EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.,
DEPOSITOR,
GMAC COMMERCIAL MORTGAGE CORPORATION,
MASTER SERVICER,
GMAC COMMERCIAL MORTGAGE CORPORATION,
SPECIAL SERVICER,
AND
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
TRUSTEE
POOLING AND SERVICING AGREEMENT
DATED AS OF FEBRUARY 1, 2002
--------------------------------------------
$710,075,789
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C1
This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of February 1, 2002, among GMAC COMMERCIAL MORTGAGE SECURITIES,
INC., as Depositor, GMAC COMMERCIAL MORTGAGE CORPORATION, as Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION, as Special Servicer and XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, as Trustee.
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 $710,057,789.
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.
REMIC II INITIAL UNCERTIFICATED
DESIGNATION REMITTANCE RATE PRINCIPAL BALANCE
----------- --------------- -----------------
LA-1.............................. Variable (*) $144,484,000
LA-2-1............................ Variable (*) $76,410,000
LA-2-2............................ Variable (*) $329,400,000
LB................................ Variable (*) $29,290,000
LC................................ Variable (*) $9,763,000
LD................................ Variable (*) $15,977,000
LE................................ Variable (*) $8,875,000
LF................................ Variable (*) $12,426,000
LG................................ Variable (*) $10,651,000
LH................................ Variable (*) $8,876,000
LJ................................ Variable (*) $14,201,000
LK................................ Variable (*) $12,426,000
LL................................ Variable (*) $5,326,000
LM................................ Variable (*) $5,325,000
LN................................ Variable (*) $7,988,000
LO................................ Variable (*) $3,551,000
LP................................ Variable (*) $15,088,789
* Calculated in accordance with the definition of "REMIC II Remittance Rate."
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
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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.
CERTIFICATE INITIAL CLASS
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE
----------- ----------------- -----------------
Class X-1 N/A(1) N/A(2)
Class X-2 N/A(1) N/A(3)
Class A-1 5.785%(4) $144,484,000
Class A-2 6.278%(4) $405,810,000
Class B 6.453%(5) $29,290,000
Class C 6.551%(5) $9,763,000
Class D 6.659%(5) $15,977,000
Class E 6.787%(5) $8,875,000
Class F 6.944%(5) $12,426,000
Class G 6.971%(5) $10,651,000
Class H 7.2113%(6) $8,876,000
Class J 6.089%(5) $14,201,000
Class K 6.089%(5) $12,426,000
Class L 6.089%(5) $5,326,000
Class M 6.089%(5) $5,325,000
Class N 6.089%(5) $7,988,000
Class O 6.089%(5) $3,551,000
Class P 6.089%(5) $15,088,789
------------------
(1) The Pass-Through Rate for each of the Class X-1 and Class X-2
Certificates as described herein.
(2) The Class X-1 Certificates will have an original Notional Amount of
$710,057,789. The Class X-1 Certificates will not have a Certificate
Principal Balance and will not be entitled to any distribution of
certificate principal.
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(3) The Class X-2 Certificates will have an original Notional Amount of
$416,382,000. The Class X-2 Certificates will not have a Certificate
Principal Balance and will not be entitled to any distribution of
certificate principal.
(4) Initial Pass-Through Rate. The Pass-Through Rate is a fixed rate.
(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.
(6) Initial Pass-Through Rate. The Pass-Through Rate will be the Weighted
Average Net Mortgage Rate less 0.07%.
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 Mesa Grande Mortgage Loan also
secures a separate pari passu mortgage loan to the same Mortgagor (the
"Companion Loan"). As and to the extent provided herein, the Companion Loan will
be serviced and administered in accordance with this Agreement. Amounts
attributable to the Companion Loan will not be an asset of the Trust Fund, REMIC
I, REMIC II or REMIC III and will be beneficially owned by the Companion Lender.
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 and the Trustee agree as
follows:
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.
"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,
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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 Schedule": Exhibit L hereto.
"Additional Servicing Fee Mortgage Loans": The Mortgage Loans secured
by and any successor REO Mortgage Loans relating to those Mortgaged Properties
identified on the Additional Servicing Fee Schedule.
"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 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 and payable to the Master Servicer, the Special Servicer or
the Trustee, 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.
