preceding paragraph, the Trustee may require (a) in the case of Certificate
Owners, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, a written confirmation executed by the requesting Person,
in form reasonably satisfactory to the Trustee,
246
generally to the effect that such Person is a prospective purchaser of a
Certificate or an interest therein, is requesting the information solely for use
in evaluating a possible investment in Certificates and will otherwise keep such
information confidential. All Certificateholders, by the acceptance of their
Certificates, shall be deemed to have agreed to keep such information
confidential. Notwithstanding the foregoing provisions of this Section 8.12(a),
the Trustee shall have no responsibility for the accuracy, completeness or
sufficiency for any purpose of any information so made available or furnished by
it pursuant to this Section 8.12(a).
(b) The Trustee shall provide or cause to be provided to the Depositor,
the Master Servicer, and the Special Servicer, and to the Office of Thrift
Supervision, the Federal Deposit Insurance Corporation, and any other federal or
state banking or insurance regulatory authority that may exercise authority over
any Certificateholder, access to the Mortgage Files and any other documentation
regarding the Mortgage Loans, Xxxxxxxx Fashion Center Companion Loans and the
Trust Fund within its control which may be required by this Agreement or by
applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it.
SECTION 8.13 Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants to the Master Servicer, for its
own benefit and the benefit of the Certificateholders, and to the Special
Servicer and the Depositor, as of the Closing Date, that:
(a) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States of
America.
(i) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee'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.
(ii) This Agreement, assuming due authorization, execution and
delivery by the Special Servicer, the Master Servicer, the Fiscal Agent and the
Depositor, constitutes a valid, legal and binding obligation of the Trustee,
enforceable against the Trustee in accordance with the terms hereof, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and general principles
of equity, regardless of whether such enforcement is considered in a proceeding
in equity or at law.
(iii) The Trustee is not in default with respect to any order or
decree of any court, or any order, regulation or demand of any federal, state,
municipal or governmental agency having jurisdiction, which default, in the
Trustee's good faith and reasonable judgment, is likely to affect materially and
adversely the ability of the Trustee to perform its obligations or the financial
condition or operations of the Trustee or its properties.
247
(iv) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee from
entering into this Agreement or, in the Trustee's good faith and reasonable
judgment, is likely to materially and adversely affect the ability of the
Trustee to perform its obligations under this Agreement.
(v) 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 Trustee with this Agreement, or the consummation by the
Trustee of any transaction contemplated hereby, other than (1) such consents,
approvals, authorization, 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 performance by the Trustee under this Agreement.
(b) The Fiscal Agent hereby represents and warrants to the Master
Servicer, for its own benefit and the benefit of the Certificateholders, and to
the Special Servicer and the Depositor, as of the Closing Date, that:
(i) The Fiscal Agent is an organization organized under the laws
of the Netherlands, duly organized, validly existing and in good standing under
the laws governing its creation and existence.
(ii) The execution and delivery of this Agreement by the Fiscal
Agent, and the performance and compliance with the terms of this Agreement by
the Fiscal Agent, will not violate the Fiscal Agent'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) This Agreement, assuming due authorization, execution and
delivery by the Special Servicer, the Master Servicer, the Trustee and the
Depositor, constitutes a valid, legal and binding obligation of the Fiscal
Agent, enforceable against the Fiscal Agent in accordance with the terms hereof,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and general
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(iv) The Fiscal Agent is not in default with respect to any order
or decree of any court, or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default, in the Fiscal Agent's
good faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Fiscal Agent to perform its obligations or the
financial conditions or operations of the Fiscal Agent or its properties.
(v) No litigation is pending or, to the best of the Fiscal
Agent's knowledge, threatened against the Fiscal Agent which would prohibit the
Fiscal Agent from entering into this Agreement or, in the Fiscal Agent's good
faith and reasonable judgment, is
248
likely to materially and adversely affect the ability of the Fiscal Agent to
perform its obligations under this Agreement.
(vi) 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 Fiscal Agent with this Agreement, or the consummation by
the Fiscal Agent 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 Fiscal Agent under this
Agreement.
SECTION 8.14 Filings with the Securities and Exchange Commission.
(a) Each of the Trustee, the Master Servicer and the Special Servicer
shall reasonably cooperate with the Depositor in connection with the Trust
Fund's satisfying the reporting requirements under the Exchange Act. Based on
information furnished to it by the Master Servicer and the Depositor (in an 80
column unformatted electronic format acceptable to the Trustee), the Trustee
will prepare on behalf of the Trust Fund, Forms 8-K and 10-K customary for
similar securities and any other such periodic reports required to be filed
under the provisions of the Exchange Act, and the Rules and Regulations of the
Commission thereunder and file (via the Commission's Electronic Data Gathering
and Retrieval System) such forms on behalf of the Depositor. Each Form 8-K shall
be filed by the Trustee within 15 days after each Distribution Date, including a
copy of the Distribution Date Statement for such Distribution Date as an exhibit
thereto. Prior to March 30th of each year (or such earlier date as may be
required by the Exchange Act and the Rules and Regulations of the Commission)
the Trustee shall file a Form 10-K, in substance as required by applicable law
or applicable Commission staff's interpretations. Any Form 10-K filed with the
Commission in connection with this Section 8.14 shall include a certification,
signed by the senior officer of the Depositor, in the form attached as Exhibit
S-1 hereto or such other form as may be required or permitted by the Commission
(the "Form 10-K Certification"), in compliance with Rules 13a-14 and 15d-14
under the Exchange Act and any additional directives of the Commission. The Form
10-K Certification shall be delivered to the Trustee for filing by March 20th of
each year (or if not a Business Day, the immediately preceding Business Day).
The Depositor hereby grants to the Trustee a limited power of attorney to
execute and file each such Form 10-K on behalf of the Depositor; provided that
the Trustee shall not execute and file such Form 10-K without the consent of the
Depositor. Such power of attorney shall continue until the earlier of either (i)
receipt by the Trustee from the Depositor of written termination of such power
of attorney and (ii) the termination of the Trust. Notwithstanding the
foregoing, in the event that the Commission does not accept a Form 10-K
Certification signed by the Depositor where the related Form 10-K is signed by
the Trustee on behalf of the Depositor, the Trustee shall prepare such Form 10-K
to be signed by the Depositor and the Depositor shall sign such form. In
connection with the Form 10-K Certification, the Trustee shall provide the
Depositor with a back-up certification substantially in the form attached hereto
as Exhibit S-2, and each of the Master Servicer and the Special Servicer shall
provide the Depositor with a back-up certification substantially in the form
attached hereto as Exhibit S-3. Each such certification shall be delivered to
the Depositor by March 15th of each year (or if not a Business Day, the
immediately preceding Business Day). Such Form 10-K shall include as
249
exhibits the Master Servicer's and the Special Servicer's annual statement of
compliance described under Section 3.13 and the accountant's report described
under Section 3.14, in each case to the extent they have been timely delivered
to the Trustee. If they are not so timely delivered, the Trustee shall file an
amended Form 10-K including such documents as exhibits reasonably promptly after
they are delivered to the Trustee. The Trustee shall have no liability with
respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Trustee's inability or failure to obtain any
information not resulting from its own negligence, willful misconduct or bad
faith. Prior to January 30th of the first year in which the Trustee is able to
do so under applicable law, the Trustee shall, in accordance with the Exchange
Act and the Rules and Regulations of the Commission, timely file a Form 15
Suspension Notification with respect to the Trust Fund.
(b) Each of the Trustee, the Master Servicer and the Special Servicer
shall severally and not jointly indemnify and hold harmless the Depositor and
its officers, directors, employees, agents and Affiliates from and against any
and all loss, liability or expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
any breach of any obligations of the Trustee, the Master Servicer or the Special
Servicer, as applicable, under this Section 8.14 or the negligence, bad faith or
willful misconduct of the Trustee, the Master Servicer or the Special Servicer,
as the case may be, in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Depositor, then (i)
the Trustee agrees that it shall contribute to the amount paid or payable to the
Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Trustee on the other in connection with a
breach of the Trustee's obligations under this Section 8.14 or the Trustee's
negligence, bad faith or willful misconduct in connection therewith, (ii) the
Master Servicer agrees that it shall contribute to the amount paid or payable by
the Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Master Servicer on the other in connection
with a breach of the Master Servicer's obligations under this Section 8.14 or
the Master Servicer's negligence, bad faith or willful misconduct in connection
therewith and (iii) the Special Servicer agrees that it shall contribute to the
amount paid or payable by the Depositor as a result of the losses, claims,
damages or liabilities of the Depositor in such proportion as is appropriate to
reflect the relative fault of the Depositor on the one hand and the Special
Servicer on the other in connection with a breach of the Special Servicer's
obligations under this Section 8.14 or the Special Servicer's negligence, bad
faith or willful misconduct in connection therewith.
(c) Upon any filing with the Commission, the Trustee shall promptly
deliver to the Depositor, Master Servicer and Special Servicer a copy of any
such executed report, statement or information.
(d) This Section 8.14 may be amended in accordance with this Agreement
without the consent of the Certificateholders.
250
SECTION 8.15 Fiscal Agent Termination Event.
"Fiscal Agent Termination Event," wherever used herein, means any one of
the following events:
(i) Any failure by the Fiscal Agent to remit to the Trustee when
due any required Advances; or
(ii) A decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding up or liquidation of its
affairs, shall have been entered against the Fiscal Agent and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or of or
relating to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(v) Moody's shall indicate its intent to reduce, qualify or
withdraw the outstanding rating of any Class of Certificates because the
prospective financial condition or capacity to make Advances of the Fiscal Agent
is insufficient to maintain such rating; or
(vi) The long-term unsecured debt of the Fiscal Agent is rated
below "AA-" (or "A+" if the short-term unsecured debt rating of the Fiscal Agent
is at least "A-1" by Standard & Poor's) or "Aa3", as the case may be, by
Standard & Poor's or Moody's, respectively, or such other rating as shall not
result in the qualification, downgrade or withdrawal of any of the ratings then
assigned to the respective Classes of Certificates, as confirmed in writing by
each Rating Agency.
SECTION 8.16 Procedure Upon Termination Event.
On the date specified in a written notice of termination given to the
Fiscal Agent pursuant to Section 8.07, all authority, power and rights of the
Fiscal Agent under this Agreement, whether with respect to the Mortgage Loans,
Xxxxxxxx Fashion Center Companion Loans or otherwise, shall terminate and a
successor Fiscal Agent shall be appointed by the Trustee, with the consent of
the Depositor; provided that in no event shall the termination of the Fiscal
Agent be effective until Rating Agency Confirmation shall have been obtained
with respect to a successor fiscal agent from each of Standard & Poor's and
Moody's; provided, that no such Rating Agency Confirmation shall be required
from Standard & Poor's if the successor
251
Fiscal Agent is rated at least "AA" by Standard & Poor's. The Fiscal Agent
agrees to cooperate with the Trustee in effecting the termination of the Fiscal
Agent's responsibilities and rights hereunder as Fiscal Agent.
SECTION 8.17 Xxxxxxxx Fashion Center Companion Paying Agent.
(a) The Xxxxxxxx Fashion Center Companion Paying Agent undertakes to
perform such duties and only such duties as are specifically set forth herein.
(b) No provision of this Agreement shall be construed to relieve the
Xxxxxxxx Fashion Center Companion Paying Agent from liability for its own
negligent failure to act, bad faith or its own willful misfeasance; provided,
however, that the duties and obligations of the Xxxxxxxx Fashion Center
Companion Paying Agent shall be determined solely by the express provisions of
this Agreement, the Xxxxxxxx Fashion Center Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Xxxxxxxx
Fashion Center Companion Paying Agent and, in the absence of bad faith on the
part of the Xxxxxxxx Fashion Center Companion Paying Agent, the Xxxxxxxx Fashion
Center Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Xxxxxxxx Fashion Center Companion Paying
Agent by any Person and which on their face do not contradict the requirements
of this Agreement.
(c) Upon the resignation or removal of the Trustee pursuant to Article
VII of this Agreement, the Xxxxxxxx Fashion Center Companion Paying Agent shall
be deemed simultaneously to resign or be removed under this Agreement and the
successor Trustee shall thereafter be the Xxxxxxxx Fashion Center Companion
Paying Agent. The Xxxxxxxx Fashion Center Companion Paying Agent's duties and
obligations hereunder shall terminate in the event the Xxxxxxxx Fashion Center
A/B Loan is no longer serviced pursuant to this Agreement.
(d) The Xxxxxxxx Fashion Center Companion Paying Agent and any of its
directors, officers, employees or agents shall be indemnified and held harmless
by the Xxxxxxxx Fashion Center Companion Holders (to the extent the losses,
liabilities, damages, claims and expenses related to a Xxxxxxxx Fashion Center
Companion Loan) (pro rata in accordance with the Xxxxxxxx Fashion Center
Companion Holder Principal Balances), to the extent of amounts in the Xxxxxxxx
Fashion Center Custodial Account (first from amounts on deposit in respect of
the Xxxxxxxx Fashion Center B Note and then from amounts on deposit in respect
of the Xxxxxxxx Fashion Center A-2 Loan) against any and all losses,
liabilities, damages or claims incurred in connection with any legal action
relating to this Agreement or unanticipated "out-of-pocket" expenses (other than
the expense of any employee's compensation and any expense allocable to the
Trustee's overhead, but including reasonable attorney's fees) arising in respect
of this Agreement other than those resulting from the negligence, bad faith or
intentional misconduct of the Xxxxxxxx Fashion Center Companion Paying Agent.
(e) Any notice, certificate, certification or other information
delivered or provided to the the Trustee hereunder, to the extent such
information is also required to be delivered or provided to the Xxxxxxxx Fashion
Center Companion Paying Agent hereunder, shall
252
be deemed to also be delivered to the Xxxxxxxx Fashion Center Companion Paying
Agent at such time.
(f) This Section shall survive the termination of this Agreement or the
resignation or removal of the Xxxxxxxx Fashion Center Companion Paying Agent, as
regards rights accrued prior to such resignation or removal.
SECTION 8.18 Xxxxxxxx Fashion Center Companion Holder Register.
The Xxxxxxxx Fashion Center Companion Paying Agent shall maintain a
register (the "Xxxxxxxx Fashion Center Companion Holder Register") on which it
will record the names and addresses of the Xxxxxxxx Fashion Center Companion
Holders and wire transfer instructions for the Xxxxxxxx Fashion Center Companion
Holders from time to time, to the extent such information is provided in writing
to it by a Xxxxxxxx Fashion Center Companion Holder. Each Xxxxxxxx Fashion
Center Companion Holder hereby agrees to inform the Xxxxxxxx Fashion Center
Companion Paying Agent of its name, address, taxpayer identification number and
wiring instructions and of any transfer thereof (together with any instruments
of transfer).
In no event shall the Xxxxxxxx Fashion Center Companion Paying Agent be
obligated to pay any party the amounts payable to a Xxxxxxxx Fashion Center
Companion Holder hereunder other than the party listed as the Chandler Fashion
Center Companion Holder on the Xxxxxxxx Fashion Center Companion Holder
Register. In the event that a Chandler Fashion Center Companion Holder transfers
the related Xxxxxxxx Fashion Center B Note or Xxxxxxxx Fashion Center A-2 Note
without notice to the Xxxxxxxx Fashion Center Companion Paying Agent, the
Xxxxxxxx Fashion Center Companion Paying Agent shall have no liability
whatsoever for any misdirected payment on such Xxxxxxxx Fashion Center B Note or
Xxxxxxxx Fashion Center A-2 Note and shall have no obligation to recover and
redirect such payment.
The Xxxxxxxx Fashion Center Companion Paying Agent shall promptly provide
the names and addresses of any Xxxxxxxx Fashion Center Companion Holder to any
party hereto or any successor thereto upon written request, and any such party
or successor may, without further investigation, conclusively rely upon such
information. The Xxxxxxxx Fashion Center Companion Paying Agent shall have no
liability to any Person for the provision of any such names and addresses.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Mortgage
Loans.
(a) Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer, the Fiscal Agent and the Trustee (other
than the obligations of the Trustee to provide for and make payments to
Certificateholders as set forth herein) shall terminate upon payment (or
provision for payment) to the Certificateholders and the Xxxxxxxx Fashion Center
Companion Holders, if any, of all amounts held by or on behalf of the Trustee
and required hereunder to be
253
so paid on the Distribution Date following the earlier to occur of (i) the
purchase by the Master Servicer, the Majority Certificateholder of the
Controlling Class or the Depositor pursuant to subsection (b), of all Mortgage
Loans and each REO Property remaining in REMIC I at a price (to be determined as
of the end of the Collection Period for the anticipated Final Distribution Date)
equal to (A) the aggregate Purchase Price of all the Mortgage Loans included in
REMIC I, plus (B) the fair market value, as determined by the Special Servicer,
of each REO Property, if any, included in REMIC I, minus (C) solely in the case
where the Master Servicer is effecting such purchase, the aggregate amount of
unreimbursed Advances, together with any Advance Interest accrued and payable to
the Master Servicer in respect of such Advances and any unpaid Servicing Fees,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase); provided,
however, that any such purchase with respect to the Additional Servicing Fee
Mortgage Loans shall be subject to the rights of the applicable Designated
Sub-Servicer to continue to sub-service such Additional Servicing Fee Mortgage
Loans and the rights of Archon, GSMC, the applicable Designated Sub-Servicer and
the Master Servicer, as applicable, to receive or retain their applicable
portion, if any, of the Additional Servicing Fee pursuant to the applicable
Designated Sub-Servicer Agreement, (ii) the exchange by the Remaining
Certificateholder pursuant to subsection (f) below, and (iii) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in REMIC I; provided, however, that in no event
shall the trust created hereby continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
(b) The Master Servicer, the Majority Certificateholder of the
Controlling Class or the Depositor each may, at its option, elect to purchase
all of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (i) of the preceding paragraph by giving written notice
to the other parties hereto no later than 60 days prior to the anticipated date
of purchase; provided, however, that the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor may so elect to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Loans and any REO
Loans remaining in the Trust Fund at the time of such election is less than 1%
of the aggregate Cut-off Date Principal Balance of the Mortgage Loans set forth
in the Preliminary Statement. Such option shall be exercisable by each such
Person in the priority in which such Person is listed in the immediately
foregoing sentence. In the event that the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor purchases all of the
Mortgage Loans and each REO Property remaining in REMIC I in accordance with the
preceding sentence, the Master Servicer, the Majority Certificateholder of the
Controlling Class or the Depositor, as applicable, shall deposit in the
Distribution Account not later than the Master Servicer Remittance Date relating
to the Final Distribution Date an amount in immediately available funds equal to
the above-described purchase price (exclusive of any portion thereof that would
be payable to any Person other than the Certificateholders pursuant to Section
3.05(a) if on deposit in the Certificate Account, which portion shall be
deposited in the Certificate Account). In addition, the Master Servicer shall
(i) transfer to the Distribution Account all amounts required to be transferred
thereto on such Master Servicer Remittance Date from the Certificate Account
pursuant to the second paragraph of Section 3.04(b), together with any other
amounts on deposit in the Certificate Account that would otherwise be held for
future distribution. Upon confirmation that such final transfers have been
254
made, the Trustee shall release or cause to be released to the Master Servicer,
the Majority Certificateholder of the Controlling Class or the Depositor, as
applicable, the Mortgage Files for the remaining Mortgage Loans and any Reserve
Funds and Escrow Payments in any Reserve Accounts or Servicing Account, as
applicable, and shall execute all assignments, endorsements and other
instruments furnished to it by the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor, as applicable, as
shall be necessary to effectuate transfer of the Mortgage Loans and REO
Properties remaining in REMIC I. All Servicing Files for the remaining Mortgage
Loans and REO Properties shall be delivered to the purchasing entity.
(c) Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and Xxxxxxxx Fashion Center Companion Holders and,
if not previously notified pursuant to the preceding paragraph, to the other
parties hereto mailed (a) in the event such notice is given in connection with
the Master Servicer's, the Majority Certificateholder of the Controlling Class's
or the Depositor's purchase of all of the Mortgage Loans and each REO Property
remaining in REMIC I, not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of the final distribution on the
Certificates or (b) otherwise during the month of such final distribution on or
before the Determination Date in such month, in each case specifying (i) the
Distribution Date upon which the Trust Fund will terminate and final payment of
the Certificates will be made, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Distribution Account that are allocable to payments on the Class
to which the Certificates so presented and surrendered belong. Amounts on
deposit in the Distribution Account as of the Final Distribution Date (exclusive
of any portion of such amounts payable or reimbursable to any Person pursuant to
clauses (ii) through (viii) of Section 3.05(b)) shall be allocated for the
purposes, in the amounts and in accordance with the priority set forth in
Section 4.01. Any funds in the Distribution Account not distributed on such
Distribution Date shall be set aside and held uninvested in trust for the
benefit of Certificateholders not presenting and surrendering their Certificates
in the aforesaid manner, and shall be disposed of in accordance with the last
paragraph of Section 4.01(g).
(e) For purposes of this Section 9.01, the Remaining Certificateholder
shall have the first option to terminate the Trust Fund, pursuant to subsection
(f) below, and then the Master Servicer, and then the Depositor, in each of the
last two cases, pursuant to subsection (b).
(f) Following the date on which the aggregate Certificate Balance of
the Class A, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates is reduced to zero, the Remaining Certificateholder shall have the
right to exchange all of its Certificates, including the Class X Certificates,
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) by giving written notice to all the parties hereto no later than
60 days prior to the
255
anticipated date of exchange. In the event that the Remaining Certificateholder
elects to exchange all of its Certificates, including the Class X Certificates,
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund in accordance with the preceding
sentence, such Remaining Certificateholder, not later than the Final
Distribution Date, shall deposit in the Certificate Account an amount in
immediately available funds equal to all amounts due and owing to the Depositor,
the Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent
hereunder through the date of the liquidation of the Trust Fund that may be
withdrawn from the Certificate Account, but only to the extent that such amounts
are not already on deposit in the Certificate Account. Upon confirmation that
such final deposits have been made and following the surrender of all remaining
Certificates by the Remaining Certificateholder on the Final Distribution Date,
the Trustee shall, upon receipt of a Request for Release from the Master
Servicer, release or cause to be released to the Remaining Certificateholder or
any designee thereof, the Mortgage Files for the remaining Mortgage Loans and
shall execute all assignments, endorsements and other instruments furnished to
it by the Remaining Certificateholder as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties remaining in the Trust Fund,
and the Trust Fund shall be liquidated in accordance with Section 9.02.
Thereafter, the Trust Fund and the respective obligations and responsibilities
under this Agreement of the Depositor, the Master Servicer, the Special
Servicer, the Trustee (other than annual tax returns and maintenance of books
and records and the preparation and filing of final tax returns), and the Fiscal
Agent shall terminate. Such transfers shall be subject to any rights of any
Sub-Servicers to service (or to perform select servicing functions with respect
to) the Mortgage Loans. For federal income tax purposes, the Remaining
Certificateholder shall be deemed to have purchased the assets of REMIC I for an
amount equal to the remaining Certificate Balance of its remaining Certificates
(other than the Residual Certificates), plus accrued and unpaid interest with
respect thereto, and the Trustee shall credit such amounts against amounts
distributed in respect of such Certificates. The remaining Mortgage Loans and
REO Properties are deemed distributed to the Remaining Certificateholder in
liquidation of the Trust Fund pursuant to Section 9.02.
SECTION 9.02 Additional Termination Requirements.