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"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"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, the Applicable State
Law shall be (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.
"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, the Companion
Loan or any REO Loans with a Stated Principal Balance as of the date of such
appraisal of greater than $1,000,000; 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, the Companion Loan or any REO Loans
with a Stated Principal Balance as of the date of such appraisal of $1,000,000
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 of such Required Appraisal Loan, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer or the Trustee, all
accrued and unpaid interest on such Required Appraisal Loan through the most
recent Due Date 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)
the Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by such Appraisal referred to in the parenthetical
above, 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 of the
related Required Appraisal Loan; provided that, upon receipt of an Appraisal,
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however, the Appraisal Reduction Amount for such Required Appraisal Loan will be
recalculated in accordance with this definition without regard to this sentence.
For purposes of calculating any Appraisal Reduction Amount with respect to the
Mesa Grande Mortgage Loan and the Companion Loan, the Appraised Value of the
related Mortgaged Property shall be allocated pro rata between the Mesa Grande
Mortgage Loan and the Companion Loan according to the respective Stated
Principal Balances of such loans.
"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.
"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) and for any subsequent Due Date therefor as of which such
Balloon Mortgage Loan (or in the case of the Companion Loan, the Mesa Grande
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 the related REO Property (or, in the case of the Companion
Loan, the REO Property relating to the Mesa Grande Mortgage Loan) 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 Certificate 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 Mortgage Loan Subaccount and the
Certificate 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 or the Trustee for such Distribution Date pursuant to
Section 4.03, (iii) the aggregate of any Compensating Interest Payments made by
the
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Master Servicer for such Distribution Date pursuant to Section 3.20 (excluding
any Compensating Interest Payments made with respect to the Companion Loan),
(iv) in the case of the Final Distribution Date, the aggregate of any
Liquidation Proceeds paid by the Master Servicer or the Depositor in connection
with a purchase of all the Mortgage Loans and any REO Properties (excluding any
such amounts allocable to the Companion Loan, pursuant to the Co-Lender
Agreement) 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(h) 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 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 Collection Account
pursuant to clauses (ii) - (v), inclusive, of Section 3.04(b) that are allocable
to the Companion Loan or from the Mortgage Loan Subaccount pursuant to clauses
(ii) - (xvii), inclusive, of Section 3.05(b), (iii) any amounts payable or
reimbursable to any Person from the Certificate Distribution Account pursuant to
clauses (ii) - (vii), inclusive, of Section 3.05(d), (iv) Prepayment Premiums
and Excess Interest, (v) any amounts deposited in the Mortgage Loan Subaccount
or the Certificate Distribution Account, as the case may be, in error, and (vi)
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(h). Notwithstanding the investment of funds held
in the Mortgage Loan Subaccount or the Certificate Distribution Account pursuant
to Section 3.06, for purposes of calculating the Available Certificate
Distribution Amount, the amounts so invested shall be deemed to remain on
deposit in such account.
"Available Companion Loan Distribution Amount": With respect to any
Master Servicer Remittance Date, an amount equal to (a) the sum of (i) the
aggregate amount relating to the Companion Loan on deposit in the Companion Loan
Subaccount as of the close of business on the related Determination Date and
(ii) in the event that the Companion Loan is included in a Securitization, the
aggregate of any Compensating Interest Payments made by the Master Servicer with
respect to the Companion Loan for such Distribution Date pursuant to Section
3.20, 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 paid
by the Mortgagor 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 Collection Account pursuant to clauses (ii) - (v), inclusive, of Section
3.04(b) that are allocable to the Companion Loan or from the Companion Loan
Subaccount pursuant to clauses (ii) - (xvii), inclusive, of Section 3.05(a), and
(iii) any amounts deposited in the Companion Loan Subaccount in error.
Notwithstanding the investment of funds held in the Companion Loan Subaccount
pursuant to Section 3.06, for purposes of calculating the Available Companion
Loan Distribution Amount, the amounts so invested shall be deemed to remain on
deposit in such account.
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"Balloon Mortgage Loan": Any Mortgage Loan or 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
Mortgage Loan or Companion Loan.
"Balloon Payment Interest Excess": With respect to any Balloon 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.