(a) In the event the Master Servicer, the Majority Certificateholder of
the Controlling Class, or the Depositor purchases all of the Mortgage Loans and
each REO Property remaining in REMIC I, or the Remaining Certificateholder
exchanges all of its Certificates, as provided in Section 9.01, the Trust Fund
(and, accordingly, REMIC I, REMIC II and REMIC III) shall be terminated in
accordance with the following additional requirements, unless the Master
Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor, or the Remaining Certificateholder, as the case may be, obtains at
its own expense and delivers to the Trustee an Opinion of Counsel, addressed to
the Depositor, the Master Servicer and the Trustee, to the effect that the
failure of the Trust Fund to comply with the requirements of this Section 9.02
will not (subject to Section 10.01(f)) result in the imposition of taxes on
"prohibited transactions" of REMIC I, REMIC II or REMIC III as defined in
Section 860F of the Code or cause REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for each of
REMIC I, REMIC II and
256
REMIC III pursuant to Treasury regulation Section 1.860F-1 and shall satisfy all
requirements of a qualified liquidation under Section 860F of the Code and any
regulations thereunder;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall sell
all of the assets of REMIC I to the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor, as applicable, for
cash; and
(iii) immediately following the making of the final payment on
the Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the related Class of Residual
Certificates all cash on hand in the related REMIC (other than cash retained to
meet claims), and REMIC I, REMIC II and REMIC III shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Trustee to adopt a plan of complete liquidation of REMIC
I, REMIC II and REMIC III, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The Trustee shall make an election to treat each of REMIC I, REMIC
II and REMIC III as a REMIC under the Code and, if necessary, under applicable
state law. Such election will be made on Form 1066 or other appropriate federal
tax or information return (including Form 8811) or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued. The REMIC I Regular Interests are hereby designated as
the "regular interests" (within the meaning of Section 860G(a)(1) of the Code),
and the Class R-I Certificates are hereby designated as the sole class of
"residual interests" (within the meaning of Section 860G(a)(2) of the Code), in
REMIC I. The REMIC II Regular Interests are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the Class
R-II Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
The REMIC III Regular Certificates are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) and the Class
R-III Certificates will be the sole class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC III. The Master Servicer,
the Special Servicer and the Trustee shall not (to the extent within the control
of each) permit the creation of any "interests" (within the meaning of Section
860G of the Code) in REMIC I, REMIC II or REMIC III other than the Certificates.
(b) The Closing Date is hereby designated as the "startup day" of each
of REMIC I, REMIC II and REMIC III within the meaning of Section 860G(a)(9) of
the Code.
(c) The Trustee, as agent for the tax matters person of each of REMIC
I, REMIC II and REMIC III, shall (i) act on behalf of the REMIC in relation to
any tax matter or controversy involving the Trust Fund and (ii) represent the
Trust Fund in any administrative or
257
judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto. The legal expenses, including without
limitation attorneys' or accountants' fees, and costs of any such proceeding and
any liability resulting therefrom shall be expenses of the Trust Fund and the
Trustee shall be entitled to reimbursement therefor out of amounts attributable
to the Mortgage Loans and any REO Properties on deposit in the Certificate
Account as provided by Section 3.05(a) unless such legal expenses and costs are
incurred by reason of the Trustee's willful misfeasance, bad faith or negligence
or otherwise payable by the Trustee pursuant to Section 10.01(g)(i). In the case
of each of REMIC I, REMIC II and REMIC III, the Holder of Residual Certificates
representing the largest Percentage Interest in the related Class thereof shall
be designated, in the manner provided under Treasury Regulations Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1, as the
tax matters person of such REMIC. By its acceptance thereof, the Holder of
Residual Certificates representing the largest Percentage Interest in each Class
thereof hereby agrees to irrevocably appoint the Trustee as its agent to perform
all of the duties of the tax matters person for the related REMIC created
hereunder.
(d) The Trustee shall prepare or cause to be prepared, sign and file,
in a timely manner, all of the Tax Returns that it determines are required with
respect to the Grantor Trust and each REMIC created hereunder. The expenses of
preparing such returns shall be borne by the Trustee without any right of
reimbursement therefor.
(e) The Trustee shall provide (i) to any Transferor of a Residual
Certificate such information as is necessary for the application of any tax
relating to the transfer of such Residual Certificate to any Person who is not a
Permitted Transferee as provided in Section 5.02(d)(iii), (ii) to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone
number of the person who will serve as the representative of each of REMIC I,
REMIC II and REMIC III.
(f) The Trustee shall take such actions and shall cause each REMIC
created hereunder to take such actions as are reasonably within the Trustee's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status thereof as a REMIC under the REMIC
Provisions. The Trustee shall not knowingly or intentionally take any action,
cause REMIC I, REMIC II or REMIC III to take any action or fail to take (or fail
to cause to be taken) any action reasonably within its control and the scope of
duties more specifically set forth herein, that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) adversely affect the status of
REMIC I, REMIC II or REMIC III as a REMIC or (ii) result (subject to the
following sentence) in the imposition of a tax upon REMIC I, REMIC II or REMIC
III (including but not limited to the tax on prohibited transactions as defined
in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code) (either such event, an "Adverse REMIC
Event") unless the Trustee receives an Opinion of Counsel (at the expense of the
party seeking to take such action or, if such party fails to pay such expense,
and the Trustee determines that taking such action is in the best interest of
REMIC I, REMIC II or REMIC III and the Certificateholders, at the expense of the
Trust Fund, but in no event at the expense of the Trustee) to the effect that
the contemplated action will not, with respect to any REMIC created hereunder
adversely affect such status or, unless the Master
258
Servicer, the Trustee, or the Special Servicer, as applicable (or other Person
acceptable to the Trustee), determines that the monetary exposure to REMIC I,
REMIC II and REMIC III is not material and in its sole discretion agrees to
indemnify, to the extent reasonably acceptable to the Trustee, the Trust Fund
against the imposition of such tax. Wherever in this Agreement a contemplated
action may not be taken because the timing of such action might result in the
imposition of a tax on the Trust Fund, or may only be taken pursuant to an
Opinion of Counsel that such action would not impose a tax on the Trust Fund,
such action may nonetheless be taken; provided, that the indemnity given in the
preceding sentence with respect to any taxes that might be imposed on the Trust
Fund has been given and that all other preconditions to the taking of such
action have been satisfied. The Trustee shall not take or fail to take any
action (whether or not authorized hereunder) as to which the Master Servicer has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to the Trust Fund or its
assets, or causing the Trust Fund to take any action, which is not expressly
permitted under the terms of this Agreement, each of the parties hereto will
consult with the Trustee or its designee, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to REMIC I,
REMIC II or REMIC III, and such party shall not take any such action, or cause
REMIC I, REMIC II or REMIC III to take any such action, as to which the Trustee
has advised it in writing that an Adverse REMIC Event could occur. The Trustee
may consult with counsel to make such written advice, and the cost of same shall
be borne by the party seeking to take the action not expressly permitted by this
Agreement. At all times as may be required by the Code, the Trustee will to the
extent within its control and the scope of its duties as specifically set forth
herein, maintain substantially all of the assets of REMIC I as "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions"
of REMIC I, REMIC II or REMIC III as defined in Section 860F(a)(2) of the Code,
on "net income from foreclosure property" of REMIC I, REMIC II or REMIC III as
defined in Section 860G(c) of the Code, or on any contributions to REMIC I,
REMIC II or REMIC III after the Startup Day therefor pursuant to Section 860G(d)
of the Code, or any other tax is imposed by the Code or any applicable
provisions of state or local laws, such tax shall be charged (i) to the Trustee,
if such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Agreement, (ii) to any other party hereto, if such tax
arises out of or results from a breach by such party of any of its obligations
under this Agreement, or (iii) otherwise (including, without limitation, in the
case of any tax permitted to be incurred pursuant to Section 3.17(a)) against
amounts on deposit in the Distribution Account as provided by Section 3.05(b).
(h) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each of REMIC I, REMIC II and REMIC III on a
calendar year and on an accrual basis or as otherwise may be required by the
REMIC Provisions.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Trust Fund unless the Trustee shall have received
an Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at
any time that any Certificates are outstanding or subject such REMIC to any tax
under
259
the REMIC Provisions or other applicable provisions of federal, state and local
law or ordinances.
(j) None of the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which REMIC I, REMIC II or REMIC III will
receive a fee or other compensation for services nor (to the extent within its
control) permit REMIC I, REMIC II or REMIC III to receive any income from assets
other than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Within 30 days after the Closing Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for each of REMIC I, REMIC II and REMIC III.
(l) None of the Trustee, the Master Servicer, or the Special Servicer
shall sell, dispose of or substitute for any of the Mortgage Loans (except in
connection with (i) the default, imminent default or foreclosure of a Mortgage
Loan, including but not limited to, the acquisition or sale of a Mortgaged
Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy of REMIC
I, REMIC II or REMIC III, (iii) the termination of the Trust Fund pursuant to
Article IX of this Agreement or (iv) a purchase of Mortgage Loans pursuant to or
as contemplated by Section 2.03 or 3.18 of this Agreement) or acquire any assets
for the Trust Fund or sell or dispose of any investments in the Certificate
Account, the Distribution Account, the Xxxxxxxx Fashion Center Custodial Account
or the REO Account for gain, or accept any contributions to the Trust Fund after
the Closing Date, unless it has received an Opinion of Counsel that such sale,
disposition, substitution or acquisition will not (a) affect adversely the
status of REMIC I, REMIC II or REMIC III as a REMIC or, (b) subject to Section
10.01(f), cause REMIC I, REMIC II or REMIC III to be subject to a tax on
"prohibited transactions" or "contributions" pursuant to the REMIC Provisions.
(m) The Trustee hereby agrees to administer the Countryside Village
Apartments REMIC and the Garden Lakes Shopping Center REMIC in accordance with
the terms of its underlying REMIC Declaration, without any right to additional
compensation under this Agreement. Unless otherwise provided in, or in conflict
with the intent of, the applicable underlying REMIC Declaration, the Trustee
shall administer the Countryside Village Apartments REMIC and the Garden Lakes
Shopping Center REMIC in accordance with the provisions of Sections 3.16(a),
3.17, 3.19, 3.21 and this Section 10.01. The Trustee is permitted to be
reimbursed for any expenses attributable to its administration of such REMIC to
the same extent that the Trustee is permitted to be reimbursed in this Section
10.01 for any expenses attributable to its administration of REMIC I, REMIC II
or REMIC III. Such reimbursement amounts shall be deemed to be a reduction of
either interest or principal, as the case may be, that was paid and received
with respect to the Countryside Village Apartments REMIC and the Garden Lakes
Shopping Center REMIC.
260
SECTION 10.02 Depositor, Master Servicer, Special Servicer, Fiscal Agent
Trustee to Cooperate.
(a) The Depositor shall provide or cause to be provided to the Trustee,
within ten days after the Closing Date, all information or data that the Trustee
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flow of the Certificates.
(b) The Master Servicer, the Special Servicer, and the Fiscal Agent and
the Depositor shall each furnish such reports, certifications and information,
and access to such books and records maintained thereby, as may relate to the
Certificates or the Trust Fund and as shall be reasonably requested by the
Trustee in order to enable it to perform its duties hereunder.
SECTION 10.03 Grantor Trust Administration.
(a) The Trustee shall treat the Grantor Trust, for tax return
preparation purposes, as a grantor trust under the Code and, if necessary, under
applicable state law and will file appropriate federal or state Tax Returns for
each taxable year ending on or after the last day of the calendar year in which
the Certificates are issued.
(b) The Trustee shall pay out of its own funds any and all routine tax
administration expenses of the Trust Fund incurred with respect to the Grantor
Trust (but not including any professional fees or expenses related to audits or
any administrative or judicial proceedings with respect to the Trust Fund that
involve the Internal Revenue Service or state tax authorities which
extraordinary expenses shall be payable or reimbursable to the Trustee from the
Trust Fund unless otherwise provided in Section 10.01(e) or 10.01(f)).
(c) The Trustee shall prepare, sign and file when due all of the Tax
Returns in respect of the Grantor Trust. The expenses of preparing and filing
such returns shall be borne by the Trustee without any right of reimbursement
therefor. The other parties hereto shall provide on a timely basis to the
Trustee or its designee such information with respect to the Grantor Trust as is
in its possession and reasonably requested by the Trustee to enable it to
perform its obligations under this Section 10.03. Without limiting the
generality of the foregoing, the Depositor, within ten days following the
Trustee's request therefor, shall provide in writing to the Trustee such
information as is reasonably requested by the Trustee for tax purposes, and the
Trustee's duty to perform its reporting and other tax compliance obligations
under this Section 10.03 shall be subject to the condition that it receives from
the Depositor such information possessed by the Depositor that is necessary to
permit the Trustee to perform such obligations.
(d) The Trustee shall perform on behalf of the Grantor Trust all
reporting and other tax compliance duties that are required in respect thereof
under the Code, the Grantor Trust Provisions or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority.
(e) The Trustee shall perform its duties hereunder so as to maintain
the status of the Grantor Trust as a grantor trust under the Grantor Trust
Provisions (and the Master Servicer and the Special Servicer shall assist the
Trustee to the extent reasonably requested by
261
the Trustee and to the extent of information within the Trustee's, the Master
Servicer's or the Special Servicer's possession or control). None of the
Trustee, Master Servicer, the Special Servicer shall knowingly take (or cause
the Grantor Trust to take) any action or fail to take (or fail to cause to be
taken) any action that, under the Grantor Trust Provisions, if taken or not
taken, as the case may be, could adversely affect the status of the Grantor
Trust as a grantor trust under the Grantor Trust Provisions (any such adverse
effect on grantor trust status, an "Adverse Grantor Trust Event"), unless the
Trustee has obtained or received an Opinion of Counsel (at the expense of the
party requesting such action or at the expense of the Trust Fund if the Trustee
seeks to take such action or to refrain from taking any action for the benefit
of the Certificateholders) to the effect that the contemplated action will not
result in an Adverse Grantor Trust Event. None of the other parties hereto shall
take any action or fail to take any action (whether or not authorized hereunder)
as to which the Trustee has advised it in writing that the Trustee has received
or obtained an Opinion of Counsel to the effect that an Adverse Grantor Trust
Event could result from such action or failure to act. In addition, prior to
taking any action with respect to the Grantor Trust, or causing the Trust Fund
to take any action, that is not expressly permitted under the terms of this
Agreement, the Master Servicer and the Special Servicer shall consult with the
Trustee or its designee, in writing, with respect to whether such action could
cause an Adverse Grantor Trust Event to occur. Neither the Master Servicer nor
the Special Servicer shall have any liability hereunder for any action taken by
it in accordance with the written instructions of the Trustee. The Trustee may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund or the Trustee.
Notwithstanding any provision of this Agreement to the contrary, the Grantor
Trust Assets shall not be subject to any expenses, costs or other charges that
are attributable to the assets or activities of REMIC I, REMIC II or REMIC III.
(f) If any tax is imposed on the Grantor Trust, such tax, together with
all incidental costs and expenses (including, without limitation, penalties and
reasonable attorneys' fees) shall be charged to and paid by: (i) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its obligations under Article III or this Section 10.03; (ii)
the Master Servicer, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or this Section
10.03; (iii) the Trustee, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under Article IV, Article VIII or this
Section 10.03; or (iv) the portion of the Trust Fund constituting the Grantor
Trust in all other instances.
(g) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to the Grantor Trust on a calendar year and on an
accrual basis.
(h) The Trustee shall respond to reasonable written requests for
information in relation to income tax reporting by Certificateholders.
262
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders or the Xxxxxxxx
Fashion Center Companion Holders:
(i) to cure any ambiguity,
(ii) to correct, modify or supplement any provisions herein which
may be inconsistent with any other provisions herein or to correct any error,
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or desirable to maintain the qualification of
(A) REMIC I, REMIC II or REMIC III as a REMIC at all times that any Certificate
is outstanding or (B) any trust fund in which a Xxxxxxxx Fashion Center
Companion Loan is included as a REMIC (at all times that any related securities
are outstanding) or to avoid or minimize the risk of the imposition of any tax
on REMIC I, REMIC II or REMIC III pursuant to the Code that would be a claim
against the Trust Fund; provided, that the Trustee has received an Opinion of
Counsel to the effect that (A) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition of any
such tax and (B) such action will not adversely affect in any material respect
the interests of any Certificateholder or, if applicable, any Xxxxxxxx Fashion
Center Companion Holder,
(iv) to change the timing and/or nature of deposits into the
Certificate Account or the Distribution Account or to change the name in which
the Certificate Account is maintained; provided, that (A) the Delinquency
Advance Date or the Master Servicer Remittance Date shall in no event be later
than the related Distribution Date, (B) such change shall not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder or any Xxxxxxxx Fashion Center Companion Holder and (C)
such change shall not result in the downgrade, qualification or withdrawal of
the then-current rating assigned to any Class of Certificates or, if applicable,
any class of Xxxxxxxx Fashion Center Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect,
(v) to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests"; provided,
that such change shall not, as evidenced by an Opinion of Counsel, cause either
the Trust Fund or any of the Certificateholders (other than the transferor) to
be subject to a federal tax caused by a transfer to a Person that is not a
United States Person and a Permitted Transferee,
(vi) to modify, eliminate or add any provision to this Agreement
to provide for a book-entry registration system for the Certificates,
263
(vii) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement or to modify, eliminate or
add any provision to this Agreement to facilitate the servicing and
administration of the Oakbrook Center Mortgage Loan; provided, that any such
amendment shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder or any Xxxxxxxx
Fashion Center Companion Holder, or
(viii) to modify, eliminate or add to the provisions of Section
8.14 as necessary from time to time to comply with the Exchange Act, the rules
and regulations of the Commission, the Xxxxxxxx-Xxxxx Act of 2002 or any other
applicable law, rule or regulation.
(b) This Agreement may also be amended from time to time by the parties
hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to any Xxxxxxxx Fashion Center Companion Holder, without the consent
of such Xxxxxxxx Fashion Center Companion Holder,
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any such
case without the consent of the Holders of all Certificates of such Class then
outstanding, or
(iii) modify the definition of "Servicing Standard" without the
consent of the Holders of all Certificates then outstanding and the Xxxxxxxx
Fashion Center Companion Holders.
(c) Notwithstanding the foregoing, the Trustee will not be entitled to
consent to any amendment hereto without having first received an Opinion of
Counsel to the effect that (i) such amendment is permitted pursuant to the terms
of this Agreement and (ii) such amendment or the exercise of any power granted
to the Master Servicer, the Special Servicer, the Depositor, the Trustee or any
other specified person in accordance with such amendment will not result in the
imposition of a tax on REMIC I, REMIC II or REMIC III pursuant to the REMIC
Provisions or cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC
or cause any REMIC in which a Xxxxxxxx Fashion Center Companion Loan is included
to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each party hereto, each
Certificateholder and the Xxxxxxxx Fashion Center Companion Holders.
264
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer or the Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 11.01(a) or (c) shall be payable out of the
Certificate Account.
SECTION 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund on direction by
the Trustee, such direction to be given by the Trustee only upon the Trustee's
receipt of an Opinion of Counsel to be obtained by the party requesting such
recordation (the cost of which may be paid out of the Certificate Account) to
the effect that such recordation materially and beneficially affects the
interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
265
under any liability to any third party by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it under this
Section 11.03(c) or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the Holders of
Certificates unless such Holders have offered to the Trustee reasonable security
against the costs, expenses and liabilities which may be incurred therein or
hereby. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 11.03(c), each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04 GOVERNING LAW.
THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN SAID STATE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.05 Notices.
Any communications provided for or permitted hereunder shall be in writing
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given if personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed to have been
duly given only when received), to: (i) in the case of the Depositor, 000 Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Structured Finance Manager,
telecopy number: (000) 000-0000; (ii) in the case of the Master Servicer, 000
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Managing Director,
Commercial Servicing
266
Operations, telecopy number: (000) 000-0000 (with copies to General Counsel
(telecopy number: (000) 000-0000)); (iii) in the case of the Trustee, the
Xxxxxxxx Fashion Center Companion Paying Agent and the Fiscal Agent, the
Corporate Trust Office; (iv) in the case of the Special Servicer, 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, telecopy number (000) 000-0000,
Attention: CMBS Portfolio Manager (with a copy to General Counsel); (v) in the
case of the Rating Agencies, (A) Standard & Poor's Ratings Services, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage Surveillance
Manager, telecopy number: (000) 000-0000, (B) Xxxxx'x Investors Service, Inc.,
000 Xxxxxxxx Xxxxxx, Xxxxxxx Building Center, 4th-9th Floor, Newark, New Jersey
07102, Attention: CMBS Rating and Monitoring, telecopy number: (000) 000-0000;
(vi) in the case of the Underwriters, (A) Deutsche Bank Securities Inc., 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxx, telecopy number:
(000) 000-0000, (B) Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxxxxx, telecopy number: (000) 000-0000 and (C) Xxxxxx
Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxxx, telecopy number: (000) 000-0000; (vii) in the case of the initial
Majority Certificateholder of the Controlling Class, GMAC Institutional Advisors
LLC, 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, Attention:
Xxxxx Xxxx, telecopy number: (000) 000-0000, or as to each such Person such
other address as may hereafter be furnished by such Person to the parties hereto
in writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right, title
and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets comprising the Trust Fund,
including without limitation, the Mortgage Loans (including all Replacement
Mortgage Loans), all principal and interest received or receivable with respect
to the Mortgage Loans (other than principal and interest payments due and
payable prior to the Cut-off Date and Principal Prepayments received prior to
the Cut-off Date), all amounts held from time to time in the Certificate Account
and the Distribution Account and all reinvestment earnings on such amounts, and
all of the Depositor's right, title and interest in and to the
267
proceeds of any title, hazard or other Insurance Policies related to the
Mortgage Loans, and (ii) this Agreement shall constitute a security agreement
under applicable law. The Depositor shall file or cause to be filed, as a
precautionary filing, a Form UCC-1 substantially in the form attached as Exhibit
E hereto in all appropriate locations in the state of Delaware promptly
following the initial issuance of the Certificates, and the Master Servicer
shall prepare and file at each such office, and the Trustee shall execute,
continuation statements thereto, in each case within six months prior to the
fifth anniversary of the immediately preceding filing. The Depositor shall
cooperate in a reasonable manner with the Trustee and the Master Servicer in
preparing and filing such continuation statements. This Section 11.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the
applicable Uniform Commercial Code.
SECTION 11.08 No Partnership.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of the
Master Servicer and the Special Servicer shall be rendered as independent
contractors and not as agents for the Trust Fund or the Certificateholders.
SECTION 11.09 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and permitted assigns
and all such provisions shall inure to the benefit of the Certificateholders.
Each Xxxxxxxx Fashion Center Companion Holder and any designees thereof acting
on behalf of or exercising the rights of such Xxxxxxxx Fashion Center Companion
Holder shall be third-party beneficiaries to this Agreement with respect to
their rights as specifically provided for herein. The Xxxxxxxx Fashion Center
A-2 Trustee shall be a third-party beneficiary to this Agreement solely with
respect to reimbursement of Advances made by such Persons, with interest, as
provided in Section 3.05(e) hereof. No other person, including, without
limitation, any Mortgagor, shall be entitled to any benefit or equitable right,
remedy or claim under this Agreement.
SECTION 11.10 Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11 Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide notice
or a copy of the listed item to each Rating Agency with respect to each of the
following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation, termination or merger (with an entity
other than an Affiliate) of the Master Servicer, the Special Servicer or the
Trustee;
268
(iv) any change in the location of the Distribution Account;
(v) a copy of the notice given pursuant to Section 2.03(a) and
the repurchase of a Mortgage Loan by the related Mortgage Loan Seller pursuant
to Section 6 of the related Mortgage Loan Purchase Agreement or by GMACCM
pursuant to Section 4 of the related Supplemental Agreement; and
(vi) the final payment to any Class of Certificateholders.
(b) Each of the Master Servicer and the Special Servicer shall promptly
furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14.
(c) To the extent it is not already required to do so under Section
4.02 hereof, the Trustee shall promptly furnish to each Rating Agency copies of
each report prepared and/or delivered by it pursuant to Section 4.02 hereof.
(d) Each of the Master Servicer, the Special Servicer and the Trustee
shall provide or make available such additional information to each Rating
Agency upon request is in its possession or reasonably available to it.
SECTION 11.12 Liability of Xxxxxxxx Fashion Center B Note Holder.
Notwithstanding anything to the contrary contained herein, so long as the
Xxxxxxxx Fashion Center B Note Holder is not a Xxxxxxxx Fashion Center Borrower
Affiliate it shall be liable hereunder only to the extent of cash, property or
other value realized or derived from the Xxxxxxxx Fashion Center A/B
Intercreditor Agreement either (i) prior to its disbursement and receipt by such
Xxxxxxxx Fashion Center B Note Holder or (ii) after its receipt by such Xxxxxxxx
Fashion Center B Note Holder under the circumstances and to the extent provided
in the Section 7(b) of the related Xxxxxxxx Fashion Center A/B Intercreditor
Agreement entitled "Payment Procedure." Anything herein to the contrary
notwithstanding, so long as the Xxxxxxxx Fashion Center B Note Holder is not a
Xxxxxxxx Fashion Center Borrower Affiliate, it shall not be required to
reimburse the Trust or any other party or account for payment of any REMIC taxes
or Advances therefor or Advance Interest thereon or for deficits in other items
of disbursement or income resulting from the use of funds for payment of REMIC
taxes, nor shall any disbursement or payment otherwise distributable to any
Xxxxxxxx Fashion Center B Note Holder that is not a Xxxxxxxx Fashion Center
Borrower Affiliate be reduced to offset or make-up any such payment or deficit.