"Balloon Payment Interest Shortfall": With respect to any Balloon
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.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"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 or the
Companion 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 or the
Trustee.
"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.
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"Broker Strip Schedule": Schedule IX 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 is located, are
authorized or obligated by law or executive order to remain closed.
"Cash Collateral Account": With respect to any Mortgage Loan or
Companion Loan that has a Lock-Box Account, any account or accounts created
pursuant to the related Mortgage Loan or Companion 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 or for
the benefit of the Companion Lender, as the case may be. Any Cash Collateral
Account shall be 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 or
Companion 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 or Companion
Loan, the Master Servicer shall be permitted to make withdrawals therefrom
solely for deposit into the Collection Account (any withdrawal with respect to
the Companion Loan to be deposited in the Companion Loan Subaccount). To the
extent not inconsistent with the terms of the related Mortgage Loan or Companion
Loan, each such Cash Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage Loan
or the Companion 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 2002-C1, as executed by the Trustee and authenticated and
delivered hereunder by the Certificate Registrar.
"Certificate Distribution Account": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(e) in trust for
the Certificateholders, which shall be entitled "Xxxxx Fargo Bank Minnesota,
National Association, as Trustee, in trust for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
2002-C1." Any such account or accounts shall be an Eligible Account.
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"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 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 Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of (i) the Current Certificate 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
Certificate Principal Distribution Amount for the preceding Distribution Date,
over the aggregate distributions of principal made on the Principal Balance
Certificates in respect of such Certificate Principal Distribution Amount on the
preceding Distribution Date.
"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 either 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
11
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register as of the related Record Date.
"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 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-3
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-4
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-5
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-6
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-7
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-8
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-9
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-10
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-11
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-12
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
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"Class K Certificate": Any one of the Certificates with a "Class K"
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 L Certificate": Any one of the Certificates with a "Class L"
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 M Certificate": Any one of the Certificates with a "Class M"
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.
"Class N Certificate": Any one of the Certificates with a "Class N"
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 O Certificate": Any one of the Certificates with a "Class O"
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 P Certificate": Any one of the Certificates with a "Class P"
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 LA-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 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LA-1 outstanding from time to time.
"Class LA-2-1 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-2-1 Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-2-1 outstanding from time to
time.
"Class LA-2-2 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 LA-2-2 Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-2-2 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.
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"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 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 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LG outstanding from time to time.
"Class LH 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 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LH outstanding from time to time.
"Class LJ 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 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LJ outstanding from time to time.
"Class LK 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 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LK outstanding from time to time.
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"Class LL 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 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LL outstanding from time to time.
"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 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 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LN 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 LA-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-2-1 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-2 Pass-Through Rate.
"Class LA-2-2 Component Rate": With respect to any Distribution Date,
the amount, if any, equal to the sum of the Class LA-2-2 Component Class X-1
Strip Rate for such Distribution Date and the Class LA-2-2 Component Class X-2
Strip Rate for such Distribution Date.
"Class LA-2-2 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-2-2 Component Class X-2 Strip Rate and the Class A-2 Pass-Through Rate for
such Distribution Date.
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"Class LA-2-2 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 VIII
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.
"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 VIII
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.
"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 VIII
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 VIII
hereto or (y) the Weighted Average Net Mortgage
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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 VIII
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 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
Component Class X-2 Strip Rate and the Class F Pass-Through Rate for such
Distribution Date.
"Class LF 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 VIII
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.
"Class LG Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LG Component Class X-1 Strip Rate
for such Distribution Date and the Class LG Component Class X-2 Strip Rate for
such Distribution Date.
"Class LG 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
Component Class X-2 Strip Rate and the Class G Pass-Through Rate for such
Distribution Date.
"Class LG 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 VIII
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.
17
"Class LH 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 H Pass-Through Rate for such Distribution
Date.
"Class LJ 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 J Pass-Through Rate for such Distribution
Date.
"Class LK 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 K Pass-Through Rate for such Distribution
Date.
"Class LL 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 L Pass-Through Rate for such Distribution
Date.
"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.
"Class LN 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 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 Notional Amount": The Class X-1 Notional Amount or the Class X-2
Notional Amount, as applicable.