269
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC., Depositor
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Special Servicer
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
Trustee and Xxxxxxxx Fashion Center
Companion Paying Agent
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx Xxxxx
Title: Assistant Vice President
S-1 Pooling and Servicing Agreement
ABN AMRO BANK N.V., Fiscal Agent
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: First Vice President
S-2 Pooling and Servicing Agreement
Agreed to and acknowledged by TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, Chandler
Fashion Center B Note Holder
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Associate Director
S-3 Pooling and Servicing Agreement
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 29 day of May 2003, before me, a notary public in and for said
State, personally appeared Xxxxx Xxxxxxx known to me to be a Vice President of
GMAC COMMERCIAL MORTGAGE SECURITIES, INC., one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxx
---------------------------------------
Notary Public
[Notary Seal]
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 29 day of May 2003, before me, a notary public in and for said
State, personally appeared Xxxxx Xxxxxxx known to me to be a Senior Vice
President of GMAC COMMERCIAL MORTGAGE CORPORATION, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxx
---------------------------------------
Notary Public
[Notary Seal]
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On the 29 day of May 2003, before me, a notary public in and for said State,
personally appeared Xxx X. Xxxxx known to me to be a Asst. Vice President of
LASALLE BANK NATIONAL ASSOCIATION, a national chartered bank duly organized,
validly existing and in good standing under the laws of the United States of
America that executed the within instrument, and also known to me to be the
person who executed it on behalf of such nationally chartered bank, and
acknowledged to me that such nationally chartered bank executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx X'Xxxx
---------------------------------------
Xxxxx X'Xxxx, Notary Public
[Notary Seal]
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On the 29 day of May 2003, before me, a notary public in and for said State,
personally appeared Xxxxxxx X. Xxxx and Xxxxxxx Xxxx known to me to be a Vice
President and a First Vice President, respectively, of ABN AMRO BANK N.V., a
bank duly organized, validly existing and in good standing under the laws of the
Netherlands that executed the within instrument, and also known to me to be the
persons who executed it on behalf of such bank, and acknowledged to me that such
bank executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx X'Xxxx
---------------------------------------
Xxxxx X'Xxxx, Notary Public
[Notary Seal]
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the _____ day of May 2003, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,
a _______________________ duly organized, validly existing and in good standing
under the laws of the United States of America that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such _______________________, and acknowledged to me that such
_______________________ executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
EXHIBIT A-1
-----------
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of
3.337% per annum this Class A-1 Certificate as of
the Issue Date: $[__________]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: May 1, 2003 Class A-1 Certificates as of the
Issue Date: $214,780,000
Cut-off Date: With respect to any Aggregate unpaid principal balance
Mortgage Loan, the Due Date for such of the Mortgage Pool as of the
Mortgage Loan in May 2003 respective Cut-off Dates of the
Mortgage Loans, after deducting
payments of principal due on or
before such date, whether or not
received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 XC 1
GMAC Commercial Mortgage Corporation
Certificate No. A-1- [____] ISIN No. US361849XC18
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-1-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS
M, CLASS N-1, CLASS N-2, CLASS O, CLASS P AND CLASS Q CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN
UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class A-1 Certificate (obtained by dividing the
principal balance of this Class A-1 Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class A-1 Certificates (their "Class Principal Balance") as of the Issue Date)
in that certain beneficial ownership interest evidenced by all the Class A-1
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
A-1-2
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class A-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class A-1
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2003-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
A-1-3
The Class A-1 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-1
Certificates are exchangeable for new Class A-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class A-1 Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or Section 4975 of the Code
(each, a "Plan"), or (B) to any Person who is directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with "plan assets" of a Plan, unless such Plan qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of transfer or
exchange of Class A-1 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
A-1-4
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of: (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in the Trust Fund; (ii) as permitted,
but not required, by the Agreement, the purchase by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor, at a price
determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund if the aggregate Stated Principal Balance
of the Mortgage Pool at the time of purchase is less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof; or (iii) as permitted, but not required, by the Agreement, the exchange
by the Majority Certificateholder of the Controlling Class of all of the
Certificates (other than the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund on any Distribution Date
on which the aggregate Certificate Balance of the Class A, Class B, Class C,
Class D, Class E, Class F Certificates, Class G Certificates and Class H
Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the Percentage Interests of each Class of affected
Certificates. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association, as
Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to______________________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to_____________)
and all applicable statements and notices should be mailed to___________________
________________________________________________________________________________
This information is provided by___________________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
4.079% per annum Class A-2 Certificate as of the
Issue Date: $[________]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: May 1, 2003 Class A-2 Certificates as of the
Issue Date: $392,556,000
Cut-off Date: With respect to any Aggregate unpaid principal balance of
Mortgage Loan, the Due Date for such the Mortgage Pool as of the
Mortgage Loan in May 2003 respective Cut-off Dates of the
Mortgage Loans, after deducting
payments of principal due on or
before such date, whether or not
received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 XD 9
GMAC Commercial Mortgage Corporation
Certificate No. A-2- [___] ISIN No. US361849XD90
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-2-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS
M, CLASS N-1, CLASS N-2, , CLASS O, CLASS P AND CLASS Q CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN
UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class A-2 Certificate (obtained by dividing the
principal balance of this Class A-2 Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class A-2 Certificates (their "Class Principal Balance") as of the Issue Date)
in that certain beneficial ownership interest evidenced by all the Class A-2
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings
A-2-2
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement, as
amended from time to time, the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the case of any
conflict between the terms specified herein and in the Agreement, the terms of
the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class A-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class A-2
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2003-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
A-2-3
The Class A-2 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-2
Certificates are exchangeable for new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class A-2 Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or Section 4975 of the Code
(each, a "Plan"), or (B) to any Person who is directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with "plan assets" of a Plan, unless such Plan qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of transfer or
exchange of Class A-2 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
A-2-4
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of: (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in the Trust Fund; (ii) as permitted,
but not required, by the Agreement, the purchase by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor, at a price
determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund if the aggregate Stated Principal Balance
of the Mortgage Pool at the time of purchase is less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof; or (iii) as permitted, but not required, by the Agreement, the exchange
by the Majority Certificateholder of the Controlling Class of all of the
Certificates (other than the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund on any Distribution Date
on which the aggregate Certificate Balance of the Class A, Class B, Class C,
Class D, Class E, Class F Certificates, Class G Certificates and Class H
Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the Percentage Interests of each Class of affected
Certificates. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association, as
Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-2-5
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to______________________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to_____________)
and all applicable statements and notices should be mailed to___________________
________________________________________________________________________________
This information is provided by___________________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS B CERTIFICATE
CLASS B MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
4.192% per annum Class B Certificate as of the
Issue Date: $[_________]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: May 1, 2003 Class B Certificates as of the Issue
Date: $39,409,000
Cut-off Date: With respect to any Aggregate unpaid principal balance of
Mortgage Loan, the Due Date for such the Mortgage Pool as of the
Mortgage Loan in May 2003 respective Cut-off Dates of the
Mortgage Loans, after deducting
payments of principal due on or
before such date, whether or not
received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 XE 7
GMAC Commercial Mortgage Corporation
Certificate No. B- [____] ISIN No. US361849XE73
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-3-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1 AND CLASS X-2 CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED
IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A AND CLASS A-2 CERTIFICATES OF THE SAME SERIES. IN
ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL
BALANCE OF THE CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J,
CLASS K, CLASS L, CLASS M, CLASS N-1, CLASS N-2, , CLASS O, CLASS P AND CLASS Q
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class B Certificate (obtained by dividing the
principal balance of this Class B Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class B Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust
A-3-2
Fund created pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), among GMAC Commercial Mortgage Securities, Inc., as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V.,
as Fiscal Agent. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement, as amended from time to time, the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound. In the case of any conflict between the terms specified herein and in
the Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class B Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class B Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2003-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided
A-3-3
in the Agreement, withdrawals from the Certificate Account and the Distribution
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Class B Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class B
Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class B Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or Section 4975 of the Code
(each, a "Plan"), or (B) to any Person who is directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with "plan assets" of a Plan, unless such Plan qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of transfer or
exchange of Class B Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
B Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate
A-3-4
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of: (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in the Trust Fund; (ii) as permitted,
but not required, by the Agreement, the purchase by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor, at a price
determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund if the aggregate Stated Principal Balance
of the Mortgage Pool at the time of purchase is less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof; or (iii) as permitted, but not required, by the Agreement, the exchange
by the Majority Certificateholder of the Controlling Class of all of the
Certificates (other than the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund on any Distribution Date
on which the aggregate Certificate Balance of the Class A, Class B, Class C,
Class D, Class E, Class F Certificates, Class G Certificates and Class H
Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the Percentage Interests of each Class of affected
Certificates. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-3-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within-mentioned
Agreement.
Dated: May 29, 2003
LaSalle Bank National Association, as
Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-3-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to______________________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to_____________)
and all applicable statements and notices should be mailed to___________________
________________________________________________________________________________
This information is provided by___________________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS C CERTIFICATE
CLASS C MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
4.242% per annum Class C Certificate as of the
Issue Date: $[_________]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: May 1, 2003 Class C Certificates as of the Issue
Date: $11,822,000
Cut-off Date: With respect to any Aggregate unpaid principal balance of
Mortgage Loan, the Due Date for the Mortgage Pool as of the
such Mortgage Loan in May 2003 respective Cut-off Dates of the
Mortgage Loans, after deducting
payments of principal due on or
before such date, whether or not
received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 XF 4
GMAC Commercial Mortgage Corporation
Certificate No. C- [___] ISIN No. US361849XF49
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-4-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2 AND CLASS B CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2 AND CLASS B CERTIFICATES OF THE SAME SERIES. IN
ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL
BALANCE OF THE CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K,
CLASS L, CLASS M, CLASS N-1, CLASS N-2, , CLASS O, CLASS P AND CLASS Q
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class C Certificate (obtained by dividing the
principal balance of this Class C Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class C Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust
A-4-2
Fund created pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), among GMAC Commercial Mortgage Securities, Inc., as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V.,
as Fiscal Agent. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement, as amended from time to time, the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound. In the case of any conflict between the terms specified herein and in
the Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class C Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class C Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2003-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided
A-4-3
in the Agreement, withdrawals from the Certificate Account and the Distribution
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Class C Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class C
Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class C Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or Section 4975 of the Code
(each, a "Plan"), or (B) to any Person who is directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with "plan assets" of a Plan, unless such Plan qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of transfer or
exchange of Class C Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
C Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate
A-4-4
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of: (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in the Trust Fund; (ii) as permitted,
but not required, by the Agreement, the purchase by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor, at a price
determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund if the aggregate Stated Principal Balance
of the Mortgage Pool at the time of purchase is less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof; or (iii) as permitted, but not required, by the Agreement, the exchange
by the Majority Certificateholder of the Controlling Class of all of the
Certificates (other than the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund on any Distribution Date
on which the aggregate Certificate Balance of the Class A, Class B, Class C,
Class D, Class E, Class F Certificates, Class G Certificates and Class H
Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the Percentage Interests of each Class of affected
Certificates. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-4-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within-mentioned
Agreement.
Dated: May 29, 2003
LaSalle Bank National Association, as
Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-4-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to______________________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to_____________)
and all applicable statements and notices should be mailed to___________________
________________________________________________________________________________
This information is provided by___________________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS D CERTIFICATE
CLASS D MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
4.283% per annum Class D Certificate as of the
Issue Date: $[_________]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: May 1, 2003 Class D Certificates as of the Issue
Date: $22,332,000
Cut-off Date: With respect to any Aggregate unpaid principal balance of
Mortgage Loan, the Due Date for the Mortgage Pool as of the
such Mortgage Loan in May 2003 respective Cut-off Dates of the
Mortgage Loans, after deducting
payments of principal due on or
before such date, whether or not
received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 XG 2
GMAC Commercial Mortgage Corporation
Certificate No. D- [___] ISIN No. US361849XG22
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-5-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B AND CLASS C CERTIFICATES OF THE SAME SERIES, AS AND TO
THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B AND CLASS C CERTIFICATES OF THE SAME
SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K,
CLASS L, CLASS M, CLASS N-1, CLASS N-2, , CLASS O, CLASS P AND CLASS Q
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class D Certificate (obtained by dividing the
principal balance of this Class D Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class D Certificates (their "Class Principal Balance") as of the Issue Date) in
A-5-2
that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class D Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class D Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2003-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting
A-5-3
the Mortgage Loans, all as more specifically set forth herein and in the
Agreement. As provided in the Agreement, withdrawals from the Certificate
Account and the Distribution Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class D Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class D
Certificates are exchangeable for new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class D Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or Section 4975 of the Code
(each, a "Plan"), or (B) to any Person who is directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with "plan assets" of a Plan, unless such Plan qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of transfer or
exchange of Class D Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
D Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-5-4
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of: (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in the Trust Fund; (ii) as permitted,
but not required, by the Agreement, the purchase by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor, at a price
determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund if the aggregate Stated Principal Balance
of the Mortgage Pool at the time of purchase is less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof; or (iii) as permitted, but not required, by the Agreement, the exchange
by the Majority Certificateholder of the Controlling Class of all of the
Certificates (other than the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund on any Distribution Date
on which the aggregate Certificate Balance of the Class A, Class B, Class C,
Class D, Class E, Class F Certificates, Class G Certificates and Class H
Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the Percentage Interests of each Class of affected
Certificates. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the
A-5-5
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-5-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association, as
Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-5-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to______________________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to_________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by___________________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS E CERTIFICATE
CLASS E MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
4.342% per annum Class E Certificate as of the
Issue Date: $[_________]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: May 1, 2003 Class E Certificates as of the Issue
Date: $15,763,000
Cut-off Date: With respect to any Aggregate unpaid principal balance of
Mortgage Loan, the Due Date for the Mortgage Pool as of the
such Mortgage Loan in May 2003 respective Cut-off Dates of the
Mortgage Loans, after deducting
payments of principal due on or
before such date, whether or not
received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 XH 0
GMAC Commercial Mortgage Corporation
Certificate No. E- [___] ISIN No. US361849XH05
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-6-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C AND CLASS D CERTIFICATES OF THE SAME SERIES, AS
AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C AND CLASS D CERTIFICATES OF
THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCES OF THE CLASS F, CLASS G, CLASS H, CLASS J, CLASS
K, CLASS L, CLASS M, CLASS N-1, CLASS N-2, , CLASS O, CLASS P AND CLASS Q
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class E Certificate (obtained by dividing the
principal balance of this Class E Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class E Certificates (their "Class Principal Balance") as of the Issue Date) in
A-6-2
that certain beneficial ownership interest evidenced by all the Class E
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class E Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class E Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2003-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting
A-6-3
the Mortgage Loans, all as more specifically set forth herein and in the
Agreement. As provided in the Agreement, withdrawals from the Certificate
Account and the Distribution Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class E Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class E
Certificates are exchangeable for new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class E Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or Section 4975 of the Code
(each, a "Plan"), or (B) to any Person who is directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with "plan assets" of a Plan, unless such Plan qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of transfer or
exchange of Class E Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
E Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-6-4
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of: (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in the Trust Fund; (ii) as permitted,
but not required, by the Agreement, the purchase by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor, at a price
determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund if the aggregate Stated Principal Balance
of the Mortgage Pool at the time of purchase is less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof; or (iii) as permitted, but not required, by the Agreement, the exchange
by the Majority Certificateholder of the Controlling Class of all of the
Certificates (other than the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund on any Distribution Date
on which the aggregate Certificate Balance of the Class A, Class B, Class C,
Class D, Class E, Class F Certificates, Class G Certificates and Class H
Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the Percentage Interests of each Class of affected
Certificates. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the
A-6-5
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-6-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association, as
Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-6-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to______________________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to_____________)
and all applicable statements and notices should be mailed to___________________
________________________________________________________________________________
This information is provided by___________________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS X-1 CERTIFICATE
CLASS X-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Variable Certificate Notional Amount of this Class X-1
Certificate as of the Issue Date: $[__________]
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class X-1 Certificates
May 1, 2003 as of the Issue Date: $1,050,901,642
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage
the Due Date for such Mortgage Loan in May 2003 Loans as of their respective Cut-off Dates, after
deducting payments of principal due on or before such
date, whether or not received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XJ 6
GMAC Commercial Mortgage Corporation
Certificate No. X-1- [___] ISIN No. US361849XJ60
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-7-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class X-1 Certificate (obtained by
dividing the notional principal amount of this Class X-1 Certificate (its
"Certificate Notional Amount") as of the Issue Date by the aggregate notional
principal balance of all the Class X-1 Certificates (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the
A-7-2
Class X-1 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, LaSalle Bank National
Association, as Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class X-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class X-1
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) and such Certificateholder is the registered owner of all
the Class X-1 Certificates, or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class X-1 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class X-1 Certificates are exchangeable for new Class X-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
A-7-3
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class X-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class X-1 Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class X-1 Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class X-1 Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
X-1 Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class X-1 Certificates
may be resold, pledged or transferred only (a) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class X-1 Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class X-1 Certificate without
registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class X-1
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class X-1 Certificate without registration or qualification. Any Class X-1
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class X-1 Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class X-1 Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or Section 4975
of the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating
A-7-4
Agency or (2) such Plan is an "insurance company general account" (within the
meaning of PTE 95-60) and the conditions set forth in Sections I and III of PTE
95-60 have been satisfied as of the date of acquisition of such Certificate.
Each purchaser or transferee that is a Plan or is investing on behalf of or with
"plan assets" of a Plan will be deemed to have represented that the foregoing
conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class X-1 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class X-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and
A-7-5
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-7-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-1 Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-7-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to _________
____________________________________________________________
___________________________________ and all applicable statements and notices
should be mailed to _____________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or________________
_____________________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS X-2 CERTIFICATE
CLASS X-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Variable Certificate Notional Amount of this Class X-2
Certificate as of the Issue Date: $[__________]
Date of Pooling and Servicing Agreement: Notional Amount of all the Class X-2 Certificates as of
May 1, 2003 the Issue Date: $1,011,839,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage
Date for such Mortgage Loan in May 2003 Loans as of their respective Cut-off Dates, after
deducting payments of principal due on or before such
date, whether or not received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XK 3
GMAC Commercial Mortgage Corporation
Certificate No. X-2- [___] ISIN No. US361849XK34
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-8-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class X-2 Certificate (obtained by
dividing the notional principal amount of this Class X-2 Certificate (its
"Certificate Notional Amount") as of the Issue Date by the aggregate notional
principal balance of all the Class X-2 Certificates (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the
A-8-2
Class X-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, LaSalle Bank National
Association, as Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class X-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class X-2
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) and such Certificateholder is the registered owner of all
the Class X-2 Certificates, or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class X-2 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class X-2 Certificates are exchangeable for new Class X-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
A-8-3
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class X-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class X-2 Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class X-2 Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class X-2 Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
X-2 Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class X-2 Certificates
may be resold, pledged or transferred only (a) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class X-2 Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class X-2 Certificate without
registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class X-2
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class X-2 Certificate without registration or qualification. Any Class X-2
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class X-2 Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class X-2 Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or Section 4975
of the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating
A-8-4
Agency or (2) such Plan is an "insurance company general account" (within the
meaning of PTE 95-60) and the conditions set forth in Sections I and III of PTE
95-60 have been satisfied as of the date of acquisition of such Certificate.
Each purchaser or transferee that is a Plan or is investing on behalf of or with
"plan assets" of a Plan will be deemed to have represented that the foregoing
conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class X-2 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class X-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and
A-8-5
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-8-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-2 Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-8-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to _________
________________________________________________________________________________
_______________ and all applicable statements and notices should be mailed to __
___________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or________________
______________________________________________________________________, as its
agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS A-1A CERTIFICATE
CLASS A-1A MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: 3.830% Certificate Principal Balance of this Class A-1A
Certificate as of the Issue Date: $[__________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class A-1A
Certificates as of the Issue Date: $243,894,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in May 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payment of principal due on
or before such date, whether or not received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XL 1
GMAC Commercial Mortgage Corporation
Certificate No. A-1A-[___] ISIN No. US361849XL17
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-9-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-1A Certificate (obtained by
dividing the principal balance of this Class A-1A Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-1/A Certificates (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest evidenced by all the
Class A-1A Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, LaSalle Bank National
Association, as Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time,
A-9-2
the Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. In the case of any conflict between the terms
specified herein and in the Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class A-1A Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class A-1A
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
A-9-3
The Class A-1A Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class A-1A Certificates are exchangeable for new Class A-1A Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-1A Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class A-1A Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class A-1A Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class A-1A Certificate shall be deemed to have represented by
such purchase that it is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act, that it is aware
that the sale to it is being made in reliance on Rule 144A and that it is
acquiring the Class A-1A Certificates for its own account or for the account of
a qualified institutional buyer, and that it understands that such Class A-1A
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class A-1A Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class A-1A
Certificate without registration or qualification. None of the Depositor, the
Trustee or the Certificate Registrar is obligated to register or qualify the
Class A-1A Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class A-1A Certificate without registration or qualification.
Any Class A-1A Certificateholder desiring to effect such a transfer shall, and
by the acceptance of its Class A-1A Certificate agrees to, indemnify the
Depositor, the Trustee and the Certificate Registrar against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of any Class A-1A Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual
A-9-4
retirement accounts and annuities, Xxxxx plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, that is subject to ERISA or Section 4975 of the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing such Certificate
or interest therein on behalf of, as named fiduciary of, as trustee of, or with
"plan assets" of a Plan, unless such Plan qualifies as an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act and either (1)
at the time of such transfer, such Certificate continues to be rated in one of
the top four rating categories by at least one Rating Agency or (2) such Plan is
an "insurance company general account" (within the meaning of PTCE 95-60) and
the conditions set forth in Sections I and III of PTCE 95-60 have been satisfied
as of the date of acquisition of such Certificate. Each purchaser or transferee
that is a Plan or is investing on behalf of or with "plan assets" of a Plan will
be deemed to have represented that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class A-1A Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class A-1A Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
A-9-5
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-9-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-9-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to__________
________________________________________________________________________________
______________) and all applicable statements and notices should be mailed to __
___________________________________________________
This information is provided by
_________________________________________________________________________, the
assignee named above,
or_____________________________________________________________________________,
as its agent.
A-9-8
EXHIBIT A-10
------------
FORM OF CLASS F CERTIFICATE
CLASS F MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 4.718% per annum or the Certificate Principal Balance of this Class F
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $[_________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class F Certificates
as of the Issue Date: $11,823,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in May 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on
or before such date, whether or not received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XM 9
GMAC Commercial Mortgage Corporation
Certificate No. F-[__] ISIN No. US361849XM99
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-10-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES OF THE SAME
SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D AND CLASS E
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS G, CLASS H, CLASS J, CLASS
K, CLASS L, CLASS M, CLASS N-1, CLASS N-2, CLASS O, CLASS P AND
A-10-2
CLASS Q CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES
ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class F Certificate (obtained by dividing
the principal balance of this Class F Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class F Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class F Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class F Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the
A-10-3
address of the Holder that surrenders this Certificate as such address last
appeared in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class F Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class F Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class F Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class F Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class F Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
F Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class F Certificates may
be resold, pledged or transferred only (a) to a person reasonably
A-10-4
believed to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class F Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class F Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class F
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class F Certificate without registration or qualification. Any Class F
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class F Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class F Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class F Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class F Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
A-10-5
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-10-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-10-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to__________
________________________________________________________________________________
______________) and all applicable statements and notices should be mailed to __
___________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or________________
______________________________________________________________________, as its
agent.
A-10-8
EXHIBIT A-11
------------
FORM OF CLASS G CERTIFICATE
CLASS G MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 4.817% per annum or the Certificate Principal Balance of this Class G
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $[_________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class G Certificates
as of the Issue Date: $11,823,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2001 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XN 7
GMAC Commercial Mortgage Corporation
Certificate No. G-[___] ISIN No. US361849XN72
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-1-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F CERTIFICATES OF
THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N-1, CLASS N-2, CLASS O, CLASS P AND CLASS Q
A-1-2
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class G Certificate (obtained by dividing
the principal balance of this Class G Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class G Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class G Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class G Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the
A-1-3
address of the Holder that surrenders this Certificate as such address last
appeared in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class G Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class G Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class G Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class G Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
G Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class G Certificates may
be resold, pledged or transferred only (a) to a person reasonably
A-1-4
believed to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class G Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class G Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class G
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class G Certificate without registration or qualification. Any Class G
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class G Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class G Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class G Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class G Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
A-1-5
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-1-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-1-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
______________________ for the account of_______________________________________
_________________________________________________________
Distributions made by check (such check to be made payable to _________
________________________________________________________________________________
______________) and all applicable statements and notices should be mailed to
_____________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or________________
______________________________________________________________________, as its
agent.