"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
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 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-20
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
18
"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-21
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-22 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-1,
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-2,
evidencing "regular interests" in REMIC III for purposes of the REMIC
Provisions.
"Class X Component": Any of the seventeen (17) components constituting
"regular interests" in REMIC III for purposes of the REMIC Provisions. Such
components are identified as Class XX-0, XX-0-0, XX-0-0, XX, XX, LD, LE, LF, LG,
LH, LJ, LK, LL, LM, LN, LO and LP 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-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-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
19
Regular Interests LA-1, LA-2-1, LA-2-2, LB, LC, LD, LE, LF, LG, LH, LJ, LK, LL,
LM, LN, LO and LP.
"Class X-2 Notional Amount": The aggregate notional principal amount on
which the Class X-2 Certificates accrue interest from time to time which, as of
any date of determination on or before the February 2009 Distribution Date, is
equal to the then aggregate Uncertificated Principal Balances of REMIC Regular
Interests LA-2-2, LB, LC, LD, LE, LF and LG, and as of any date of determination
after the February 2009 Distribution Date, is equal to zero.
"Class X-1 Pass-Through Rate": With respect to the Class X-1
Certificates,
(1) for the initial Distribution Date, 0.5383% per annum;
(2) for any Distribution Date thereafter, through and including the
February 2009 Distribution Date, (a) the per annum rate, expressed as a
percentage, obtained by dividing (i) the sum of (x) the products of (I) the
Uncertificated Principal Balance of each REMIC Regular II Interest LA-1, LA-2-1,
LH, LJ, LK, LL, LM, LN, LO and LP immediately prior to such Distribution Date
and (II) the related Component Rate for such Distribution Date and (y) the
products of (A) the Uncertificated Principal Balance of each REMIC Regular II
Interest LA-2-2, LB, LC, LD, LE, LF and LG immediately prior to such
Distribution Date and (B) the related Component Class X-1 Strip Rate by (ii) the
Class X-1 Notional Amount; and
(3) for any Distribution Date subsequent to the February 2009
Distribution Date, the per annum rate, expressed as a percentage, obtained by
dividing (i) the sum of the products of (x) the Uncertificated Principal Balance
of each Class of REMIC Regular II Interest immediately prior to such
Distribution Date and (y) the related Component Rate for such Distribution Date
by (ii) the Class X-1 Notional Amount;
"Class X-2 Pass-Through Rate": With respect to the Class X-2
Certificates,
(1) for the initial Distribution Date, 0.8914% per annum;
(2) for any Distribution Date thereafter, through and including the
February 2009 Distribution Date, the per annum rate, expressed as a percentage,
obtained by dividing (i) the sum of the products of (x) the Uncertificated
Principal Balance of each REMIC Regular II Interest LA-2-2, LB, LC, LD, LE, LF
and LG immediately prior to such Distribution Date and (y) the related Component
Class X-2 Strip Rate for such Distribution Date by (ii) the Class X-2 Notional
Amount; and
(3) for any Distribution Date subsequent to the February 2009
Distribution Date, 0% per annum.
"Closing Date": February 5, 2002.
"CMSA Financial File": The monthly, quarterly, semi-annual or annual
report, as the case may be, in the "CMSA Financial File" format substantially
containing the information
20
called for therein for each Mortgage Loan, as applicable, the form of which is
attached as Exhibit M.
"CMSA NOI Adjustment Worksheet": As defined in Section 4.02(b)(2).
"CMSA Operating Statement Report": As defined in Section 4.02(b)(1).
"CMSA Periodic Loan File": The monthly report in the "CMSA periodic
loan file" format containing such information for the Mortgage Loans as may be
reasonably requested by the Depositor, which report shall be substantially in
the form attached hereto as Exhibit J.
"CMSA Property File Report": The monthly report in the "CMSA property
file" format containing the information called for therein for each Mortgaged
Property, the form of which is attached hereto as Exhibit N, which for each
Distribution Date shall set forth certain information set forth therein as of
the end of the preceding calendar month.
"Code": The Internal Revenue Code of 1986, as amended.
"Co-Lender Agreement": The Co-Lender Agreement, dated as of February 1,
2002, by and among the Trustee, the Master Servicer and Xxxxxxx Xxxxx Mortgage
Company, as Companion Lender, relating to the Mesa Grande Mortgage Loan and the
Companion Loan.