A-1-8
EXHIBIT A-12
------------
FORM OF CLASS H CERTIFICATE
CLASS H MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.310% per annum or the Certificate Principal Balance of this Class H
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $[_________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class H Certificates
as of the Issue Date: $11,822,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in May 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XP2
GMAC Commercial Mortgage Corporation
Certificate No. H-[____] ISIN No. US361849XP21
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-12-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F
AND CLASS G CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON
WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS J, CLASS K,
CLASS L, CLASS M, CLASS N-1, CLASS N-2, CLASS O, CLASS P AND CLASS Q
A-12-2
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class H Certificate (obtained by dividing
the principal balance of this Class H Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class H Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class H
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class H Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class H Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the
A-12-3
address of the Holder that surrenders this Certificate as such address last
appeared in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class H Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class H Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class H Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class H Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
H Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class H Certificates may
be resold, pledged or transferred only (a) to a person reasonably
A-12-4
believed to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class H Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class H Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class H
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class H Certificate without registration or qualification. Any Class H
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class H Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class H Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class H Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class H Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
A-12-5
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-12-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-12-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to _________
________________________________________________________________________________
_________________) and all applicable statements and notices should be mailed to
_____________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or________________
______________________________________________________________________, as its
agent.
A-12-8
EXHIBIT A-13
------------
FORM OF CLASS J CERTIFICATE
CLASS J MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.000% per annum or the Certificate Principal Balance of this Class J
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $[_________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class J Certificates
as of the Issue Date: $22,332,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in May 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XQ 0
GMAC Commercial Mortgage Corporation
Certificate No. J-[____] ISIN No. US361849XQ04
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-13-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G AND CLASS H CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS K, CLASS
L, CLASS M, CLASS N-1, CLASS N-2, CLASS O, CLASS P AND CLASS Q
A-13-2
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class J Certificate (obtained by dividing
the principal balance of this Class J Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class J Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class J
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class J Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class J Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the
A-13-3
address of the Holder that surrenders this Certificate as such address last
appeared in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class J Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class J Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class J Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class J Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
J Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class J Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed to be
A-13-4
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class J Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class J Certificate without registration
or qualification. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class J Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class J Certificate
without registration or qualification. Any Class J Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class J Certificate
agrees to, indemnify the Depositor, the Trustee and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Any purchaser of a Class J Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class J Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class J Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class J Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-13-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-13-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-13-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-13-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to _________
________________________________________________________________________________
_________________) and all applicable statements and notices should be mailed to
_____________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or________________
______________________________________________________________________, as its
agent.
A-13-9
EXHIBIT A-14
------------
FORM OF CLASS K CERTIFICATE
CLASS K MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.000% per annum or the Certificate Principal Balance of this Class K
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $[_________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class K Certificates
as of the Issue Date: $10,509,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in May 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XR 8
GMAC Commercial Mortgage Corporation
Certificate No. K-[____] ISIN No. US361849XR86
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-14-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H
AND CLASS J CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN
THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H AND CLASS J CERTIFICATES OF THE SAME SERIES. IN ADDITION,
FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE
CLASS L, CLASS M, CLASS N-1, CLASS N-2, CLASS O, CLASS P AND CLASS Q
A-14-2
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class K Certificate (obtained by dividing
the principal balance of this Class K Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class K Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class K
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class K Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class K Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the
A-14-3
address of the Holder that surrenders this Certificate as such address last
appeared in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class K Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class K Certificates are exchangeable for new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class K Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class K Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class K Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class K Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
K Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class K Certificates may
be resold, pledged or transferred only (a) to a person reasonably
A-14-4
believed to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class K Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class K Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class K
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class K Certificate without registration or qualification. Any Class K
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class K Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class K Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class K Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class K Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class K Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-14-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-14-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-14-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-14-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to _________
________________________________________________________________________________
_________________) and all applicable statements and notices should be mailed to
_____________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or________________
______________________________________________________________________, as its
agent.
A-14-9
EXHIBIT A-15
------------
FORM OF CLASS L CERTIFICATE
CLASS L MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.000% per annum or the Certificate Principal Balance of this Class L
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $[_________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class L Certificates
as of the Issue Date: $7,882,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in May 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XS 6
GMAC Commercial Mortgage Corporation
Certificate No. L-[____] ISIN No. US361849XS69
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-15-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES. IN
ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL
BALANCES OF THE CLASS M, CLASS N-1, CLASS N-2, CLASS O, CLASS P AND CLASS Q
A-15-2
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class L Certificate (obtained by dividing
the principal balance of this Class L Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class L Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class L
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class L Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class L Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the
A-15-3
address of the Holder that surrenders this Certificate as such address last
appeared in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class L Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class L Certificates are exchangeable for new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class L Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class L Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class L Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class L Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
L Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class L Certificates may
be resold, pledged or transferred only (a) to a person reasonably
A-15-4
believed to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class L Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class L Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class L
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class L Certificate without registration or qualification. Any Class L
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class L Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class L Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class L Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class L Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class L Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-15-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-15-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-15-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-15-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to _________
________________________________________________________________________________
_________________) and all applicable statements and notices should be mailed to
_____________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or________________
______________________________________________________________________, as its
agent.
A-15-9
EXHIBIT A-16
------------
FORM OF CLASS M CERTIFICATE
CLASS M MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.000% per annum or the Certificate Principal Balance of this Class M
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $[_________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class M Certificates
as of the Issue Date: $5,254,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in May 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XT 4
GMAC Commercial Mortgage Corporation
Certificate No. M-[____] ISIN No. US361849XT43
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-16-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K AND CLASS L CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J, CLASS K AND CLASS L CERTIFICATES OF THE SAME SERIES.
IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE
A-16-2
PRINCIPAL BALANCES OF THE CLASS N-1, CLASS N-2, CLASS O, CLASS P AND CLASS Q
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class M Certificate (obtained by dividing
the principal balance of this Class M Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class M Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class M
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class M Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class M Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is
A-16-3
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class M Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class M Certificates are exchangeable for new Class M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class M Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class M Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class M Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
M Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such
A-16-4
Class M Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class M Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class M Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class M
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class M Certificate without registration or qualification. Any Class M
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class M Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class M Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class M Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class M Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class M Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-16-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-16-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-16-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-16-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to _________
________________________________________________________________________________
_________________) and all applicable statements and notices should be mailed to
_____________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or________________
______________________________________________________________________, as its
agent.
A-16-9
EXHIBIT A-17
------------
FORM OF CLASS N-1 CERTIFICATE
CLASS N-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.000% per annum or the Certificate Principal Balance of this Class N-1,
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $[_________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class N-1,
Certificates as of the Issue Date: $6,463,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in May 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XU 1
GMAC Commercial Mortgage Corporation
Certificate No. N-1-[____] ISIN No. US361849XU16
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-17-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K, CLASS L AND CLASS M CERTIFICATES OF THE SAME SERIES, AS AND TO
THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J, CLASS K, CLASS L AND CLASS M CERTIFICATES OF THE SAME
SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE
A-17-2
PRINCIPAL BALANCES OF THE CLASS N-2, CLASS O, CLASS P AND CLASS Q CERTIFICATES
OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS
AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class N-1 Certificate (obtained by
dividing the principal balance of this Class N-1 Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class N-1 Certificates (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
N-1 Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class N-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class N-1
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is
A-17-3
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class N-1 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class N-1 Certificates are exchangeable for new Class N-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class N-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class N-1 Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class N-1 Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class N-1 Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
N-1 Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such
A-17-4
Class N-1 Certificates may be resold, pledged or transferred only (a) to a
person reasonably believed to be a qualified institutional buyer that purchases
for its own account or for the account of a qualified institutional buyer to
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (b) pursuant to another exemption from registration
under the Securities Act. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class N-1 Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class N-1
Certificate without registration or qualification. None of the Depositor, the
Trustee or the Certificate Registrar is obligated to register or qualify the
Class N-1 Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class N-1 Certificate without registration or qualification. Any
Class N-1 Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class N-1 Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class N-1 Certificate or any interest
therein will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class N-1 Certificate that is held
as a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class N-1 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class N-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-17-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-17-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-17-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class N-1 Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-17-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to _________
________________________________________________________________________________
_________________) and all applicable statements and notices should be mailed to
_____________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or _______________
_______________________________________________________________________, as its
agent.
A-17-9
EXHIBIT A-18
------------
FORM OF CLASS N-2 CERTIFICATE
CLASS N-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.000% per annum or the Certificate Principal Balance of this Class N-2,
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $[_________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class N-2,
Certificates as of the Issue Date: $1,420,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in May 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XV 9
GMAC Commercial Mortgage Corporation
Certificate No. N-2-[____] ISIN No. US361849XV98
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-18-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N-1 CERTIFICATES OF THE SAME
SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N-1 CERTIFICATES
OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE
A-18-2
CERTIFICATE PRINCIPAL BALANCES OF THE CLASS O, CLASS P AND CLASS Q CERTIFICATES
OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS
AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class N-2 Certificate (obtained by
dividing the principal balance of this Class N-2 Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class N-2 Certificates (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
N-2 Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class N-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class N-2
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is
A-18-3
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class N-2 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class N-2 Certificates are exchangeable for new Class N-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class N-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class N-2 Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class N-2 Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class N-2 Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
N-2 Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such
A-18-4
Class N-2 Certificates may be resold, pledged or transferred only (a) to a
person reasonably believed to be a qualified institutional buyer that purchases
for its own account or for the account of a qualified institutional buyer to
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (b) pursuant to another exemption from registration
under the Securities Act. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class N-2 Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class N-2
Certificate without registration or qualification. None of the Depositor, the
Trustee or the Certificate Registrar is obligated to register or qualify the
Class N-2 Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class N-2 Certificate without registration or qualification. Any
Class N-2 Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class N-2 Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class N-2 Certificate or any interest
therein will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class N-2 Certificate that is held
as a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class N-2 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class N-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-18-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-18-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-18-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class N-2 Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-18-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to _________
________________________________________________________________________________
_________________) and all applicable statements and notices should be mailed to
_____________________________________________________
This information is provided by _______________________________________
__________________________________, the
assignee named above, or________________________________________________________
______________________________, as its agent.
A-18-9
EXHIBIT A-19
------------
FORM OF CLASS O CERTIFICATE
CLASS O MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.000% per annum or the Certificate Principal Balance of this Class O
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $[_________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class O Certificates
as of the Issue Date: $2,627,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in May 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XW 7
GMAC Commercial Mortgage Corporation
Certificate No. O-[____] ISIN No. US361849XW71
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-19-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K, CLASS L, CLASS M, CLASS N-1 AND CLASS N-2 CERTIFICATES OF THE
SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N-1 AND CLASS N-2
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE
AGGREGATE
A-19-2
CERTIFICATE PRINCIPAL BALANCES OF THE CLASS P AND CLASS Q CERTIFICATES OF THE
SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND
CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class O Certificate (obtained by dividing
the principal balance of this Class O Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class O Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class O
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class O Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class O Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is
A-19-3
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class O Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class O Certificates are exchangeable for new Class O Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class O Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class O Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class O Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class O Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
O Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such
A-19-4
Class O Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class O Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class O Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class O
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class O Certificate without registration or qualification. Any Class O
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class O Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class O Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class O Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class O Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class O Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-19-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-19-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-19-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-19-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to _________
________________________________________________________________________________
_________________) and all applicable statements and notices should be mailed to
_____________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or _______________
_______________________________________________________________________, as its
agent.
A-19-9
EXHIBIT A-20
------------
FORM OF CLASS P CERTIFICATE
CLASS P MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.000% per annum or the Certificate Principal Balance of this Class P
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $[_________]
Date of Pooling and Servicing Agreement: May 1, 2003 Class Principal Balance of all the Class P Certificates
as of the Issue Date: $5,255,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in May 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 XX5
GMAC Commercial Mortgage Corporation
Certificate No. P-[____] ISIN No. US361849XX54
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-20-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K, CLASS L, CLASS M, CLASS N-1, CLASS N-2 AND CLASS O
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N-1, CLASS N-2 AND
CLASS O CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON
WHICH THE
A-20-2
AGGREGATE THE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS Q CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND
CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class P Certificate (obtained by dividing
the principal balance of this Class P Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class P Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class P
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class P Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class P Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is
A-20-3
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class P Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class P Certificates are exchangeable for new Class P Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class P Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class P Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class P Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class P Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
P Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such
A-20-4
Class P Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class P Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class P Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class P
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class P Certificate without registration or qualification. Any Class P
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class P Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class P Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class P Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class P Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class P Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-20-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-20-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-20-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-20-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________ for the account of______________________________________
__________________________________________________________
Distributions made by check (such check to be made payable to _________
________________________________________________________________________________
_________________) and all applicable statements and notices should be mailed to
_____________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or _______________
_______________________________________________________________________, as its
agent.
A-20-9
EXHIBIT A-21
FORM OF CLASS Q CERTIFICATE
CLASS Q MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.000% per Certificate Principal Balance of this
annum or the Weighted Average Net Class Q Certificate as of the Issue
Mortgage Rate Date: $[_________]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
May 1, 2003 Class Q Certificates as of the Issue
Date: $13,135,642
Cut-off Date: With respect to any Aggregate unpaid principal balance of
Mortgage Loan, the Due Date for such the Mortgage Pool as of the respective
Mortgage Loan in May 2003 Cut-off Dates of the Mortgage Loans,
after deducting payments of principal
due on or before such date, whether or
not received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 XY 3
GMAC Commercial Mortgage Corporation
Certificate No. Q-[____] ISIN No. US361849XY38
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-21-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K, CLASS L, CLASS M, CLASS N-1, CLASS N-2, CLASS O AND CLASS P
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N-1, CLASS N-2,
CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES. IN ADDITION, THE
CERTIFICATE
A-21-2
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION
WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class Q Certificate (obtained by dividing
the principal balance of this Class Q Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class Q Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class Q
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the case of any conflict between
the terms specified herein and in the Agreement, the terms of the Agreement
shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class Q Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class Q Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
A-21-3
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class Q Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class Q Certificates are exchangeable for new Class Q Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class Q Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class Q Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class Q Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class Q Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
Q Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class Q Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account
A-21-4
of a qualified institutional buyer to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A, or (b) pursuant to
another exemption from registration under the Securities Act. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register or
qualify the Class Q Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of any Class Q Certificate without registration or
qualification. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class Q Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class Q Certificate
without registration or qualification. Any Class Q Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class Q Certificate
agrees to, indemnify the Depositor, the Trustee and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Any purchaser of a Class Q Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class Q Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class Q Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class Q Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-21-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-21-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-21-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:______________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class Q Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association, as Certificate
Registrar
By:______________________________________________
Authorized Officer
A-21-8
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including postal
zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
__________________________________ for the account of___________________________
_____________________________________________________________________
Distributions made by check (such check to be made payable to _________
_____________) and all applicable statements and notices should be mailed to
________________________________________________________________________________
This information is provided by _______________________________________
__________________________________, the assignee named above, or________________
______________________________________________________________________, as its
agent.
A-21-9
EXHIBIT A-22
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
May 1, 2003 Certificate in the related Class:
[______]
Cut-off Date: With respect to any Aggregate unpaid principal balance of
Mortgage Loan, the Due Date for such the Mortgage Pool as of the respective
Mortgage Loan in May 2003 Cut-off Dates of the Mortgage Loans,
after deducting payments of principal
due on or before such date, whether or
not received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 XZ 0
GMAC Commercial Mortgage Corporation
Certificate No. R-I-[_____] ISIN No. US361849XZ03
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
A-3, CLASS X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N-1, CLASS N-2, CLASS O,
CLASS P AND CLASS Q CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
A-22-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that Wachovia Bank, N.A. is the registered
owner of the Percentage Interest evidenced by this Class R-I Certificate (as
specified above) in that certain beneficial ownership interest evidenced by all
the Class R-I Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, LaSalle Bank National
Association, as Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
A-22-2
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class R-I Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class R-I
Certificate will be made by the Trustee by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-I Certificates are
exchangeable for new Class R-I Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-I Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-I Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a
A-22-3
certificate from such Certificateholder's prospective transferee substantially
in the form attached as Exhibit B-2 to the Agreement. None of the Depositor, the
Trustee or the Certificate Registrar is obligated to register or qualify the
Class R-I Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class R-I Certificate without registration or qualification. Any
Class R-I Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-I Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of a Class R-I Certificate or any interest therein
shall be made to (A) any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing
the Class R-I Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and a United States Person and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit C-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its
A-22-4
Ownership Interest unless it provides to the Trustee a certificate substantially
in the form attached as Exhibit C-2 to the Agreement stating that, among other
things, it has no actual knowledge that such prospective Transferee is not a
Permitted Transferee or is not a United States Person. Each Person holding or
acquiring an Ownership Interest in this Certificate, by purchasing such
Ownership Interest herein, agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-I Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-I Certificate
to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, and (v) any
electing large partnership under Section 775 of the Code and/or any other Person
so designated by the Trustee based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Class R-I Certificate by such Person may cause the
Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R-I Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a
A-22-5
court within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust.
No service charge will be imposed for any registration of
transfer or exchange of Class R-I Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class R-I Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of
the Holders of any of the Certificates.
A-22-6
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-22-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:___________________________________
Authorized Officer
A-22-8
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal
zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
---------------------------------------
Signature by or on behalf of Assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to___________________________________
_______________________ for the account of
..
Distributions made by check (such check to be made payable to
_______________) and all applicable statements and notices should be mailed to.
This information is provided by _________________________________, the
assignee named above, or _______________________________________________________
_____________________________________as its agent.
A-22-9
EXHIBIT A-23
FORM OF CLASS R-II CERTIFICATE
CLASS R-II MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
May 1, 2003 Certificate in the related Class:
[_________]
Cut-off Date: With respect to any Aggregate unpaid principal balance of
Mortgage Loan, the Due Date for such the Mortgage Pool as of the respective
Mortgage Loan in May 2003 Cut-off Dates of the Mortgage Loans,
after deducting payments of principal
due on or before such date, whether or
not received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 YA 4
GMAC Commercial Mortgage Corporation
Certificate No. R-II-[____] ISIN No. US361849YA43
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
A-3, CLASS X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N-1, CLASS N-2, CLASS O,
CLASS P AND CLASS Q CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
A-23-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that Wachovia Bank, N.A. is the registered
owner of the Percentage Interest evidenced by this Class R-II Certificate (as
specified above) in that certain beneficial ownership interest evidenced by all
the Class R-II Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, LaSalle Bank National
Association, as Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
A-23-2
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class R-II Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class R-II
Certificate will be made by the Trustee by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-II Certificates are
exchangeable for new Class R-II Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-II Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-II Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a
A-23-3
certificate from such Certificateholder's prospective transferee substantially
in the form attached as Exhibit B-2 to the Agreement. None of the Depositor, the
Trustee or the Certificate Registrar is obligated to register or qualify the
Class R-II Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class R-II Certificate without registration or qualification.
Any Class R-II Certificateholder desiring to effect such a transfer shall, and
by the acceptance of its Class R-II Certificate agrees to, indemnify the
Depositor, the Trustee and the Certificate Registrar against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of a Class R-II Certificate or any interest
therein shall be made to (A) any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or Section 4975
of the Code (each, a "Plan") or (B) any Person who is directly or indirectly
purchasing the Class R-II Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and a United States Person and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit C-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its
A-23-4
Ownership Interest unless it provides to the Trustee a certificate substantially
in the form attached as Exhibit C-2 to the Agreement stating that, among other
things, it has no actual knowledge that such prospective Transferee is not a
Permitted Transferee or is not a United States Person. Each Person holding or
acquiring an Ownership Interest in this Certificate, by purchasing such
Ownership Interest herein, agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-II Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-II
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, and (v) any
electing large partnership under Section 775 of the Code and/or any other Person
so designated by the Trustee based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Class R-II Certificate by such Person may cause
the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R-II Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a
A-23-5
court within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust.
No service charge will be imposed for any registration of
transfer or exchange of Class R-II Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class R-II Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of
the Holders of any of the Certificates.
A-23-6
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-23-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:___________________________________
Authorized Officer
A-23-8
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal
zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
---------------------------------------
Signature by or on behalf of Assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to___________________________________
_______________________ for the account of.
Distributions made by check (such check to be made payable to
_______________) and all applicable statements and notices should be mailed to.
This information is provided by _________________________________, the
assignee named above, or _______________________________________________________
_____________________________________as its agent.
A-23-9
EXHIBIT A-24
FORM OF CLASS R-III CERTIFICATE
CLASS R-III MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
May 1, 2003 Certificate in the related Class:
[_________]
Cut-off Date: With respect to any Aggregate unpaid principal balance of
Mortgage Loan, the Due Date for such the Mortgage Pool as of the respective
Mortgage Loan in May 2003 Cut-off Dates of the Mortgage Loans,
after deducting payments of principal
due on or before such date, whether or
not received: $1,050,901,642
Issue Date: May 29, 2003
First Distribution Date: June 10, 2003 Trustee: LaSalle Bank National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 YB 2
GMAC Commercial Mortgage Corporation
Certificate No. R-III-[____] ISIN No. US361849YB26
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-1A, CLASS A-2, CLASS
A-3, CLASS X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N-1, CLASS N-2, CLASS O,
CLASS P AND CLASS Q CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
A-24-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that Wachovia Bank, N.A. is the registered
owner of the Percentage Interest evidenced by this Class R-III Certificate (as
specified above) in that certain beneficial ownership interest evidenced by all
the Class R-III Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, LaSalle Bank National
Association, as Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
A-24-2
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class R-III Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class R-III
Certificate will be made by the Trustee by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-III Certificates are
exchangeable for new Class R-III Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-III Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-III Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If such a transfer of any Class
R-III Certificate (other than a transfer thereof by the Depositor or any
Affiliate of the Depositor) is to be made without registration under the
Securities Act, then the Trustee shall require, in order to assure compliance
with such laws, receipt by it and the Depositor of a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit B-1
A-24-3
to the Agreement and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as Exhibit B-2 to the Agreement.
None of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class R-III Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class R-III Certificate without
registration or qualification. Any Class R-III Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class R-III
Certificate agrees to, indemnify the Depositor, the Trustee and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No transfer of a Class R-III Certificate or any interest
therein shall be made to (A) any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or Section 4975
of the Code (each, a "Plan") or (B) any Person who is directly or indirectly
purchasing the Class R-III Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and a United States Person and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit C-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its
A-24-4
Ownership Interest unless it provides to the Trustee a certificate substantially
in the form attached as Exhibit C-2 to the Agreement stating that, among other
things, it has no actual knowledge that such prospective Transferee is not a
Permitted Transferee or is not a United States Person. Each Person holding or
acquiring an Ownership Interest in this Certificate, by purchasing such
Ownership Interest herein, agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-III Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-III
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, and (v) any
electing large partnership under Section 775 of the Code and/or any other Person
so designated by the Trustee based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Class R-III Certificate by such Person may cause
the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R-III Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a
A-24-5
court within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust.
No service charge will be imposed for any registration of
transfer or exchange of Class R-III Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class R-III Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Percentage Interests of each
Class of affected Certificates. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of
the Holders of any of the Certificates.
A-24-6
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-24-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
Dated: May 29, 2003
LaSalle Bank National Association,
as Certificate Registrar
By:___________________________________
Authorized Officer
A-24-8
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal
zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
---------------------------------------
Signature by or on behalf of Assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to___________________________________
_______________________ for the account of.
Distributions made by check (such check to be made payable to
_______________) and all applicable statements and notices should be mailed to.
This information is provided by _________________________________, the
assignee named above, or _______________________________________________________
_____________________________________as its agent.
A-24-9
EXHIBIT B-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services Group
GMAC Mortgage Pass-Through Certificates
Series 2003-C1
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2003-C1, [Class X-1] [Class X-2] [Class
A-1A] [Class F] [Class G] [Class H] [Class J] [Class K] [Class L]
[Class M] [Class N-1] [Class N-2] [Class O] [Class P] [Class Q]
[Class R-I] [Class R-II] [Class R-III], [having an initial
principal balance/initial notional amount as of May 29, 2003 of
$____________] [evidencing a ______% Percentage Interest in such
Class].
Dear Sirs:
This letter is delivered to you in connection with the transfer by ________
(the "Transferor") to _____________ (the "Transferee") of the captioned
Certificates (the "Certificates"), pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of May 1,
2003, among GMAC Commercial Mortgage Securities, Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V. as Fiscal
Agent. All terms used herein and not otherwise defined shall have the respective
meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Certificates with the full
right to transfer the Certificates free from any and all claims and encumbrances
whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with any person in any manner, (d) made any general
solicitation with respect to the Certificates, any interest in the Certificates
or any other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to the Certificates, any
interest in the Certificates or any other similar security, which (in the case
of any of the acts described in clauses (a) through (e) hereof) would constitute
a distribution under the Securities Act of 1933 (the "Securities Act"), or would
render the disposition of the Certificates a violation of Section 5
B-1-1
of the Securities Act or any state securities laws, or would require
registration or qualification of the Certificates pursuant to the Securities Act
or any state securities laws.
3. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is a "qualified institutional
buyer" (as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act) purchasing for its own account or for the account of other qualified
institutional buyers, and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Certificates.
4. The Transferor or a person acting on its behalf has taken reasonable
steps to ensure that the Transferee is aware that the Transferor is relying on
the exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A.
5. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement, and
(d) any credit enhancement mechanism associated with the Certificates, that the
Transferee has requested.
Very truly yours,
Print Name of Transferor
_______________________________________
By:____________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF TRANSFEREE CERTIFICATE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services Group
GMAC Mortgage Pass-Through Certificates
Series 2003-C1
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2003-C1, [Class X-1] [Class X-2] [Class
A-1A] [Class F] [Class G] [Class H] [Class J] [Class K] [Class L]
[Class M] [Class N-1] [Class N-2] [Class O] [Class P] [Class Q]
[Class R-I] [Class R-II] [Class R-III], [having an initial
principal balance/initial notional amount as of May 29, 2003 of
$____________] [evidencing a _______% Percentage Interest in such
Class].
Dear Sirs:
This letter is delivered to you in connection with the transfer by ________
(the "Transferor") to _____________ (the "Transferee") of the captioned
Certificates (the "Certificates"), pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of May 1,
2003 among GMAC Commercial Mortgage Securities, Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V. as Fiscal
Agent. All terms used herein and not otherwise defined shall have the respective
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933 (the
"Securities Act") and has completed one of the forms of certification to that
effect attached hereto as Annex 1 and Annex 2. The Transferee is aware that the
sale to it is being made in reliance on Rule 144A. The Transferee is acquiring
the Certificates for its own account or for the account of a qualified
institutional buyer, and understands that such Certificates may be resold,
pledged or transferred only (a) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding (a)
the Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement, and
(d) any credit enhancement mechanism associated with the Certificates, that it
has requested.
B-2-1
3. If the Transferee proposes that the Certificates be registered in the
name of a nominee, such nominee has completed the Nominee Acknowledgment below.
4. The Transferee hereby certifies to the Trustee, the Depositor and the
Master Servicer that such transfer is permissible under applicable law, either
(a) such Transferee is not an "employee benefit plan" (within the meaning of
Section 3(3) of ERISA) that is subject to ERISA, a "plan" (within the meaning of
Section 4975 of the Code) that is subject to Section 4975 of the Code, or any
entity deemed to hold "plan assets" of any such plan (within the meaning of
United States Department of Labor ("DOL") Regulations Section 2510.3-101, or (b)
in the case of a Certificate that is not a Residual Certificate, such transfer
will not constitute or result in any non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, will not subject the
Depositor, the Trustee or the Master Servicer to any obligation in addition to
those undertaken in the Pooling and Servicing Agreement, and the following
conditions are met: (i) with respect to the Class X-1, Class X-2, Class A-1A,
Class F, Class G and/or Class H Certificates, the prospective transferee
qualifies as an accredited investor as defined in Rule 501(a) of Regulation D of
the Securities Act and (x) at the time of such transfer, such Certificates
continue to be rated in one of the top four rating categories by at least one
Rating Agency or (y) the source of funds used to purchase the Certificates is an
"insurance company general account" (as such term is defined in DOL Prohibited
Transaction Class Exemption ("PTCE") 95-60) and the conditions set forth in
Sections I and III of PTCE 95-60 are satisfied with respect to the Transferee's
purchase and holding of the Certificates, as of the date of acquisition of such
Certificate; or (ii) with respect to the Class J, Class K, Class L, Class M,
Class N, Class O, Class P and/or Class Q Certificates, (1) the prospective
transferee qualifies as an accredited investor as defined in Rule 501(a) of
Regulation D of the Securities Act, (2) the source of funds used to purchase the
Certificates is an "insurance company general account" (as such term is defined
in PTCE 95-60) and (3) the conditions set forth in Sections I and III of PTCE
95-60 are satisfied with respect to the Transferee's purchase and holding of the
Certificates, as of the date of acquisition of such Certificates.
Very truly yours,
Print Name of Transferor
_______________________________________
By:____________________________________
Name:
Title:
B-2-2
NOMINEE ACKNOWLEDGMENT
The undersigned hereby acknowledges and agrees that as to the Certificate
being registered in its name, the sole beneficial owner thereof is and shall be
___________________, the Transferee identified above, for whom the undersigned
is acting as nominee.
Very truly yours,
Print Name of Transferor
_______________________________________
By:____________________________________
Name:
Title:
X-0-0
XXXXX 0 XX XXXXXXX X-0
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to ____________ (the
"Transferor") and _____________, as Certificate Registrar, with respect to the
mortgage pass-through certificate (the "Certificate") described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933 ("Rule 144A"), because (i)
the Transferee owned and/or invested on a discretionary basis $_________________
in securities(1) (other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the category marked below.
Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or any organization described in Section 501(c)(3)
of the Internal Revenue Code of 1986.
Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District of
Columbia, the business of which is substantially confined to banking and is
supervised by the State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual financial statements,
a copy of which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a U.S. bank, and
not more than 18 months preceding such date of sale for a foreign bank or
equivalent institution.
Savings and Loan. The Transferee (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions, or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not more than 16
months preceding
------------------------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionay basis at least $10,000,000
in securities.
B-2-4
the date of sale of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of sale for a
foreign savings and loan association or equivalent institution.
Broker-dealer. The Transferee is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
Insurance Company. The Transferee is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
State or Local Plan. The Transferee is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
ERISA Plan. The Transferee is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940.
Other. (Please supply a brief description of the entity and a cross
reference to the paragraph and subparagraph under subsection (a)(1) of Rule 144A
pursuant to which it qualifies. Note that registered investment companies should
complete Annex 2 rather than this Annex 1).
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities that are
part of an unsold allotment to or subscription by the Transferee, if the
Transferee is a dealer, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a majority
owned, consolidated subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act of 1934.
B-2-5
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Transferee may be in reliance on Rule 144A.
Will the Transferee be purchasing the Certificates only for the
Transferee's own account?
Yes [ ] No [ ]
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Certificate will
constitute a reaffirmation of this certification as of the date of such
purchase. In addition, if the Transferee is a bank or savings and loan as
provided above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
Print Name of Transferee
____________________________________
By:_________________________________
Name:
Title:
Date:
X-0-0
XXXXX 0 XX XXXXXXX X-0
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to ________ (the "Transferor")
and ____________________, as Certificate Registrar, with respect to the mortgage
pass-through certificate (the "Certificate") described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Certificates (the "Transferee") or, if the Transferee is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because the Transferee is part of a Family
of Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
The Transferee owned and/or invested on a discretionary basis $__________
in securities (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
The Transferee is part of a Family of Investment Companies which owned in
the aggregate $____________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv)
B-2-7
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, or owned by the Transferee's Family of
Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Will the Transferee be purchasing the Certificates only for the
Transferee's own account?
Yes [ ] No [ ]
6. ________ If the answer to the foregoing question is "no," then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. ________ The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Certificates will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Transferee or Adviser
___________________________________________
By:________________________________________
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Transferee
Date: ____________________________________________
B-2-8
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
State of )
) ss
County of )
______________________, being first duly sworn, deposes and says that:
1. He/She is the _____________ of ______________ (the prospective
transferee (the "Transferee") of GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2003-C1, [Class R-I] [Class R-II]
[Class R-III], evidencing a _____% Percentage Interest in such Class (the
"Residual Certificates"), a __________duly organized and validly existing under
the laws of _____________, on behalf of which he/she makes this affidavit. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement pursuant to
which the Residual Certificates were issued (the "Pooling and Servicing
Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account. A "Permitted Transferee" is any
Person other than a "disqualified organization" or a possession of the United
States. (For this purpose, a "disqualified organization" means the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, an electing large partnership under Section 775 of the Code, any
rural electric or telephone cooperative, or any organization (other than certain
farmers' cooperatives) that is generally exempt from federal income tax unless
such organization is subject to the tax on unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor (or, with respect to transfers to electing large
partnerships, on such partnership) or, if such transfer is through an agent
(which Person includes a broker, nominee or middleman) for a non-Permitted
Transferee, on the agent; (iii) that the Person otherwise liable for the tax
shall be relieved of liability for the tax if the transferee furnishes to such
Person (other than transfers with respect to electing large partnerships) an
affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury Regulation Section 1.860E-1(c) and that
the transferor of a "noneconomic residual interest" will
C-1-1
remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer is to enable the
transferor to impede the assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Certificates if at any time during the taxable year of the
pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Certificate will only be owned, directly
or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is __________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (ii)(A) of Section 5.02(d)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a Person other than the Transferee and clause (ii)(B) of Section 5.02(d) which
authorizes the Trustee to negotiate a mandatory sale of the Residual
Certificates, in either case, in the event that the Transferee holds such
Residual Certificates in violation of Section 5.02(d)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of
the Residual Certificates is or will be to impede the assessment or collection
of any tax; in making this representation, the Transferee warrants that the
Transferee is familiar with Treasury Regulation Section 1.860E-1(c) and recent
amendments thereto, effective as of July 19, 2002.
10. The Transferee hereby represents to and for the benefit of the
Transferor that the Transferee intends and reasonably expects to have the
ability to pay any taxes associated with holding the Residual Certificates as
they become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Residual Certificates. Any financial
statements or other financial information provided by the transferee at the
request of the Transferor in connection with the transfer of the Residual
Certificates to permit the Transferor to assess the financial capability of the
Transferor to pay any such taxes is true and correct in all material respects.
11. The Transferee will, in connection with any transfer that it makes of
the Residual Certificates, deliver to the Certificate Registrar a representation
letter substantially in the form of
C-1-2
Exhibit C-2 to the Pooling and Servicing Agreement. The Transferee hereby agrees
that it will not make any transfer of any Residual Certificate unless (i) the
transfer is to an entity which is a domestic C corporation (other than an exempt
corporation, a regulated investment company, a real estate investment trust, a
REMIC, or a cooperative organization to which part I of Subchapter T of the Code
applies) for federal income tax purposes, and (ii) the transfer is in compliance
with the conditions set forth in paragraph 3 of Exhibit C-2 of the Pooling and
Servicing Agreement.
12. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof (except, in the
case of a partnership, to the extent provided in Treasury regulations), an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust for which a court within the United States is able to exercise primary
supervision over its administration and for which one or more United States
Persons have the authority to control all substantial decisions of the trust.
13. The Transferee is not acquiring the Residual Certificates with "plan
assets" of any plan subject to Title I of ERISA or Section 4975 of the Code.
14. [The Transferee hereby represents to and for the benefit of the
Transferor that (i) at the time of the transfer, and at the close of each of the
Transferee's two fiscal years preceding the year of transfer, the Transferee's
gross assets for financial reporting purposes exceed $100 million and its net
assets for such purposes exceed $10 million (disregarding, for purposes of
determining gross or net assets, the obligation of any person related to the
Transferee within the meaning of Treasury Regulation section 1.860E-1(c)(5) or
any other asset if a principal purpose for holding or acquiring that asset is to
permit the Transferee to satisfy this minimum gross asset or net asset
requirement), (ii) the Transferee is a domestic C corporation for United States
federal income tax purposes that is not an exempt corporation, a regulated
investment company, a real estate investment trust, a REMIC, or a cooperative
organization to which part I of subchapter T of the Code applies, (iii) there
are no facts or circumstances on or before the date of transfer (or anticipated
transfer) which would reasonably indicate that the taxes associated with the
Residual Certificates will not be paid, and (iv) any transfer of its interest
will be to a transferee that satisfies the requirements of this paragraph
14.](1)
15. The Transferee hereby agrees that it will not cause income from the
Class R Certificates to be attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of the
Transferee or another United States taxpayer.
------------------------
(1) Bracketed text may be used if the Transferee is relying on the "non-
formula safe harbor".
C-1-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its _____________________________________ and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this ______ day of ______,
_____________.
Very truly yours,
Print Name of Transferee
________________________________________________
By:_____________________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
___________________________
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me to be
the same person who executed the foregoing instrument and to be the of the
Transferee, and acknowledged to me that he/she executed the same as his/her free
act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this _________ day of ____________________,
________.
_________________________________________
NOTARY PUBLIC
COUNTRY OF ______________________________
STATE OF ________________________________
My Commission expires the day ____ of
_____________, _______.
C-1-4
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS
OF REMIC RESIDUAL CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services Group
GMAC Mortgage Pass-Through Certificates
Series 2003-C1
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series
2003-C1 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
___________ (the "Transferor") to _____________ (the "Transferee") of [Class
R-I] [Class R-II] [Class R-III] Certificates evidencing a _____% Percentage
Interest in such Class (the "Residual Certificates"). The Certificates,
including the Residual Certificates, were issued pursuant to the Pooling and
Servicing Agreement, dated as of May 1, 2003 (the "Pooling and Servicing
Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V. as Fiscal
Agent. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Certificates by the Transferor to the Transferee is or will be to impede the
assessment or collection of any tax; in making this representation, the
Transferor warrants that the Transferor is familiar with Treasury Regulation
Section 1.860E-1(c) and recent amendments thereto, effective as of July 19,
2002.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor at the time of this transfer has conducted a reasonable
investigation of the financial condition of the Transferee as contemplated by
Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
C-2-1
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future, and either (A) has determined that the present
value of the anticipated tax liabilities associated with the holding of the
Residual Certificate does not exceed the sum of (1) the present value of any
consideration given to the Transferee to acquire the Certificate, (2) the
present value of the expected future distributions on the Certificate, and (3)
the present value of the anticipated tax savings associated with holding the
Certificate as the REMIC generates losses (having made such determination by (I)
assuming that the Transferee pays tax at a rate equal to the highest rate of tax
specified in Section 11(b)(1) of the Internal Revenue Code ("Code") unless an
alternative rate is permitted to be used under the Treasury Regulation Section
1.860E-1(c)(8)(i), and (II) utilizing a discount rate for present valuations
equal to the Federal short-term rate prescribed by Section 1274(d) of the Code
for the month of the transfer and the compounding period used by the Transferee,
or (B) based on an adequate review of the relevant facts and circumstances,(2)
neither knows nor should know that the Transferee would be unwilling or unable
to pay any taxes due on its share of the taxable income of the REMIC.
------------------------
(2) If reliance is upon the "non-formula safe harbor" such review would include
all of the following: (i) at the time of the transfer, and at the close of each
of the Transferee's two fiscal years preceding the year of transfer, the
Transferee's gross assets for financial reporting purposes exceed $100 million
and its net assets for such purposes exceed $10 million (disregarding, for
purposes of determining gross or net assets, the obligation of any person
related to the Transferee within the meaning of Treasury Regulation section
1.860E-1(c)(5) or any other asset if a principal purposes for holding or
acquiring that asset is to permit the Transferee to satisfy this minimum gross
asset or net asset requirement), (ii) the Transferee is a domestic C corporation
for United States federal income tax purposes that is not for such purposes an
exempt corporation, a regulated investment company, a real estate investment
trust, a REMIC, or a cooperative organization to which part I of subchapter T of
the Code applies, (iii) there are no facts or circumstances on or before the
date of transfer (or anticipated) which would reasonably indicate that the taxes
associated with the Residual Certificates will not be paid, (iv) the Transferee
will not cause income from the Residual Certificate to be attributable to a
foreign permanent establishment or fixed base (within the meaing of an
applicable income tax treaty) of the Transferee or another United States
taxpayer, and (v) a reasonable person would not conclude based on Treasury
Regulation section 1.860E-1(c)(5)(iii) and the facts and circumstances known to
the transferor on or before the date of the transfer, that the taxes associated
with the Residual Certificate will not be paid. In addition, such "safe harbor"
also requires that the Transferor not know or have reason to know that the
Transferee will not honor the restrictions on subsequent transfers of any
Residual Interest described in paragraphs 11, 12 and 14 of the Transferee's
Transfer Affidavit and Agreement.
C-2-2
4. The Transferor understands that the transfer of the Residual
Certificates may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes associated
therewith) unless it complies with a current "safe harbor" under Treasury
Regulation 1.860E-1(c)(4) with respect to such transfer.
Very truly yours,
Print Name of Transferor
________________________________________________
By:_____________________________________________
Name:
Title:
C-2-3
EXHIBIT D
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by
you for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
Borrower Name(s):
Reason for Document Request: (indicate one)
[ ] Mortgage Loan Prepaid in Full
[ ] Mortgage Loan Repurchased or Sold
[ ] Other (specify) ______________________
___________________________________________
___________________________________________
"We hereby certify that all amounts received or to be received in
connection with such payments which are required to be deposited have been or
will be so deposited as provided in the Pooling and Servicing Agreement."
[GMAC COMMERCIAL MORTGAGE CORPORATION]
Authorized Signature
******************************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
D-1
Enclosed Documents:________ [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other:
Name
Title
Date
D-2
EXHIBIT E
FORMS OF UCC-1 FINANCING STATEMENTS
SCHEDULE 1 TO UCC-1 FINANCING STATEMENT
All right (including the power to convey title thereto), title and interest of
the Debtor as more particularly described on Exhibit A attached hereto:
EXHIBIT A OF SCHEDULE 1 TO UCC-1 FINANCING STATEMENT
All right (including the power to convey title thereto), title and interest
of the Debtor in and to the following property, including any security interest
therein for the benefit of the Debtor, in and to the Trust Fund created pursuant
to the Pooling and Servicing Agreement, dated as of May 1, 2003, among the
Debtor, as Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer
and Special Servicer, the Secured Party, as Trustee* and Xxxxxxxx Fashion Center
Companion Paying Agent, and ABN AMRO Bank N.V., as Fiscal Agent, with respect to
Mortgage Pass-Through Certificates, Series 2003-C1 (the "Pooling and Servicing
Agreement (Series 2003-C1)), including:
(1) the Mortgage Loans (including all Replacement Mortgage Loans) listed
on the Mortgage Loan Schedule attached hereto;
(2) all principal and interest received or receivable with respect to the
Mortgage Loans and the Replacement Mortgage Loans (other than principal and
interest payments due and payable prior to the Cut-off Date and Principal
Prepayments received prior to the Cut-off Date);
(3) all amounts held from time to time in the Certificate Account and the
Distribution Account and all reinvestment earnings on such amounts, the Excess
Liquidation Proceeds Reserve Account, the Interest Reserve Account, the REO
Account, the Xxxxxxxx Fashion Center Custodial Account and the Xxxxxxxx Fashion
Center Companion Distribution Account;
(4) all of the Debtor's right, title and interest in and to the proceeds
of any title, hazard or other Insurance Policies related to the Mortgage Loans;
(5) any and all general intangibles (as defined in the Uniform Commercial
Code) consisting of, arising from or relating to any of the foregoing; and
(6) any and all income, payments, proceeds and products of any of the
foregoing.
Capitalized terms used herein, but not defined, shall have the respective
meanings assigned to such terms in the Pooling and Servicing Agreement (Series
2003-C1).
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY
THE POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN,
WITH RESPECT TO THE MORTGAGE LOANS (INCLUDING ALL REPLACEMENT MORTGAGE LOANS),
THE MORTGAGE NOTES, THE RELATED MORTGAGES AND THE RELATED MORTGAGE FILES, AND
THIS
E-1
FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT OCCURRED. THE
REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE UNIFORM
COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION, OR THAT A FILING
IS NECESSARY TO PERFECT THE SECURITY INTEREST OF THE SECURED PARTY*, WITH
RESPECT TO THE MORTGAGE LOANS, IN ANY MORTGAGE NOTE, MORTGAGE OR DOCUMENT IN A
MORTGAGE FILE. WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY IN THE
EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
*Not in its individual capacity, but solely as Trustee for the benefit of
the Certificateholders and Xxxxxxxx Fashion Center Companion Paying Agent
pursuant to the Pooling and Servicing Agreement (Series 2003-C1).
E-2
EXHIBIT F
METHODOLOGY TO NORMALIZE NET OPERATING INCOME AND DEBT
SERVICE COVERAGE
GMAC Commercial Mortgage Corporation ("GMACCM") applies the methodology
presented below to arrive at a servicer adjusted or "Normalized" Net Operating
Income ("NOI"). The items described below highlight some of the major categories
requiring adjustment. There may, however, be others, and GMACCM will use its
market knowledge and discretion in making and sufficiently footnoting the
necessary adjustments.
GMACCM chooses to use the actual management fee stated in the financial
statement.
Where they are clearly identifiable, GMACCM will remove any capital expense from
any above the line categories (such as extraordinary repairs and maintenance)
and put them below the line in the capital expense comment section.
Replacement reserves, tenant improvements and leasing commission reserves will
be treated as above the line expenses. A determination will be made whether
there have been credits for the disbursements from a reserve and that expenses
are not overstated due to exclusion of credits.
Property taxes should be the annual amount due, excluding any delinquent taxes
or credits from prior years which would cause the number to be higher or lower.
The amount for property taxes will be adjusted if the period under analysis is
less than one year.
GMACCM will exclude non-recurring, extraordinary income. For example, a tax
refund, lease buyout or income received for a period other than the year in
question should be adjusted. If past due rent for a prior year was paid and
recorded in the current year, GMACCM would back it out and footnote it
accordingly. Care will be used when reflecting percentage/overage rents to
ensure that it relates to the appropriate period and that the numbers are
supported by tenant sales information.
GMACCM will remove any items not pertaining to the operation of the property
such as, fees for closing the loan restructure, a distribution to owners or a
charitable contribution.
When necessary, income and expenses will be analyzed by looking at variances by
category. Unusual income and expense items will be researched. If there are
significant variances, inquiries to the borrower will be made. Appropriate
adjustments will be made and footnotes provided to clearly explain the
situation.
The debt service should be an actual amount the borrower paid per the servicing
records for the period associated with the operating statement. If GMACCM does
not have a full year of payments, it will use the principal and interest
constant in the case of a fixed rate loan and, in the case of an adjustable rate
loan, will estimate a full year amount from the payment history information
available.
F-1
EXHIBIT G
FORM OF DISTRIBUTION DATE STATEMENT
G-1
EXHIBIT H-1
FORM OF INVESTOR CERTIFICATION
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Asset Backed Securities Trust Services Group,
GMAC Mortgage Pass-Through Certificates Series 2003-C1
In accordance with Section 4.02 of the Pooling and Servicing Agreement,
dated as of May 1, 2003 (the "Agreement"), by and among GMAC Commercial Mortgage
Securities, Inc. as Depositor, GMAC Commercial Mortgage Corporation as Master
Servicer and Special Servicer, LaSalle Bank National Association, as Trustee
(the "Trustee") and ABN AMRO Bank N.V., as Fiscal Agent (the "Fiscal Agent"),
with respect to the GMAC Commercial Mortgage Securities, Inc. Mortgage
Pass-Through Certificates, Series 2003-C1 (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the
Class ___ Certificates .
2. The undersigned is requesting access pursuant to the Agreement to
certain information (the "Information") on the [Trustee's website] [Master's
website] [Servicer's/Special Servicer's website] and/or is requesting the
information identified on the schedule attached hereto (also, the "Information")
pursuant to the provisions of the Agreement.
3. In consideration of the [Trustee's] [Master Servicer's] [Special
Servicer's] disclosure to the undersigned of the Information, or the access
thereto, the undersigned will keep the Information confidential (except from
such outside persons as are assisting it in making an evaluation in connection
with purchasing the related Certificates, from its accountants and attorneys,
and otherwise from such governmental or banking authorities or agencies to which
the undersigned is subject), and such Information will not, without the prior
written consent of the [Trustee] [Master Servicer] [Special Servicer], be
otherwise disclosed by the undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively, the "Representatives") in
any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act of
1933, as amended (the
H-1-1
"Securities Act"), or the Securities Exchange Act of 1934, as amended, or would
require registration of any Certificate not previously registered pursuant to
Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement
by itself or any of its Representatives and shall indemnify the Depositor, the
Trustee, the Master Servicer, the Special Servicer and the Trust Fund for any
loss, liability or expense incurred thereby with respect to any such breach by
the undersigned or any of its Representatives.
6. Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized signatory, as of the day and year written above.