"Collection 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 and the Companion Lender, 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.
"Collection Period": With respect to any Distribution Date and any
Mortgage Loan or the Companion 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
Companion Loan) and ending on and including the related Determination Date.
"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.
"Companion Lender": Xxxxxxx Xxxxx Mortgage Company, as holder of the
Companion Loan, or any successor or assignee thereof pursuant to the Co-Lender
Agreement.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Loan File": A copy of the Mortgage Note in the amount of
$14,500,000 pertaining to the Companion Loan and any of the Mortgage File for
the Mesa Grande Loan which relates to the Companion Loan.
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"Companion Loan Subaccount": The subaccount of the Collection Account
relating to the Companion Loan, which subaccount is created and maintained
pursuant to Section 3.04(a) and held on behalf of the Companion Lender. Amounts
in the Companion Loan Subaccount do not constitute assets of the Trust Fund or
REMIC I, REMIC II or REMIC III and will be beneficially owned by the Companion
Lender.
"Comparative Financial Status Report": As defined in Section 4.02(b).
"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 LA-2-2, LB,
LC, LD, LE, LF and LG Components, the Class LA-2-2 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 Class LE
Component Class X-1 Strip Rate, the Class LF Component Class X-1 Strip Rate or
the Class LG Component Class X-1 Strip Rate, as applicable.
"Component Class X-2 Strip Rate": As to each of the Class LA-2-2, LB,
LC, LD, LE, LF and LG Components, the Class LA-2-2 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 Class LE
Component Class X-2 Strip Rate, the Class LF Component Class X-2 Strip Rate or
the Class LG 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 P
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 for Certificate transfer purposes at
Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000, Attention: Corporate Trust Services (CMBS) - GMAC Commercial
Mortgage Securities, Inc. Series 2002-C1, and for all other purposes at 00000
Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Services (CMBS) - GMAC Commercial Mortgage Securities, Inc. Series 2002-C1.
22
"Corrected Mortgage Loan": Any Mortgage Loan or Companion Loan (and
each related Cross-Collateralized Mortgage 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 or Companion Loan
or a related Mortgaged Property becoming an REO Property).
"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 File": Any documents, other than documents required to be part
of the related Mortgage File, in the possession of the Master Servicer or
Special Servicer and relating to the origination and servicing of any Mortgage
Loan or the Companion Loan.
"Credit Lease": With respect to each Credit Lease Loan, the lease
agreement between the Mortgagor as lessor and the Tenant as lessee of the
related Mortgage Property.
"Credit Lease Loan": Each 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.
"Current Certificate 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;
(c) with respect to any Balloon Mortgage Loan (other than the Companion
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
23
principal thereof, in each case net of 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 (other than such proceeds or revenues allocable to
the Companion Loan pursuant to the Co-Lender Agreement) during the related
Collection Period that were identified and applied by the Master Servicer as
recoveries of principal of the related REO Loans (other than any such recoveries
allocable to the Companion Loan under the Co-Lender Agreement), in each case net
of 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 as is contemplated on
Exhibit H hereto, 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 Moody's 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 and the
Companion Loan File, 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.
"Cut-off Date": With respect to any Mortgage Loan or the Companion
Loan, the Due Date for such Mortgage Loan or Companion Loan in February 2002.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan or
the Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion 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 the
Companion Loan (or group of Cross-Collateralized Mortgage Loans) for any
specified period, the debt service coverage ratio calculated in accordance with
Exhibit I using the methodologies set forth in Exhibit F.
24
"Default Interest": With respect to any Mortgage Loan or the Companion
Loan (or related REO 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
Companion Loan (or REO Loan) accrued at the related Mortgage Rate.
"Defaulted Mortgage Loan": A Mortgage Loan or 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 or Companion Loan documents, but only if such
obligations or assets constitute "government securities" under the defeasance
rule of the REMIC Provisions.
"Defeasance Loan": Each of the Companion Loan and 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 or Companion Loan documents,
to obtain a release of any portion of the related Mortgaged Property from the
lien of the related Mortgages upon the pledge to the Trustee of Defeasance
Collateral.