___________________________________________
Beneficial Owner or Prospective Purchaser
By:________________________________________
Name: _____________________________________
Title:_____________________________________
Company:___________________________________
Phone:_____________________________________
cc: GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
H-1-2
SCHEDULE I TO EXHIBIT H-1
SCHEDULE TO
FORM OF INVESTOR CERTIFICATION
H-1-A
EXHIBIT H-2
FORM OF CONFIDENTIALITY AGREEMENT
[Date]
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: GMAC Commercial Mortgage Securities, Inc.,
Commercial Mortgage Pass-Through Certificates Series 2003-C1
Re: Information regarding Attention: GMAC Commercial Mortgage
Securities, Inc., Commercial Mortgage Pass-Through Certificates
Series 2003-C1
Ladies and Gentlemen:
In connection with the GMAC Commercial Mortgage Securities, Inc.,
Commercial Mortgage Pass-Through Certificates Series 2003-C1 (the
"Certificates"), we acknowledge that we will be furnished by GMAC Commercial
Mortgage Corporation as Master Servicer and/or as Special Servicer (and may have
been previously furnished) with certain information (the "Information"). For the
purposes of this letter agreement (this "Agreement"), "Representative" of a
Person refers to such Person's directors, officers, employees, and agents; and
"Person" refers to any individual, group or entity.
In connection with and in consideration of our being provided with
Information, we hereby acknowledge and agree that we are requesting and will use
the Information solely for purposes of making investment decisions with respect
to the above-referenced Certificates and will not disclose such Information to
any other Person or entity unless required to do so by law; provided such
Information may be disclosed to the auditors and regulators of the undersigned
or to any person or entity that is contemplating the purchase of any Certificate
held by the undersigned or of an interest therein, but only if such person or
entity confirms in writing such contemplation of a prospective ownership
interest and agrees in writing to keep such Information confidential.
The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor, the
Trustee, the Master Servicer, the Special Servicer and the Trust Fund for any
loss, liability or expense incurred thereby with respect to any such breach by
the undersigned or any of its Representatives.
This Agreement shall not apply to any of the Information which: (i) is or
becomes generally available and known to the public other than as a result of a
disclosure directly or indirectly by us or any of our Representatives; (ii)
becomes lawfully available to us on a non-confidential basis from a source other
than you or one of your Representatives, which source is not bound by a
contractual or other obligation of confidentiality to any Person; or (iii) was
lawfully known to us on a non-confidential basis prior to its disclosure to us
by you.
H-2-1
Capitalized terms used but not defined herein shall have the meaning
assigned thereto in that certain Pooling and Servicing Agreement, dated as of
May 1, 2003, by and among GMAC Commercial Mortgage Securities, Inc. as
Depositor, GMAC Commercial Mortgage Corporation as Master Servicer and Special
Servicer, LaSalle Bank National Association, as Trustee (the "Trustee") and ABN
AMRO Bank N.V., as Fiscal Agent (the "Fiscal Agent").
This Agreement, when signed by us, will constitute our agreement with
respect to the subject matter contained herein.
Very truly yours,
[NAME OF ENTITY]
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Company:____________________________________
Phone:______________________________________
cc: GMAC Commercial Mortgage Securities, Inc.
Trustee
H-2-2
EXHIBIT I
FORM OF NOTICE AND CERTIFICATION REGARDING
DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: GMAC Commercial Mortgage Corporation, in its capacity as Master
Servicer (the "Master Servicer") under the Pooling and Servicing
Agreement, dated as of May 1, 2003 (the "Pooling and Servicing
Agreement"), among the GMAC Commercial Mortgage Securities, Inc., as
Depositor, Servicer, GMAC Commercial Mortgage Corporation, as Master
Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent.
Date: _____________________, 20__.
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates Series 2003-C1
Mortgage Loan (the "Mortgage Loan") identified by loan number ________
on the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties identified
on the Mortgage Loan Schedule by the following names:
__________________
__________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we hereby:
(1) Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked
below:
_____ a full defeasance of the payments scheduled to be due in respect
of the entire principal balance of the Mortgage Loan; or
_____ a partial defeasance of the payments scheduled to be due in
respect of a portion of the principal balance of the Mortgage
Loan that represents ____% of the entire principal balance of
the Mortgage Loan and, under the Mortgage, has an allocated loan
amount of $__________ or ____% of the entire principal balance.
I-1
(2) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Schedule I hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
a. The Mortgage Loan documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in all material
respects in completing the defeasance.
b. The defeasance was consummated on ____________, 20__.
c. The defeasance collateral consists of securities that (i) constitute
"government securities" as defined in Section 2(a)(16) of the Investment Company
Act of 1940, as amended (15 U.S.C. 80a-1), (ii) are listed as "Qualified
Investments for `AAA' Financings" under Paragraphs 1, 2 or 3 of "Cash Flow
Approach" in Standard & Poor's Public Finance Criteria 2000, as amended to the
date of the defeasance, (iii) are rated "AAA" by Standard & Poor's, (iv) if they
include a principal obligation, the principal due at maturity cannot vary or
change, and (v) are not subject to prepayment, call or early redemption. Such
securities have the characteristics set forth below.
CUSIP RATE MAT PAY DATES ISSUED
d. The Master Servicer received an opinion of counsel (from counsel
approved by Master Servicer in accordance with the Servicing Standard) that the
defeasance will not result in an adverse REMIC Event.
e. The Master Servicer determined that the defeasance collateral will
be owned by an entity (the "Defeasance Obligor") as to which one of the
statements checked below is true:
_____ the related Mortgagor was a Single-Purpose Entity (as defined in
Standard & Poor's Structured Finance Ratings Real Estate Finance
Criteria, as amended to the date of the defeasance (the "S&P
Criteria")) as of the date of the defeasance, and after the
defeasance owns no assets other than the defeasance collateral
and real property securing Mortgage Loans included in the pool;
_____ the related Mortgagor designated a Single-Purpose Entity (as
defined in the S&P Criteria) to own the defeasance collateral;
or
_____ the Master Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the benefit of the
Trust to own the defeasance collateral.
f. The Master Servicer received a broker or similar confirmation of the
credit, or the accountant's letter described below contained statements that it
reviewed a
I-2
broker or similar confirmation of the credit, of the defeasance collateral to an
Eligible Account (as defined in the S&P Criteria) in the name of the Defeasance
Obligor, which account is maintained as a securities account by the Trustee
acting as a securities intermediary.
g. As securities intermediary, Trustee is obligated to make the
scheduled payments on the Mortgage Loan from the proceeds of the defeasance
collateral directly to the Master Servicer's collection account in the amounts
and on the dates specified in the Mortgage Loan Documents or, in a partial
defeasance, the portion of such scheduled payments attributed to the allocated
loan amount for the real property defeased, increased by any defeasance premium
specified in the Mortgage Loan Documents (the "Scheduled Payments").
h. The Master Servicer received from the Mortgagor written confirmation
from a firm of independent certified public accountants, who were approved by
Master Servicer in accordance with the Servicing Standard, stating that (i)
revenues from principal and interest payments made on the defeasance collateral
(without taking into account any earnings on reinvestment of such revenues) will
be sufficient to timely pay each of the Scheduled Payments after the defeasance
including the payment in full of the Mortgage Loan (or the allocated portion
thereof in connection with a partial defeasance) on its Maturity Date (or, in
the case of an ARD Loan, on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral will be applied to make
Scheduled Payments within four (4) months after the date of receipt, and (iii)
interest income from the defeasance collateral to the Defeasance Obligor in any
calendar or fiscal year will not exceed such Defeasance Obligor's interest
expense for the Mortgage Loan (or the allocated portion thereof in a partial
defeasance) for such year.
i. The Master Servicer received opinions from counsel, who were
approved by Master Servicer in accordance with the Servicing Standard, that (i)
the agreements executed by the Mortgagor and/or the Defeasance Obligor in
connection with the defeasance are enforceable against them in accordance with
their terms, and (ii) the Trustee will have a perfected, first priority security
interest in the defeasance collateral described above.
j. The agreements executed in connection with the defeasance (i) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the S&P Criteria), (ii) permit release of surplus
defeasance collateral and earnings on reinvestment to the Defeasance Obligor or
the Mortgagor only after the Mortgage Loan has been paid in full, if any such
release is permitted, (iii) prohibit any subordinate liens against the
defeasance collateral, and (iv) provide for payment from sources other than the
defeasance collateral or other assets of the Defeasance Obligor of all fees and
expenses of the securities intermediary for administering the defeasance and the
securities account and all fees and expenses of maintaining the existence of the
Defeasance Obligor.
k. The entire principal balance of the Mortgage Loan as of the date of
defeasance was $________ [$5,000,000 or less or less than one percent of pool
balance, whichever is less] which is less than 1% of the aggregate Certificate
Principal Balance of the Certificates as of the date of the most recent
Distribution Date Statement received by us (the "Current Report").
I-3
l. The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully and
partially defeased Mortgage Loans to $___________, which is ____% of the
aggregate Certificate Principal Balance of the Certificates as of the date of
the Current Report.
(3) Certify that, in addition to the foregoing, Master Servicer has
imposed such additional conditions to the defeasance, subject to the limitations
imposed by the Mortgage Loan documents, as are consistent with the Servicing
Standard.
(4) Certify that Schedule II hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance described above and that originals or copies of
such agreements, instruments and opinions have been transmitted to the Trustee
for placement in the related Mortgage File or, to the extent not required to be
part of the related Mortgage File, are in the possession of the Master Servicer
as part of the Master Servicer's Mortgage File.
(5) Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing Standard set
forth in, and the other applicable terms and conditions of, the Pooling and
Servicing Agreement.
(6) Certify that the individual under whose hand the Master Servicer has
caused this Notice and Certification to be executed did constitute a Servicing
Officer as of the date of the defeasance described above.
(7) Agree to provide copies of all items listed in Schedule II to you upon
request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:_______________________________________
Name:
Title:
I-4
SCHEDULE I TO EXHIBIT I
EXCEPTIONS
I-5
SCHEDULE II TO EXHIBIT I
MATERIAL AGREEMENTS, INSTRUMENTS, ORGANIZATIONAL DOCUMENTS
AND OPINIONS OF COUNSEL AND ACCOUNTANTS
I-6
EXHIBIT J
FORM OF INSURANCE SUMMARY REPORT
------------------------------------------------------------------------------------------------------------------------------------
MORTGAGE INSURANCE COMPLIANT
LOAN CURRENT LOAN WITH MORTGAGE ADEQUATE
NUMBER MORTGAGE LOAN PROPERTY BALANCE ($) TERM OF INSURANCE DOCUMENTS- EXCLUDING TERRORISM
BORROWER TERRORISM COVERAGE COVERAGE (Y/N)
(Y/N)
------------------------------------------------------------------------------------------------------------------------------------
1234567
(Sample
Entry) 12/31/01-12/31/02
------------------------------------------------------------------------------------------------------------------------------------
1234568
(Sample
Entry) 12/31/01-12/31/02
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) If so, identify specific coverage affected (i.e. Casualty, Liability, Business Interruption, etc.)
------------------------------------------------------------------------------------------------------------------------------------
(2) Please indicate either N/A if not applicable or the dollar amount of the coverage.
------------------------------------------------------------------------------------------------------------------------------------
(3) If the mortgage loan documents contains language for "such other insurance as may be reasonably required..." and
there is a distinction between Liability and Casualty Coverage, please identify which coverage offers such latitude.
------------------------------------------------------------------------------------------------------------------------------------
J-1
EXHIBIT K
FORM OF FIRST ANNIVERSARY RESERVE REPORT
LOAN NUMBER PROPERTY NAME DEFERRED OTHER INITIAL COMMENTS
MAINTENANCE BALANCE
K-1
EXHIBIT L-1
CLOSING MORTGAGE FILE REVIEW CERTIFICATION
CUSTODIAN INITIAL CERTIFICATION
MAY 29, 2003
Re: Pooling and Servicing Agreement, dated as of May 1, 2003 among GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., As Depositor, GMAC COMMERCIAL
MORTGAGE CORPORATION, as Master Servicer, GMAC COMMERCIAL MORTGAGE
CORPORATION, as Special Servicer, LASALLE BANK NATIONAL ASSOCIATION as
Trustee and ABN AMRO BANK, N.V., as Fiscal Agent.
Ladies and Gentlemen:
In accordance with Section 2.01(b) of the above-captioned Pooling and
Servicing Agreement, subject to further review of the contents thereof, the
undersigned, as Custodian, hereby certifies that (except as noted on the
attachment hereto the "Loan Exception Report") it has received the
documents referred to in Section 2.01 of the Pooling and Servicing
Agreement with respect to each Mortgage Loan listed in the related Mortgage
Loan Schedule and such documents appear to bear original signatures or
copies of original signatures if the original documents have not yet been
delivered.
The Trustee has made no independent examination of any such documents
beyond the review specifically required in the above-referenced Pooling and
Servicing Agreement. Capitalized words and phrases used herein shall have
the respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement. This Certificate is subject in all respects to the
terms of said Pooling and Servicing Agreement.
LaSalle Bank as Custodian
-----------------------------------
By:
Title:
X-0-0
XXXXXXX X-0
POST-CLOSING MORTGAGE
FILE REVIEW CERTIFICATION
FORM OF FINAL CERTIFICATION OF TRUSTEE
[Date]
GMAC Commercial Mortgage Securities, Inc. German American Capital Corporation
000 Xxxxxx Xxxx 00 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
[Controlling Class Certificateholders] Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
GMAC Commercial Mortgage Corporation Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Re: Pooling and Servicing Agreement, dated as of May 1, 2003
("Pooling and Servicing Agreement") relating to GMAC Commercial
Mortgage Securities Inc., Mortgage Pass-Through Certificates,
Series 2003-C1
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in the exception
report annexed hereto as not being covered hereby), that: (i) all documents
specified in clauses (1) through (5), (9), (11) and (12) (in the case of clause
(11), without regard to whether such UCC financing statements were in the
possession of the Mortgage Loan Seller (or its agent)) of the definition of
"Mortgage File" are in its possession or the related Mortgage Loan Seller has
otherwise satisfied the delivery requirements in accordance with Section 2.01(b)
and (ii) all such documents have been reviewed by it or by a Custodian on its
behalf and (A) appear regular on their face, (B) appear to have been executed
(where appropriate) and (C) purport to relate to such Mortgage Loan.
The Trustee makes no representations as to: (i) the validity, legality,
sufficiency, enforceability or genuineness of any such documents contained in
each Mortgage File or any of the Mortgage Loans identified in the Mortgage Loan
Schedule, or (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan.
Capitalized words and phrases used herein and not otherwise defined herein
shall have the respective meanings assigned to them in the Pooling and Servicing
Agreement. This Certificate is subject in all respects to the terms of said
Pooling and Servicing Agreement.
[SIGNATURE PAGE FOLLOWS]
L-2-1
LASALLE BANK NATIONAL ASSOCIATION
as Trustee
By:___________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
-----------
FORM OF CERTIFICATION TO
BE PROVIDED WITH FORM 10-K
--------------------------
GMAC Commercial Mortgage Securities, Inc.
Commercial Mortgage Pass-Through Certificates
Series 2003-C1
I, [identify the certifying individual], certify that:
I have reviewed this annual report on Form 10-K, and all reports on Form 8-K
containing distribution date reports filed in respect of periods included in the
year covered by this annual report, of the trust (the "Trust") created pursuant
to the Pooling and Servicing Agreement, dated as of May 1, 2003 (the "Pooling
and Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc., as
depositor, GMAC Commercial Mortgage Corporation, as master servicer (the "Master
Servicer") and as special servicer (the "Special Servicer"), LaSalle Bank
National Association, as trustee (the "Trustee") and ABN AMRO Bank N.V., as
fiscal agent (the "Fiscal Agent");
Based on my knowledge, the information in these reports, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last day of the period
covered by this annual report;
Based on my knowledge, the servicing information required to be provided to the
trustee by the Master Servicer and the Special Servicer under the Pooling and
Servicing Agreement is included in these reports;
I am responsible for reviewing the activities performed by the Master Servicer
and the Special Servicer under the Pooling and Servicing Agreement and based
upon the review required under the Pooling and Servicing Agreement, and except
as disclosed in the report, the Master Servicer and the Special Servicer have
fulfilled their obligations under the Pooling and Servicing Agreement; and
I have disclosed to the Trust's certified public accountants all significant
deficiencies relating to the Master Servicer's or Special Servicer's compliance
with the minimum servicing standards in accordance with a review conducted in
compliance with the Uniform Single Attestation Program for Mortgage Bankers or
similar standard as set forth in the Pooling and Servicing Agreement.
Date:_____________________
-------------------------
[Signature]
[Title]
M-1
EXHIBIT M-2
-----------
FORM OF CERTIFICATION TO
BE PROVIDED TO DEPOSITOR
------------------------
GMAC Commercial Mortgage Securities, Inc.
Commercial Mortgage Pass-Through Certificates
Series 2003-C1
I, [identify the certifying individual], a ______________ of LaSalle Bank
National Association, certify to GMAC Commercial Mortgage Securities, Inc. and
its officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
I have reviewed the annual report on Form 10-K for the fiscal year [______], and
all reports on Form 8-K containing distribution date reports filed in respect of
periods included in the year covered by that annual report, of the trust created
pursuant to the Pooling and Servicing Agreement, dated as of May 1, 2003 (the
"Pooling and Servicing Agreement"), among GMAC Commercial Mortgage Securities,
Inc., as depositor, GMAC Commercial Mortgage Corporation, as master servicer
(the "Master Servicer") and as special servicer (the "Special Servicer") LaSalle
Bank National Association, as trustee (the "Trustee") and ABN AMRO Bank N.V., as
fiscal agent (the "Fiscal Agent");
Based on my knowledge, the information in these reports, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last day of the period
covered by that annual report;
Based upon my knowledge, the information in such reports relating to
distributions on and/or characteristics of the Certificates includes all
information of such type required to be included in the Distribution Date
Statement for the relevant period covered by the subject annual report.
Based on my knowledge, the servicing information provided to the Trustee by the
Master Servicer and the Special Servicer under the Pooling and Servicing
Agreement is included in these reports.
Date:_____________________
LASALLE BANK NATIONAL ASSOCIATION
-------------------------
[Signature]
[Title]
M-2
EXHIBIT M-3
-----------
FORM OF CERTIFICATION TO
BE PROVIDED TO DEPOSITOR
------------------------
GMAC Commercial Mortgage Securities, Inc.
Commercial Mortgage Pass-Through Certificates
Series 2003-C1
I, ________________ a ____________________ of GMAC COMMERCIAL MORTGAGE
CORPORATION ("GMACCM") on behalf of GMACCM, as [Master Servicer] [Special
Servicer] [(the "Master Servicer")] [(the "Special Servicer")], hereby certify
to GMAC Commercial Mortgage Securities, Inc. (the "Depositor") and its officers,
directors and affiliates, to the extent that the following information is within
the [Master Servicer's] [Special Servicer's] area of responsibilities and duties
under the Pooling and Servicing Agreement, and with the knowledge and intent
that they will rely upon this certification, that:
1. I am responsible for reviewing the activities performed by the
[Master Servicer] [Special Servicer] under the pooling and servicing agreement,
dated as of May 1, 2003 (the "Pooling and Servicing Agreement"), among the
Depositor, as depositor, GMACCM, as master servicer and as special servicer,
LaSalle Bank National Association, as trustee and ABN AMRO Bank N.V., as fiscal
agent, and, based upon the review performed as required under Section 3.13 of
the Pooling and Servicing Agreement, and except as disclosed on Schedule I
hereto, the [Master Servicer] [Special Servicer], to my knowledge, has fulfilled
its material obligations under the Pooling and Servicing Agreement, including
the provision of all reports required to be submitted by the [Special Servicer]
[Master Servicer] thereunder, and that, to the knowledge of the [Master
Servicer] [Special Servicer], such reports do not contain any material
misstatements or omissions; and
2. I have disclosed to the [Master Servicer's] [Special Servicer's]
certified public accountants all significant deficiencies, to my knowledge,
relating to the [Master Servicer's] [Special Servicer's] compliance with the
minimum servicing standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or similar
standard as set forth in the Pooling and Servicing Agreement.
Capitalized terms used herein and not defined shall have the respective meanings
given to them in the Pooling and Servicing Agreement.
Date:_____________________
[NAME OF [MASTER SERVICER] [SPECIAL SERVICER]]
By:________________________
Name:
Title:
M-3
SCHEDULE I
MORTGAGE LOAN SCHEDULE
MORTGAGE
RATE RATE ORIGINAL
LOAN NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE (%) TYPE BALANCE ($)
------------------------------------------------------------------------------------------------------------------------------------
1 Oakbrook Center 000 Xxxxxxxx Xxxxxx Xxx Xxxxx Xxxxxxxx 00000 5.12000 Fixed 60,000,000
39216 3535 Market 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 6.09000 Fixed 59,000,000
Xxxxxx
XX00000 Xxxxxxxx Fashion 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxx 00000 5.14000 Fixed 56,865,000
Center
Various ARC Portfolio Various Various Various Various 7.35000 Fixed 47,524,420
02-12312 ARC Portfolio - 0000 Xxxxxxxxx Xxxx Xxxxxxx Xxxxx Xxxxxxxx 00000 7,276,524
Green Spring
Valley
02-12314 ARC Portfolio - 0000 Xxxxx X.X. Xxxxxxx 00 Xxxxx Xxxx Xxxx 00000 4,738,116
Evergreen Village
02-12311 ARC Portfolio - 0000 Xxxx 00xx Xxxxxx Xxxxxx Xxxxxxxx 00000 4,547,768
Inspiration
Valley
02-12309 ARC Portfolio - 0000 Xxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 3,893,147
Mobile Gardens
00-00000 XXX Portfolio - 0000 Xxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxx 00000 3,773,006
Colonial Gardens
02-12295 ARC Portfolio - 0000 Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 3,446,835
Sheridan
02-12324 ARC Portfolio - 0000 Xxxx X.X. Xxxxxxx 00 X'Xxxxxx Xxxxxxxx 00000 2,386,739
Castle Acres
02-12293 ARC Portfolio - 0000 Xxxxx Xxxxxxx Xxxxxxxx XxxxXxxxxxxx 00000 2,304,996
Westmoor
02-12325 ARC Portfolio - 0000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxx Xxxxxxx 00000 2,188,273
Carriage Court
East
02-12326 ARC Portfolio - 0000 Xxxx Xxx Xxxxx Xxxx Xxxxxxx Xxxxxxx 00000 2,129,418
Carriage Court
Central
02-12315 ARC Portfolio - 0000 Xxxxxx Xxxxxx Xxxx Xxxxx Xxxxx 00000 1,889,721
El Lago I
02-12306 ARC Portfolio - 0000 X Xxxx Xxxxxxx Xxxxxxxx 00000 1,670,154
Picture Ranch
02-12318 ARC Portfolio - 0000 Xxxx 0xx Xxxxxx Xxxxxxxxxx Xxxxxxxx 00000 1,132,106
Eastern Villa
02-12305 ARC Portfolio - 0000 Xxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxx 00000 1,105,020
Riverchase
02-12313 ARC Portfolio - 000 Xxxxx Xxxx Xxxx Xxxxxxxxxx Xxxxxxx 00000 1,054,458
Green Cove
02-12319 ARC Portfolio - 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx 00000 1,005,572
Countryside
02-12316 ARC Portfolio - 0000 Xxxxxx Xxxxxx Xxxx Xxxxx Xxxxx 00000 873,018
El Lago II
02-12308 ARC Portfolio - 0000 Xxxx Xxxxxxxx Xxxxxxxxxx Xxxxxxxx 00000 851,795
Oakridge
(Stonegate)
02-12317 ARC Portfolio - 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx Xxxxxx 00000 747,431
El Xxxxxxxx
02-12323 ARC Portfolio - 0000 Xxxxxxx Xxxx Xxxxxxxxxx Xxxxxxx 00000 387,738
Cedar Creek
02-12294 ARC Portfolio - 0000 X. 00xx Xxxxxx Xxxxx Xxxxxxx Xxxxxx 00000 000,000
Xxxxxxxx Xxxxxx
DBM18334 Renaissance at 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxx 00000 5.93000 Fixed 39,500,000
Xxxxxxxx Xxxxxxx
XXX00000 Xxxxx Xxxxxx 0000-0000 X. Xxxxxxxx Xxxxxx Xxxxx Xxxx Xxxxxxxxxx 00000 6.00000 Fixed 37,000,000
Plaza
09-0001697 Norwest Xxxxx 000-000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxxxxx 00000 5.72000 Fixed 33,500,000
DBM18141 Empirian at 000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxxxxx 00000 5.41500 Fixed 32,300,000
Xxxxx Xxxxx
00000 Xxxxxxx Xxxxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxx 00000 7.00000 Fixed 29,300,000
at Olde Cypress
37803 Village Park 000 Xxxxxxxx Xxxxx Xxxx Xxxxxxxx 00000 5.87500 Fixed 25,125,000
Xxxxxxxxxx
00000 Xxxxxxxx Xxxx 0000 Xxxxxxx Xxxxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxxxx 00000 5.51000 Fixed 25,000,000
DBM18360 Bucks County Various Various Pennsylvania Various 5.74000 Fixed 21,800,000
Industrial
Portfolio
DBM18360-2 0000 Xxxxxxx Xxxx0000 Xxxxxxx Xxxx Xxxxxxx Xxxxxxxxxxxx 00000
REMAINING
TERM TO
CUT-OFF DATE MATURITY MATURITY DATE
LOAN NUMBER BALANCE ($) (MOS.) OR ARD
-----------------------------------------------------
1 59,572,416 113 10/01/2012
39216 58,767,308 116 01/01/2013
GA17732 56,461,243 114 11/01/2012
Various 47,152,530 108 05/01/2012
02-12312 7,219,584
02-12314 4,701,039
02-12311 4,512,181
02-12309 3,862,682
02-12322 3,743,481
02-12295 3,419,863
02-12324 2,368,062
02-12293 2,286,959
02-12325 2,171,149
02-12326 2,112,755
02-12315 1,874,934
02-12306 1,657,085
02-12318 1,123,247
02-12305 1,096,373
02-12313 1,046,207
02-12319 997,703
02-12316 866,186
02-12308 845,130
02-12317 741,582
02-12323 384,704
02-12294 121,626
DBM18334 39,500,000 120 05/01/2013
DBM18216 36,963,166 119 04/01/2013
09-0001697 33,358,286 116 01/01/2013
DBM18141 32,186,812 57 02/01/2008
36031 29,300,000 110 07/01/2012
37803 25,043,609 117 02/01/2013
39991 25,000,000 120 05/01/2013
DBM18360 21,800,000 120 05/01/2013
DBM18360-2
Schedule I-1
MORTGAGE
RATE RATE ORIGINAL
LOAN NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE (%) TYPE BALANCE ($)
------------------------------------------------------------------------------------------------------------------------------------
DBM18360-3 0000 Xxxxxxx Xxxx0000 Xxxxxxx Xxxx Xxxxxxx Xxxxxxxxxxxx 00000
DBM18360-1 000 Xxxxxxx Xxxxx000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxxxxx 00000
DBM18360-5 311 Xxxxxxxx 000 Xxxxxxxx Xxxx Xxxxxxx Xxxxxxxxxxxx 00000
Road
DBM18360-4 0000 Xxxxxxx Xxx 0000 Xxxxxxx Xxx Xxxxxxxxx Xxxxxxxxxxxx 00000
02-11111 Clinton, NJ 000 Xxxxxxxxx Xxxx Xxxxxxx Xxx Xxxxxx 00000 6.45000 Fixed 20,246,776
Distribution
39325 Slate Creek 0000 Xxxx Xxxxxxx Xxxx Xx Xxxxx Xxxxxxxxxx 00000 5.85000 Fixed 18,954,000
Apartments
38473 Hologic Various Various Various Various 6.40000 Fixed 18,500,000
Facilities
38473-1 Bedford Property 00 Xxxxxx Xxxxx Xxxxxxx Xxxxxxxxxxxxx 00000
38473-2 Danbury Property 00 Xxxxx Xxxxx Xxxx Xxxxxxx Xxxxxxxxxxx 00000
DBM17968 Versar Center 1 6800 & 0000 Xxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxxx 00000 6.18000 Fixed 18,500,000
& 2
39090 Hampton Inn 00 Xxxx Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx 00000 5.90000 Fixed 18,000,000
Xxxxxxx
00000 Xxxxxxxxx 4010-4351 Xxxxxxxx Xxxxxx Xx. Xxxxxx Xxx Xxxxxx 00000 5.50000 Fixed 17,850,000
Crossing
00000 Xxxxxxxx Xxxxxx 6230 and 0000 Xxxxxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxxxx 00000 5.25000 Fixed 16,000,000
I & II
DBM18098 Catalina Centre 1501-1799 X. Xxxxxxxx Xxxxxx Xxxxxxx XxxxxXxxxxxx 00000 6.00000 Fixed 15,600,000
09-0001720 Xxxxxxxx Xxxxx 0000-0000 and 2950-2980 South Xxxxxxxx Xxxxxxx 00000 5.64000 Fixed 14,100,000
Shopping Center Xxxx School Road
00000 Xxxxxxxxx Xxxxx 0000-0000 XX 0000 Xxxx Xxxxxx Xxxxx 00000 6.10000 Fixed 14,000,000
DBM18149 Desert Crossing 00-000,-000,-000,-000 & Xxxxxxx Xxxx Xxxxxx Xxxxxxxxxx 00000 5.93000 Fixed 13,800,000
Oshmans 111
03-12933 EQR Portfolio - 0000 Xxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxx 00000 5.67000 Fixed 4,250,000
Country Club
Xxxxx Apartments
03-12935 EQR Portfolio - 000 Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxx 00000 5.67000 Fixed 3,780,000
Spring Lake Manor
03-12934 EQR Portfolio - 0000 Xxxx Xxxx Xxxx Xxxxxxxxxx Xxxxxxx 00000 5.67000 Fixed 3,650,000
Xxxx Xxxxx
Xxxxxxxxxx
00000 12th and Walnut 0000-00 Xxxxxx Xxxxxx Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 5.85000 Fixed 11,500,000
Street Garage
09-0001703 Market Square 0000-0000 00xx Xxxxxx Xxxxxxx Xxxxxxxx 00000 5.75000 Fixed 11,400,000
DBM18401 International 000 Xxxx Xxxxx Xxxxxxxxx Xxxx Xxxxx Xxxxxxxxxx 00000 5.69000 Fixed 11,100,000
Xxxx Xxxx
Xxxxxxxx
00000 Xxxxxxxxxx 21540-21622 Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxxx 00000 5.78000 Fixed 11,000,000
Business Center
DBM17842 Xxxxx Apartment Various Various New York Various 5.67000 Fixed 10,752,000
Portfolio 8
DBM17842-1 00-00 00xx Xxxxxx00-00 00xx Xxxxxx Xxxxxxxx Xxx Xxxx 00000
DBM17842-2 42-29 Judge 00-00 Xxxxx Xxxxxx Xxxxxxxx Xxx Xxxx 00000
Street
DBM17842-3 43-23 Ithaca 00-00 Xxxxxx Xxxxxx Xxxxxxxx Xxx Xxxx 00000
Street
DBM17842-4 00-00 00xx Xxxxx 00-00 00xx Xxxxx Xxxxxxxxx Xxx Xxxx 00000
DBM17842-5 00-00 00xx Xxxxx 00-00 00xx Xxxxx Xxxxxxxxx Xxx Xxxx 00000
09-0001742 Southport Plaza 0000 X.X. 00 Xxxxx Xxxxxxxxxxxx Xxxxxxx 00000 5.61000 Fixed 10,600,000
Shopping Center
38879 0000 Xxxxx Xxxx 0000 Xxxxx Xxxx Xxxx Xxxxxxx Xxxxx 00000 6.00000 Fixed 10,602,000
West
38736 White Xxxx XX 000 Xxxxx Xxxx Xxxxxx Xxxxx Xxxxx Xxxx Xxxxxxxx 00000 5.43000 Fixed 6,135,000
Creek Hundred
39228 Xxxxx Xxxx III 000 Xxxxx Xxxx Xxxxxx Xxxxx Xxxxx Xxxx Xxxxxxxx 00000 5.43000 Fixed 4,315,000
Creek Hundred
01-09387 West Broward 0000-0000 Xxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxx 00000 6.64000 Fixed 10,450,000
Shopping Center
39589 Teachers Flex Various Various Pennsylvania Various 5.75000 Fixed 9,120,000
Portfolio
39589-1 000 Xxxxx Xxxx 000 Xxxxx Xxxx Xxxxxxx Xxxxxxxxxxxx 00000
39589-2 000 Xxxxx Xxxxx 000 Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxxxx 00000
09-0001745 400 East 55th 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx 00000 5.37500 Fixed 9,000,000
Street
REMAINING
TERM TO
CUT-OFF DATE MATURITY MATURITY DATE
LOAN NUMBER BALANCE ($) (MOS.) OR ARD
------------------------------------------------------
DBM18360-3
DBM18360-1
DBM18360-5
DBM18360-4
02-11111 20,246,776 120 05/01/2013
39325 18,875,762 116 01/01/2013
38473 18,500,000 240 05/01/2023
38473-1
38473-2
DBM17968 18,428,280 116 01/01/2013
39090 17,878,153 81 02/01/2010
39526 17,830,462 119 04/01/2013
40403 16,000,000 60 06/01/2008
DBM18098 15,550,534 117 02/01/2013
09-0001720 14,100,000 119 04/01/2013
35637 13,944,890 116 01/01/2013
DBM18149 13,755,714 117 02/01/2013
03-12933 4,235,741 117 02/01/2013
03-12935 3,767,318 117 02/01/2013
03-12934 3,637,754 117 02/01/2013
39876 11,467,832 118 03/01/2013
09-0001703 11,400,000 118 03/01/2013
DBM18401 11,100,000 84 05/01/2010
39912 10,988,581 119 04/01/2013
DBM17842 10,730,853 118 03/01/2013
DBM17842-1
DBM17842-2
DBM17842-3
DBM17842-4
DBM17842-5
09-0001742 10,600,000 120 05/01/2013
38879 10,559,464 116 01/01/2013
38736 6,135,000 120 05/01/2013
39228 4,315,000 120 05/01/2013
01-09387 10,388,531 113 10/01/2012
39589 9,102,374 58 03/01/2008
39589-1
39589-2
09-0001745 9,000,000 120 05/01/2013
Schedule I-2
MORTGAGE
RATE RATE ORIGINAL
LOAN NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE (%) TYPE BALANCE ($)
------------------------------------------------------------------------------------------------------------------------------------
00000 Xxxxxxx Xxxxx 0000 Xxxxxxxxxx 00 Xxxxx Xxxxxxx Xxxxxxxxxxx 00000 6.10000 Fixed 8,500,000
Shopping Center
DBM18137 Warren Village 0 Xxxxx Xxxxxx Xxxx Xxxxxx Xxx Xxxxxx 00000 5.84000 Fixed 8,250,000
Shopping Center
DBM17495 Freeway SWC 000 Xxxx xxx 0000 Xxxxx Xxxx Xxxx Xxxx 00000 6.81000 Fixed 8,000,000
Xxxxxxxxxx Xxxx Xxxx
XXX00000 Xxxxxx Xxxxxx 000-000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxxx 00000 6.23000 Fixed 7,900,000
Shopping Center
DBM18150 Desert Crossing 72-333, 72-353, 72-363 & 00-000 Xxxx Xxxxxx Xxxxxxxxxx 00000 5.93000 Fixed 7,900,000
Islands Xxxxxxx 000
00000 Xxxxxx Xxxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx 00000 5.92000 Fixed 7,100,000
Apartments
38908 Riverwalk 9300 and 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxxx Xxxxxxxxxx 00000 5.55000 Fixed 6,948,000
Medical Office
Building
DBM17936 The Reserves at 000 Xxxxx Xxxxx Xxxxxxxxxxxx Xxxxx Xxxxxxxx 00000 5.75000 Fixed 6,915,000
Xxxxxxxxxxxx
Xxxxxxx, Xxxxx
XXX
00000 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxxxxx Xxx Xxxx 00000 5.81000 Fixed 6,700,000
32563 Garden Lakes 00000 Xxxx Xxxxxx Xxxxxx Xxxx Xxxxxxx Xxxxxxx 00000 7.69000 Fixed 6,720,000
Shopping Center
00000 Xxxxxxxx Xxxxxxx 0000 Xxxx Xxxxxxxxxxxx Xxxxxxx Xxxx Xxxxxxx 00000 5.99000 Fixed 6,500,000
Boulevard
37839 Xxxxxxxxx 000-000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx 00000 6.10000 Fixed 6,500,000
Promenade
DBM18140 Portabello 0000 Xxxxxxxxxx Xxxx Xxxx Xxxx Xxxxxxxx 00000 5.74000 Fixed 6,400,000
Apartments
DBM18087 Renaissance 000 Xxxxx Xxxxx Xxxx Xxxx Xxxxxxxx Xxxxxxxx 00000 6.25000 Fixed 6,200,000
Xxxxx Xxxxxxxx Xxxxx
Xxxxxx
00000 Pacific Skies 0000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxx 00000 5.85000 Fixed 6,000,000
Xxxxxx Xxxxxxx
00000 Victory- Kenner 0000 Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx 00000 5.80000 Fixed 5,825,000
Marketplace
39369 000 Xxxxxxxx Xxxx000 Xxxxxxxx Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxxxx 00000 5.77000 Fixed 5,616,000
09-0001727 Ashton Towers 00000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxx 00000 5.27000 Fixed 5,350,000
Xxxxxxxxxx
00-0000000 Xxxxxxxxx Xxxxxx 000 Xxxxxx Xxxx Xxxx Xxxxxxxxxx 00000 5.77000 Fixed 5,300,000
Center
37881 One Park Ten 0000 Xxxx Xxx Xxxxxxxxx Xxx Xxxxxxx Xxxxx 00000 5.75000 Fixed 5,300,000
DBM17879 Xxxxxxxxxxx 0000-00 Xxxxxxxxxx Xxxx Xxxxxxx Xxxxxxxx 00000 6.48000 Fixed 5,200,000
Square II
Apartments
DBM18301 Flushing Estates 0000 Xxxxxxxx Xxxx Xxxxxxxx Xxxxxxxx 00000 5.65000 Fixed 5,000,000
DBM16381 Executive Terrace1400 & 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxx 00000 5.30000 Fixed 5,000,000
09-0001737 Victory Crossing 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxxx 00000 5.49000 Fixed 4,900,000
Shopping Center
DBM18005 Foxwood 11557,11561 & 11565 Robinwood Xxxxxxxxxx Xxxxxxxx 00000 5.92000 Fixed 4,880,000
Xxxxxxxxxx Xxxxx
00000 Xxxxxxxxx 0000-0000 Xxxxxxxxxxxx Xxxx xxx Xxxxxxxxx Xxxxxxxx 00000 6.10000 Fixed 4,750,000
Shopping Center 0000 Xxxxxxxxx Xxxx
00000 Xxxxx Plaza 0000 Xxxx Xxx Xxxxx Xxxxx Xxxxxxx 00000 7.24000 Fixed 4,550,000
Xxxxxxxx Xxxxxx
00000 Xxxxxxx Xxxxx 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxx 00000 6.15000 Fixed 4,430,000
Medical &
Corporate Center
DBM18361 High Bluff 0000 Xxxxxxxx Xxxxx Xxxx Xxxx Xxxx 00000 5.80000 Fixed 4,400,000
Shopping Center
09-0001729 Parkway Plaza 000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxxx 00000 5.55000 Fixed 4,340,000
Shopping Center
DBM18091 00000 Xxxxx Xxxx 00000 Xxxxx Xxxx Xxxxxxx Xxxxxxxx 00000 5.23000 Fixed 4,375,000
39901 Rolling Hills 000 Xxxx Xxxx Xxxx Xxxxxxxxxxx Xxxxxxx 00000 5.10000 Fixed 4,225,000
Apartments
DBM17938 Xxxxx Xxxx Xxxxxx000 and 000 Xxxxx Xxxx Xxxxxx Xxx Xxxx Xxx Xxxx 00000 5.90000 Fixed 3,900,000
00000 Xxxxxx Xxxxxxx 0000 Xxxx Xxxx Xxxxx Xxxxxx Xxxxxxxxxx 00000 5.65000 Fixed 3,855,000
Xxxxx Xxxxxxx
00000 Xxxxxxx- 0000 XX Xxxxxxx 00 Xxxxx Xxxxxxxx Xxxxxxxxxxx 00000 6.00000 Fixed 3,800,000
Xxxxxxxx Xxxxx
00000 0000 Xxxxxx 0000 Xxxxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxxxxx 00000 6.01000 Fixed 3,500,000
Turnpike
DBM18097 Orchard Towne 000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx 00000 5.97000 Fixed 3,450,000
Apartments
38360 Sun Prairie VI 0000-0000 Xxxxxxx Xxxx Xxxxx Xxxx Xxx Xxxx 00000 5.19000 Fixed 3,300,000
Moines
00000 Xxxxxxxx Xxxxxx 35450-35584 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx 00000 6.13000 Fixed 3,200,000
Hills
REMAINING
TERM TO
CUT-OFF DATE MATURITY MATURITY DATE
LOAN NUMBER BALANCE ($) (MOS.) OR ARD
---------------------------------------------------
39280 8,484,803 118 03/01/2013
DBM18137 8,241,533 119 04/01/2013
DBM17495 8,000,000 120 05/01/2013
DBM17909 7,879,313 58 03/01/2008
DBM18150 7,874,648 117 02/01/2013
37469 7,071,079 116 01/01/2013
38908 6,917,655 116 01/01/2013
DBM17936 6,892,115 117 02/01/2013
38170 6,672,134 116 01/01/2013
32563 6,615,366 97 06/05/2011
39093 6,500,000 116 01/01/2013
37839 6,488,379 118 03/01/2013
DBM18140 6,393,305 119 04/01/2013
DBM18087 6,194,117 119 04/01/2013
39413 5,988,657 118 03/01/2013
38863 5,816,333 83 04/01/2010
39369 5,597,478 117 02/01/2013
09-0001727 5,350,000 119 04/01/2013
09-0001706 5,300,000 119 04/01/2013
37881 5,272,390 56 01/01/2008
DBM17879 5,147,236 235 12/01/2022
DBM18301 5,000,000 120 05/01/2013
DBM16381 4,952,693 116 01/01/2013
09-0001737 4,900,000 120 05/01/2013
DBM18005 4,870,916 118 03/01/2013
38466 4,726,660 116 01/01/2013
36471 4,520,050 111 08/01/2012
37841 4,422,169 118 03/01/2013
DBM18361 4,400,000 120 05/01/2013
09-0001729 4,340,000 119 04/01/2013
DBM18091 4,333,271 116 01/01/2013
39901 4,225,000 58 03/01/2008
DBM17938 3,892,708 118 03/01/2013
38377 3,838,476 116 01/01/2013
38866 3,800,000 84 05/01/2010
39639 3,493,615 118 03/01/2013
DBM18097 3,439,004 117 02/01/2013
38360 3,289,682 99 08/01/2011
39800 3,196,893 119 04/01/2013
Schedule I-3
MORTGAGE
RATE RATE ORIGINAL
LOAN NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE (%) TYPE BALANCE ($)
------------------------------------------------------------------------------------------------------------------------------------
DBM17969 Northfield 00 Xxxxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx Xxxxx Xxxxxxxx 00000 6.02000 Fixed 3,150,000
Shopping Center
39669 500 Old Country 000 Xxx Xxxxxxx Xxxx Xxxxxx Xxxx Xxx Xxxx 00000 6.10000 Fixed 3,000,000
Road
39358 Avanti East 000 Xxxxxxxxx 0xx Xxxxxx Xxx'x Xxxxxx Xxxxxxxx 00000 5.40000 Fixed 3,000,000
Xxxxxxxxxx
00000 Xxxxx Xxxxx 0000 Xxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxx 00000 6.00000 Fixed 3,000,000
Xxxxxx Xxxxxxxx Xxxxx
XXX00000 Centralia 0000-0000 Xxxxxxx Xxxx Xxxxxxx Xxxxxxxx 00000 5.77000 Fixed 2,960,000
Crossing
39795 Valley Vista 00000 Xxxxxx Xxxxx Xxxxxxxxx Xxxxxxx Xxxx Xxxxxxxxxx 00000 5.63000 Fixed 2,900,000
Apartments
DBM17961 Sav-On Drugstore 0000 Xxxx Xxxx Xxxxxxxxx Xxx Xxxxxxx Xxxxxxxxxx 00000 6.13000 Fixed 2,857,000
DBM17776 000 Xxxxxxxx Xxxx000 Xxxxxxxx Xxxx Xxxxxxxx Xxx Xxxx 00000 6.25000 Fixed 2,705,000
DBM18524 South Chase 0000 Xxxxxx Xxxxxxx Xxxxx 00000 6.25000 Fixed 2,560,000
Apartments
09-0001733 Old Egg Auction 00 Xxxx Xxxxxx Xxxxxxxxxx Xxx Xxxxxx 00000 5.54000 Fixed 2,400,000
30719 Countryside 0000 Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxx 00000 7.62500 Fixed 2,400,000
Village
Apartments
09-0001707 Hawks Ridge 0000-0000 Xxxx Xxxxx Xxxxxxx Xxxxxxxxx 00000 5.69000 Fixed 2,325,000
Apartments
DBM17963 Washington & 1311 & 0000 Xxxx Xxxxxxxxxx Xxx Xxxxxxx Xxxxxxxxxx 00000 6.13000 Fixed 2,325,000
Xxxxxx Xxxxxxxxx
XXX00000 Walgreens Xxxxxxx0000 Xxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxx 00000 6.53000 Fixed 2,170,000
09-0001719 Shoppes at 0000 Xxxxxxxx Xxxx Xxxxxxx Xxxxxxx 00000 5.71000 Fixed 2,125,000
Thomson
DBM17811 Xxxxxxxxxxx 000-000 Xxxx Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx 00000 5.95000 Fixed 2,085,000
Downs Apartments
09-0001744 Amberlake 0000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxx 00000 5.83000 Fixed 2,075,000
Apartments
40346 Xxxx Apartments 0000 Xxxx Xxxxxx Xx. Xxxxx Xxxxxxx 00000 5.82000 Fixed 2,000,000
00000 XxxXxxxx 32395-32443 Xxxxxxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxxx 00000 6.13000 Fixed 2,000,000
Xxxxxxxx Xxxxxx Xxxxx
00-0000000 Xxxxxxx Xxxxxxx 0000 Xxxxxx Xxxx Xxxxxxx Xxxxx Xxxxxxxx 00000 5.71000 Fixed 1,970,000
00000 Xxxxxxxxx Xxxx 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxx 00000 5.87500 Fixed 1,950,000
Xxxxx
00000 Xxxxxx Xxxxxxx 0000 Xxxxx Xxxxxx Xxxx Xxxxx Xxxx 00000 6.50000 Fixed 1,800,000
00000 Xxxxxxx Xxx 0000 Xxxxxxx Xxx Xxxxxxx XxxxxXxxxxxxxxx 00000 5.58000 Fixed 1,775,000
Apartments
DBM17962 McDonald's 0000 Xxxx Xxxxxx Xxxxxxxxx Xxx Xxxxxxx Xxxxxxxxxx 00000 6.13000 Fixed 1,575,000
Xxxxxxx Xxxxxx
00000 Xxxxxxxxx Self 0000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx 00000 6.12500 Fixed 1,000,000
Storage
38297 Third & C 312 and 000 Xxxxx Xxxxxx Xxxxx Xxxxxxxxxx 00000 6.37500 Fixed 945,000
Building
REMAINING
TERM TO
UT-OFF DATE MATURITY MATURITY DATE
LOAN NUMBER ALANCE ($) (MOS.) OR ARD
--------------------------------------------------
DBM17969 3,146,876 119 04/01/2013
39669 3,000,000 120 05/01/2013
39358 2,996,654 119 04/01/2013
38494 2,990,487 117 02/01/2013
DBM17910 2,956,921 119 04/01/2013
39795 2,900,000 119 04/01/2013
DBM17961 2,851,926 118 03/01/2033
DBM17776 2,696,782 117 02/01/2013
DBM18524 2,560,000 60 05/01/2008
09-0001733 2,400,000 120 05/01/2013
30719 2,362,054 97 06/05/2011
09-0001707 2,322,545 119 04/01/2013
DBM17963 2,320,871 118 03/01/2033
DBM17901 2,157,974 115 12/01/2032
09-0001719 2,118,912 118 03/01/2013
DBM17811 2,076,555 116 01/01/2013
09-0001744 2,075,000 120 05/01/2013
40346 2,000,000 120 05/01/2013
39801 1,998,058 119 04/01/2013
09-0001718 1,964,356 118 03/01/2013
39121 1,947,531 119 04/01/2013
36933 1,787,399 112 09/01/2012
38877 1,775,000 116 01/01/2013
DBM17962 1,572,203 118 03/01/2033
38185 1,000,000 120 05/01/2013
38297 941,471 116 01/01/2013
Schedule I-4
MORTGAGE LOAN SCHEDULE
(CONTINUED)
ANTICIPATED DATE CREDIT CROSS ANNUAL BROKER
REPAYMENT PAYMENT MONTHLY ARD LEASE PREPAYMENT COLLATERALIZED DEBT STRIP
LOAN NUMBER DATE DUE PAYMENT LOAN LOAN PROVISION GROUPS SERVICE ($) LOAN
------------------------------------------------------------------------------------------------------------------------------------
1 1 326,507.62 Lockout/30_Defeasance/85_0%/4 3,918,091
39216 1 357,155.91 Lockout/28_Defeasance/88_0%/4 4,285,871
GA17732 1 310,147.55 Lockout/30_Defeasance/83_0%/7 3,721,771
Various 1 327,430.00 Lockout/35_Defeasance/83_0%/1 3,929,160
02-12312
02-12314
02-12311
02-12309
02-12322
02-12295
02-12324
02-12293
02-12325
02-12326
02-12315
02-12306
02-12318
02-12305
02-12313
02-12319
02-12316
02-12308
02-12317
02-12323
02-12294
DBM18334 1 235,047.72 Lockout/24_Defeasance/92_0%/4
DBM18216 1 221,833.69 Lockout/25_Defeasance/91_0%/4
09-0001697 1 194,858.95 Lockout/28_Defeasance/88_0%/4
DBM18141 1 181,677.00 Lockout/27_Defeasance/29_0%/4 Yes
36031 1 194,933.63 Lockout/34_Defeasance/82_0%/4
37803 1 148,623.86 Lockout/27_Defeasance/91_0%/2
39991 1 142,104.14 Lockout/24_Defeasance/91_0%/5
DBM18360 1 127,080.43 Lockout/24_Defeasance/92_0%/4 1,524,965
DBM18360-2
DBM18360-3
ADDITIONAL ENVIRONMENTAL SERVICING
SERVICING INSURANCE LETTER OF FEE RATE
LOAN NUMBER FEE LOAN LOAN CREDIT LOAN LEASEHOLD (%) LOAN SELLER
-----------------------------------------------------------------------------------------
1 MSMC
39216 GMACCM
GA17732 Yes Deutsche Bank
Various MSMC
02-12312 MSMC
02-12314 MSMC
02-12311 MSMC
02-12309 MSMC
02-12322 MSMC
02-12295 MSMC
02-12324 MSMC
02-12293 MSMC
02-12325 MSMC
02-12326 MSMC
02-12315 MSMC
02-12306 MSMC
02-12318 MSMC
02-12305 MSMC
02-12313 MSMC
02-12319 MSMC
02-12316 MSMC
02-12308 MSMC