"Defect": As defined in Section 2.02(e).
"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 or the Trustee pursuant to Section 4.03.
"Delinquency Advance Date": The Business Day preceding each
Distribution Date.
"Delinquent Loan Status Report": A report or reports setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the immediately preceding Determination Date, were (i) delinquent 30-59 days,
(ii) delinquent 60-89 days, (iii) delinquent 90 days or more, (iv) current but
specially serviced, (v) in foreclosure but as to which the related
25
Mortgaged Property had not become REO Property, or (vi) related to Mortgaged
Property which had become REO Property, together with such additional
information in respect of each such Mortgage Loan as is contemplated on Exhibit
H hereto.
"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 and Archon Financial, L.P. 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 5th
day of the month in which such Distribution Date occurs, or if such 5th 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 conducted by REMIC I, 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.
"Discount Rate": With respect to each Mortgage Loan 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
26
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,
of such Mortgage 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, 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 Date": The 15th day of any month, or if such 15th day is
not a Business Day, the Business Day immediately following, commencing in March
2002.
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": With respect to (i) any Mortgage Loan or the 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 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 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
27
Trustee or other financial institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), 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 Collection Account or the Certificate Distribution Account would not
result in the downgrade, qualification or withdrawal of the rating then assigned
to any Class of Certificates by such Rating Agency.
"Emergency Advance": Any Servicing Advance that must be made within
five Business Days by 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 or the Companion Lender.
"Environmental Assessment": A "Phase I assessment" conducted in
accordance with ASTM Standard E 1527-93 or any successor thereto published by
ASTM.
"Environmental Policy": Collectively, the Secured Creditor Impaired
Property Policies (Portfolio) issued by American International Specialty Lines
Insurance Company or Commerce & Industry Insurance Company, as the case may be,
with respect to the Mortgaged Properties listed on Schedule IV.
"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, 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.
"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 Payment 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(g)
in trust for the Certificateholders, which shall be entitled "Xxxxx Fargo Bank
Minnesota, National Association, as Trustee, in trust for the registered holders
of GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2002-C1 -- Excess Liquidation Proceeds Reserve Account."
Any such account shall be an Eligible Account.
28
"Excess Rate": With respect to each ARD Loan 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, Companion 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, by GMACCM pursuant to Section 4 of the
Supplemental Agreement, by the Majority Certificateholder of the Controlling
Class, the Special Servicer or the applicable Mortgage Loan Seller pursuant to
Section 3.18, or by the Master Servicer 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.
"Fixed Rate Mortgage Loan": A Mortgage Loan or Companion 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 or Companion Loan documents).
"FNMA": Federal National Mortgage Association or any successor.
"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.
"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 each Adjustable Rate Mortgage Loan (and
any successor REO Loan), the fixed number of percentage points set forth in the
Mortgage Loan
29
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.
"Guarantor": The guarantor under any Guaranty with respect to a 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.
"Historical Loan Modification Report": A report or reports setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the immediately preceding Determination Date, have been modified
pursuant to this Agreement (i) during the Collection Period ending on such
Determination Date and (ii) since the Cut-off Date, showing the original and the
revised terms thereof, together with such additional information in respect of
each such Mortgage Loan as is contemplated by Exhibit H hereto.
"Historical Loss Report": A report or reports setting forth, among
other things, as of the close of business on the immediately preceding
Determination Date, (i) the amount of Liquidation Proceeds and Liquidation
Expenses, both for the Collection Period ending on such Determination Date and
for all prior Collection Periods, and (ii) the amount of Realized Losses
occurring during such Collection Period and historically, set forth on a
Mortgage Loan-by-Mortgage Loan and REO Property-by-REO Property basis, together
with such additional information in respect of each Mortgage Loan and REO
Property as to which a Final Recovery Determination has been made as is
contemplated by Exhibit H hereto.
"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 or any Affiliate
thereof, and (iii) is not connected with the Depositor, the Master Servicer, any
Mortgage Loan Seller, the Special Servicer, the Trustee 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
30
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.
"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 or
the Trust Fund, delivered to the Trustee), so long as REMIC I does not receive
or derive any income from such Person and 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 each 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 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 $710,057,789.
"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 $416,382,000.