02-12317 MSMC
02-12323 MSMC
02-12294 MSMC
DBM18334 Deutsche Bank
DBM18216 Deutsche Bank
09-0000000 Yes GSMC
DBM18141 Deutsche Bank
36031 GMACCM
37803 Yes GMACCM
39991 GMACCM
DBM18360 Deutsche Bank
DBM18360-2 Deutsche Bank
DBM18360-3 Deutsche Bank
Schedule I-5
ANTICIPATED DATE CREDIT CROSS ANNUAL BROKER
REPAYMENT PAYMENT MONTHLY ARD LEASE PREPAYMENT COLLATERALIZED DEBT STRIP
LOAN NUMBER DATE DUE PAYMENT LOAN LOAN PROVISION GROUPS SERVICE ($) LOAN
-----------------------------------------------------------------------------------------------------------------------------------
DBM18360-1
DBM18360-5
DBM18360-4
02-11111 1 127,308.36 Lockout/24_Defeasance/92_0%/4 1,527,700
39325 1 111,817.40 Lockout/28_Defeasance/88_0%/4 1,341,809
38473 1 136,844.05 Lockout/24_Defeasance/211_0%/5 1,642,129
38473-1
38473-2
DBM17968 1 113,066.78 Lockout/28_Defeasance/88_0%/4 1,356,801
39090 1 127,921.32 Lockout/39_Defeasance/41_0%/4 1,535,056
39526 1 101,350.34 Lockout/25_Defeasance/91_0%/4 1,216,204
40403 1 Lockout/23_Defeasance/33_0%/4 1,060,231
DBM18098 1 Lockout/27_Defeasance/89_0%/4 1,122,359
09-0001720 1 Lockout/25_Defeasance/91_0%/4 975,614
35637 1 Lockout/28_Defeasance/87_0%/5 1,018,071
DBM18149 1 Lockout/27_Defeasance/89_0%/4 985,415
03-12933 1 Lockout/27_DefeasanceGroup%A4 Group A 295,035
03-12935 1 Lockout/27_DefeasanceGroup%A4 Group A 262,408
03-12934 1 Lockout/27_DefeasanceGroup%A4 Group A 253,383
39876 1 Lockout/26_Defeasance/90_0%/4 876,526
09-0001703 1 Lockout/26_Defeasance/90_0%/4 798,328
DBM18401 1 Lockout/24_Defeasance/56_0%/4 772,249
39912 1 Lockout/25_Defeasance/92_0%/3 772,834
DBM17842 1 Lockout/26_Defeasance/90_0%/4 746,405
DBM17842-1
DBM17842-2
DBM17842-3
DBM17842-4
DBM17842-5
09-0001742 1 Lockout/24_Defeasance/92_0%/4 Yes
38879 1 Lockout/28_Defeasance/90_0%/2 731,031
38736 1 Lockout/24_DefeasanceGroup%B3 762,772
39228 1 Lockout/24_DefeasanceGroup%B3 Group B 414,779
01-09387 1 Lockout/31_Defeasance/85_0%/4 Group B 291,731
39589 1 Lockout/26_Defeasance/32_0%/2 804,194
39589-1 638,662
39589-2
09-0001745 1 Lockout/24_Defeasance/92_0%/4 604,769
ADDITIONAL ENVIRONMENTAL SERVICING
SERVICING INSURANCE LETTER OF FEE RATE
LOAN NUMBER FEE LOAN LOAN CREDIT LOAN LEASEHOLD (%) LOAN SELLER
------------------------------------------------------------------------------------------
DBM18360-1 Deutsche Bank
DBM18360-5 Deutsche Bank
DBM18360-4 Deutsche Bank
02-11111 MSMC
39325 GMACCM
38473 GMACCM
38473-1 GMACCM
38473-2 GMACCM
DBM17968 Deutsche Bank
39090 GMACCM
39526 GMACCM
40403 GMACCM
DBM18098 Yes Deutsche Bank
09-0000000 GSMC
35637 GMACCM
DBM18149 Deutsche Bank
03-12933 Yes MSMC
03-12935 Yes MSMC
03-12934 Yes MSMC
39876 GMACCM
09-0001703 GSMC
DBM18401 Deutsche Bank
39912 GMACCM
DBM17842 Deutsche Bank
DBM17842-1 Deutsche Bank
DBM17842-2 Deutsche Bank
DBM17842-3 Deutsche Bank
DBM17842-4 Deutsche Bank
DBM17842-5 Deutsche Bank
09-0000000 GSMC
38879 GMACCM
38736 GMACCM
39228 GMACCM
01-09387 Yes XXXX
00000 GMACCM
39589-1 GMACCM
39589-2 GMACCM
09-0001745 Yes GSMC
Schedule I-6
ANTICIPATED DATE CREDIT CROSS ANNUAL BROKER
REPAYMENT PAYMENT MONTHLY ARD LEASE PREPAYMENT COLLATERALIZED DEBT STRIP
LOAN NUMBER DATE DUE PAYMENT LOAN LOAN PROVISION GROUPS SERVICE ($) LOAN
-----------------------------------------------------------------------------------------------------------------------------------
39280 1 51,509.56 Lockout/26_Defeasance/92_0%/2 51,509.56
DBM18137 1 48,617.48 Lockout/25_Defeasance/91_0%/4 48,617.48
DBM17495 1 52,207.32 Lockout/24_Defeasance/92_0%/4 52,207.32
DBM17909 1 52,016.26 Lockout/26_Defeasance/30_0%/4 52,016.26
DBM18150 1 47,009.54 Lockout/27_Defeasance/89_0%/4 47,009.54
37469 1 42,203.60 Lockout/28_Defeasance/89_0%/3 42,203.60
38908 1 39,668.22 Lockout/28_Defeasance/89_0%/3 39,668.22
DBM17936 1 40,354.06 Lockout/27_Defeasance/89_0%/4 40,354.06
38170 1 39,355.13 Lockout/28_Defeasance/90_0%/2 39,355.13
32563 5 47,864.58 Lockout/35_Defeasance/83_0%/2 47,864.58
39093 1 38,929.00 Lockout/28_Defeasance/90_0%/2 38,929.00
37839 1 39,389.66 Lockout/26_Defeasance/91_0%/3 39,389.66
DBM18140 1 37,308.02 Lockout/25_Defeasance/91_0%/4 37,308.02
DBM18087 1 38,174.47 Lockout/25_Defeasance/91_0%/4 38,174.47
39413 1 35,396.46 Lockout/26_Defeasance/92_0%/2 35,396.46
38863 1 36,821.65 Lockout/25_Defeasance/57 36,821.65
39369 1 32,844.84 Lockout/27_Defeasance/91_0%/2 32,844.84
09-0001727 1 29,609.21 Lockout/25_Defeasance/91_0%/4 29,609.21
09-0001706 1 30,996.73 Lockout/25_Defeasance/91_0%/4 30,996.73
37881 1 32,248.86 Lockout/28_Defeasance/29_0%/3 32,248.86
DBM17879 1 38,708.60 Lockout/29_Defeasance/207_0%/4 38,708.60
DBM18301 1 28,861.79 Lockout/24_Defeasance/92_0%/4 28,861.79
DBM16381 1 33,832.02 Lockout/28_Defeasance/88_0%/4 33,832.02
09-0001737 1 27,790.92 Lockout/24_Defeasance/92_0%/4 27,790.92 Yes
DBM18005 1 29,007.54 Lockout/26_Defeasance/90_0%/4 29,007.54
38466 1 29,936.52 Lockout/28_Defeasance/90_0%/2 29,936.52
36471 1 31,008.17 Lockout/33_Defeasance/85_0%/2 31,008.17
37841 1 26,988.81 Lockout/26_Defeasance/92_0%/2 26,988.81
DBM18361 1 25,817.13 Lockout/24_Defeasance/92_0%/4 25,817.13
09-0001729 1 24,778.36 Lockout/25_Defeasance/91_0%/4 24,778.36 Yes
DBM18091 1 29,431.82 Lockout/28_Defeasance/88_0%/4 29,431.82
39901 1 24,040.13 Lockout/26_Defeasance/30_0%/4 24,040.13
DBM17938 1 23,132.32 Lockout/26_Defeasance/90_0%/4 23,132.32
38377 1 22,252.44 Lockout/28_Defeasance/90_0%/2 22,252.44
38866 1 24,020.99 Lockout/24_Defeasance/58_0%/2 24,020.99
39639 1 21,006.78 Lockout/26_Defeasance/92_0%/2 21,006.78
DBM18097 1 20,618.00 Lockout/27_Defeasance/89_0%/4 20,618.00
38360 1 19,658.53 Lockout/26_Defeasance/73_0%/2 19,658.53
ADDITIONAL ENVIRONMENTAL SERVICING
SERVICING INSURANCE LETTER OF FEE RATE
LOAN NUMBER FEE LOAN LOAN CREDIT LOAN LEASEHOLD (%) LOAN SELLER
------------------------------------------------------------------------------------------
39280 GMACCM
DBM18137 Deutsche Bank
DBM17495 Deutsche Bank
DBM17909 Yes Yes Deutsche Bank
DBM18150 Deutsche Bank
37469 GMACCM
38908 GMACCM
DBM17936 Deutsche Bank
38170 GMACCM
32563 GMACCM
39093 GMACCM
37839 GMACCM
DBM18140 Deutsche Bank
DBM18087 Yes Deutsche Bank
39413 GMACCM
38863 Yes Leasehold GMACCM
39369 GMACCM
09-0001727 GSMC
09-0001706 Yes GSMC
37881 GMACCM
DBM17879 Deutsche Bank
DBM18301 Deutsche Bank
DBM16381 Deutsche Bank
09-0000000 GSMC
DBM18005 Deutsche Bank
38466 GMACCM
36471 GMACCM
37841 GMACCM
DBM18361 Deutsche Bank
09-0000000 GSMC
DBM18091 Deutsche Bank
39901 Yes GMACCM
DBM17938 Deutsche Bank
38377 GMACCM
38866 Leasehold GMACCM
39639 GMACCM
DBM18097 Deutsche Bank
38360 GMACCM
Schedule I-7
ANTICIPATED DATE CREDIT CROSS ANNUAL BROKER
REPAYMENT PAYMENT MONTHLY ARD LEASE PREPAYMENT COLLATERALIZED DEBT STRIP
LOAN NUMBER DATE DUE PAYMENT LOAN LOAN PROVISION GROUPS SERVICE ($) LOAN
-----------------------------------------------------------------------------------------------------------------------------------
39800 1 19,453.89 Lockout/25_Defeasance/91_0%/4 19,453.89
DBM17969 1 18,926.36 Lockout/25_Defeasance/91_0%/4 18,926.36
39669 1 18,179.84 Lockout/24_Defeasance/94_0%/2 18,179.84
39358 1 16,845.92 Lockout/25_Defeasance/93_0%/2 16,845.92
38494 1 17,986.52 Lockout/27_Defeasance/90_0%/3 17,986.52
DBM17910 1 17,311.38 Lockout/25_Defeasance/91_0%/4 17,311.38
39795 1 17,167.84 Lockout/25_Defeasance/92_0%/3 17,167.84
DBM17961 03/01/2013 1 17,368.67 Yes Lockout/26_Defeasance/90_0%/4 17,368.67 Yes
DBM17776 1 16,655.15 Lockout/27_Defeasance/89_0%/4 16,655.15
DBM18524 1 15,762.36 Lockout/24_Defeasance/32_0%/4 15,762.36
09-0001733 1 13,687.23 Lockout/24_Defeasance/92_0%/4 13,687.23
30719 5 16,987.05 Lockout/35_Defeasance/83_0%/2 16,987.05
09-0001707 1 13,479.58 Lockout/25_Defeasance/91_0%/4 13,479.58
DBM17963 03/01/2013 1 14,134.46 Yes Lockout/26_Defeasance/90_0%/4 14,134.46 Yes
DBM17901 12/01/2012 1 14,267.13 Yes Lockout/29_Defeasance/87_0%/4 14,267.13
09-0001719 1 13,317.19 Lockout/26_Defeasance/90_0%/4 13,317.19 Yes
DBM17811 1 12,433.68 Lockout/28_Defeasance/88_0%/4 12,433.68
09-0001744 1 12,214.79 Lockout/24_>YM 12,214.79 Yes
40346 1 12,666.87 Lockout/24_Defeasance/94_0%/2 12,666.87
39801 1 12,158.68 Lockout/25_Defeasance/91_0%/4 12,158.68
09-0001718 1 12,345.82 Lockout/26_Defeasance/90_0%/4 12,345.82 Yes
39121 1 12,015.99 Lockout/25_Defeasance/93_0%/2 12,015.99
36933 1 11,377.22 Lockout/32_Defeasance/86_0%/2 11,377.22
38877 1 10,452.98 Lockout/28_Defeasance/89_0%/3 10,452.98
DBM17962 03/01/2013 1 9,574.96 Yes Lockout/26_Defeasance/90_0%/4 9,574.96 Yes
38185 1 5,895.57 Lockout/24_>YM 6,076.11
38297 1 6,076.11 Lockout/28_Defeasance/90_0%/2 5,895.57
5,895.57 70,747
ADDITIONAL ENVIRONMENTAL SERVICING
SERVICING INSURANCE LETTER OF FEE RATE
LOAN NUMBER FEE LOAN LOAN CREDIT LOAN LEASEHOLD (%) LOAN SELLER
-----------------------------------------------------------------------------------------
39800 GMACCM
DBM17969 Deutsche Bank
39669 GMACCM
39358 GMACCM
38494 GMACCM
DBM17910 Deutsche Bank
39795 GMACCM
DBM17961 Deutsche Bank
DBM17776 Deutsche Bank
DBM18524 Deutsche Bank
09-0000000 GSMC
30719 GMACCM
09-0001707 Yes Yes GSMC
DBM17963 Deutsche Bank
DBM17901 Yes Deutsche Bank
09-0000000 GSMC
DBM17811 Deutsche Bank
09-0000000 GSMC
40346 GMACCM
39801 GMACCM
09-0001718 GSMC
39121 GMACCM
36933 Yes GMACCM
38877 GMACCM
DBM17962 Deutsche Bank
38185 GMACCM
38297 GMACCM
Schedule I-8
SCHEDULE II
ENVIRONMENTAL POLICY MORTGAGE LOANS
CUT-OFF DATE ENVIRONMENTAL
LOAN NUMBER PROPERTY NAME BALANCE ($) INSURANCE LOAN LOAN SELLER
---------------------------------------------------------------------------------------------------------------------------
37803 Village Park Apartments 25,043,609 Yes GMACCM
03-12933 EQR Portfolio - Country Club Xxxxx Apartments 4,235,741 Yes MSMC
03-12935 EQR Portfolio - Spring Lake Manor 3,767,318 Yes MSMC
03-12934 EQR Portfolio - High River Apartments 3,637,754 Yes MSMC
DBM17909 Upland Square Shopping Center 7,879,313 Yes Deutsche Bank
38863 Victory- Kenner Marketplace 5,816,333 Yes GMACCM
DBM17901 Walgreens Belmont 2,157,974 Yes Deutsche Bank
00000 Xxxxxx Xxxxxxx 1,787,399 Yes GMACCM
Schedule II-1
SCHEDULE III
STRIP CALCULATION SCHEDULE
DISTRIBUTION DATE RATE
----------------- ----
June 2003...................................................................................................5.96317
July 2003...................................................................................................5.79949
August 2003.................................................................................................5.96326
September 2003..............................................................................................5.96333
October 2003................................................................................................5.79966
November 2003...............................................................................................5.96343
December 2003...............................................................................................5.79977
January 2004................................................................................................5.96353
February 2004...............................................................................................5.79746
March 2004..................................................................................................5.79766
April 2004..................................................................................................5.96919
May 2004....................................................................................................5.79720
June 2004...................................................................................................5.97078
July 2004...................................................................................................5.79618
August 2004.................................................................................................5.97091
September 2004..............................................................................................5.97099
October 2004................................................................................................5.79637
November 2004...............................................................................................5.97112
December 2004...............................................................................................5.79650
January 2005................................................................................................5.79655
February 2005...............................................................................................5.79662
March 2005..................................................................................................5.79693
April 2005..................................................................................................5.97173
May 2005....................................................................................................5.79653
June 2005...................................................................................................5.97214
July 2005...................................................................................................5.79666
August 2005.................................................................................................5.97228
September 2005..............................................................................................5.97236
October 2005................................................................................................5.79686
November 2005...............................................................................................5.97250
December 2005...............................................................................................5.79699
January 2006................................................................................................5.79704
February 2006...............................................................................................5.79712
March 2006..................................................................................................5.79779
April 2006..................................................................................................5.97282
May 2006....................................................................................................5.79728
June 2006...................................................................................................5.97296
July 2006...................................................................................................5.79742
August 2006.................................................................................................5.97311
September 2006..............................................................................................5.97319
October 2006................................................................................................5.79762
Schedule III-1
November 2006...............................................................................................5.97333
December 2006...............................................................................................5.79776
January 2007................................................................................................5.79781
February 2007...............................................................................................5.79789
March 2007..................................................................................................5.79862
April 2007..................................................................................................5.97366
May 2007....................................................................................................5.79806
June 2007...................................................................................................5.97381
July 2007...................................................................................................5.79820
August 2007.................................................................................................5.97396
September 2007..............................................................................................5.97404
October 2007................................................................................................5.79841
November 2007...............................................................................................5.97419
December 2007...............................................................................................5.79855
January 2008................................................................................................5.97434
February 2008...............................................................................................5.79971
March 2008..................................................................................................5.82051
April 2008..................................................................................................5.99332
May 2008....................................................................................................5.81811
June 2008...................................................................................................5.99243
July 2008...................................................................................................5.82937
August 2008.................................................................................................6.00476
September 2008..............................................................................................6.00485
October 2008................................................................................................5.82961
November 2008...............................................................................................6.00502
December 2008...............................................................................................5.82977
January 2009................................................................................................5.82984
February 2009...............................................................................................5.82993
March 2009..................................................................................................5.83078
April 2009..................................................................................................6.00541
May 2009....................................................................................................5.83013
June 2009...................................................................................................6.00558
July 2009...................................................................................................5.83029
August 2009.................................................................................................6.00575
September 2009..............................................................................................6.00585
October 2009................................................................................................5.83054
November 2009...............................................................................................6.00603
December 2009...............................................................................................5.83070
January 2010................................................................................................5.83077
February 2010...............................................................................................5.83086
March 2010..................................................................................................5.83876
April 2010..................................................................................................6.00675
May 2010....................................................................................................5.83280
Schedule III-2
SCHEDULE IV
BROKER STRIP SCHEDULE
SUB-SERVICING
LOAN NUMBER PROPERTY NAME CUT-OFF DATE FEE
----------------------- ---------------------------------------------- ------------------------- ---------------------
DBM18141 Empirian at North Ridge 32,186,812 0.02%
09-0001742 Southport Plaza Shopping Center 10,600,000 0.07%
09-0001737 Victory Crossing Shopping Center 4,900,000 0.05%
00-0000000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 4,340,000 0.05%
DBM17961 Sav-On Drugstore 2,851,926 0.05%
DBM17963 Washington & Xxxxxx 2,320,871 0.05%
09-0001719 Shoppes at Thomson 2,118,912 0.05%
09-0001744 Amberlake Apartments 2,075,000 0.05%
09-0001718 Roxboro Commons 1,964,356 0.05%
DBM17962 McDonald's Vermont Avenue 1,572,203 0.05%
Schedule IV-1
SCHEDULE V
SPECIFIED EARNOUT RESERVE LOANS
LOAN NUMBER PROPERTY NAME BALANCE ($) LOAN SELLER
-------------------- ------------------------------------------------------ -------------------- ---------------------
DBM18334 Renaissance at Columbia Gateway 39,500,000 Deutsche Bank
XXX00000 Xxxxx Xxxxxx Xxxxx 36,963,166 Deutsche Bank
09-0000000 Market Square 11,400,000 Archon Financial
DBM18401 International City Bank Building 11,100,000 Deutsche Bank
DBM18087 Renaissance Place Shopping Center 6,194,117 Deutsche Bank
Schedule V-1
SCHEDULE VI
INITIAL XXXXXXXX
FASHION CENTER B NOTE
OPERATING ADVISOR
Notice Address:
--------------
Teachers Insurance and Annuity Association of America
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Teachers Insurance and Annuity Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Vice President and Chief Counsel
Mortgage and Real Estate Law
Re: TIAA Appl. #AAA1763
TIAA Mtge. # 0005367
Facsimile: (000) 000-0000
Schedule VI-1
SCHEDULE VII
ADDITIONAL SERVICING FEE SCHEDULE
ADDITIONAL ADDITIONAL
CUT-OFF DATE SERVICING SERVICING
LOAN NUMBER PROPERTY NAME BALANCE ($) FEE LOAN FEE LOAN SELLER
------------------ ------------------------------------- --------------- --------------- ------------- ------------------
09-0001697 Norwest Xxxxx 33,358,286 Yes 0.05% GSMC
00-00000 Xxxx Xxxxxxx Xxxxxxxx Xxxxxx 10,388,531 Yes 0.05% MSMC
09-0001745 000 Xxxx 00xx Xxxxxx 9,000,000 Yes 0.05% GSMC
DBM17909 Upland Square Shopping Center 7,879,313 Yes 0.05% Deutsche Bank
09-0000000 Creekside Office Center 5,300,000 Yes 0.08% GSMC
09-0001707 Hawks Ridge Apartments 2,322,545 Yes 0.08% GSMC