"Insurance Policy": With respect to any Mortgage Loan or the Companion
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 Companion 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
31
the 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).
"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 each Adjustable Rate
Mortgage Loan (and any successor REO Loan), 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 each
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(h) in trust for
the Certificateholders, which shall be entitled "Xxxxx Fargo Bank Minnesota,
National Association, as Trustee, in trust for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
2002-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 Collection Account, the Certificate
Distribution Account, any Lock-Box Account, any Cash Collateral Account, the
Interest Reserve Account or any REO Account.
"Investor Certification": A certification in the form of Exhibit K
hereto.
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the REMIC Provisions.
"Late Collections": With respect to any Mortgage Loan or the Companion
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 or Companion Loan
(without regard to any acceleration of amounts due thereunder by reason of
default) on a Due Date in a previous Collection Period 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 or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due
32
Date in a previous Collection Period and not previously recovered. The term
"Late Collections" shall specifically exclude Penalty Charges.
"Late Due Date Mortgage Loan": Any Mortgage Loan (or successor REO
Loan) 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 the Companion
Loan, any of the following events: (i) such Mortgage Loan or Companion Loan is
paid in full; (ii) a Final Recovery Determination is made with respect to such
Mortgage Loan or Companion 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, the Special Servicer or the
applicable Mortgage Loan Seller pursuant to Section 3.18; or (vi) such Mortgage
Loan is purchased by the Master Servicer or the Depositor pursuant to Section
9.01. 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
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 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"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,
the Special Servicer or the applicable Mortgage Loan Seller pursuant to Section
3.18 or by the Master Servicer 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
Mortgaged 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 security for a defaulted
Mortgage Loan or Companion 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, the Special Servicer 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
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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
Supplemental Agreement; or (vii) the purchase of a Mortgage Loan or REO Property
by the Master Servicer or the Depositor pursuant to Section 9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan or the
Companion 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 or Companion Loan, and the denominator of which is the Appraised
Value of the related Mortgaged Property (or, in the case of the Companion Loan,
the allocable portion of such Appraised Value) as determined by an Appraisal
thereof. For purposes of calculating any Loan-to-Value Ratio with respect to the
Mesa Grande Mortgage Loan and the Companion Loan, the Appraised Value of the
related Mortgaged Property shall be allocated pro rata between the Mesa Grande
Mortgage Loan and the Companion Loan according to the respective Stated
Principal Balances of such loans.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to any documents relating to a Mortgage
Loan or Companion Loan to receive revenues therefrom. Any Lock-Box Account shall
be 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 or Companion 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 or the
Companion Loan, the lock-box agreement, if any, between the originator of such
Mortgage Loan or Companion 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.
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"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 in each case determined without giving effect to the last sentence of
the definition of "Voting Rights."
"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, Companion Loan and REO Loan, 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,
Companion Loan and REO Loan, 0.02% per annum.
"Material Document Defect": As defined in Section 2.03(a).
"Maturity Date": With respect to any Mortgage Loan or the 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 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 Companion Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.21 or (iv) in the case
of an ARD Loan, the Anticipated Repayment Date for such Mortgage Loan.
"Mesa Grande Loan Group": Collectively, the Mesa Grande Mortgage Loan
and the Companion Loan.
"Mesa Grande Mortgage Loan": The Mortgage Loan identified as Loan
Number 09-0001530 on the Mortgage Loan Schedule.
"Modified Mortgage Loan": Any Mortgage Loan or 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 Companion Loan);
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(B) except as expressly contemplated by the related Mortgage, 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
Companion Loan or reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment": With respect to any Mortgage Loan or the Companion
Loan, the scheduled monthly payment of principal and/or interest on such
Mortgage Loan or 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 Investor Services, 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 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 Investor
Services, Inc. herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan or the Companion 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, subject to Section
2.01(b), collectively the following documents:
(1) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without recourse, in blank
or to the order of the Trustee in the following form: "Pay to the order of Xxxxx
Fargo Bank Minnesota, National Association, as trustee for the registered
holders of GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2002-C1, without recourse";
(2) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording indicated thereon;
(3) the original or a copy of the assignment of the Mortgage, in
recordable form, executed by the most recent assignee of record thereof prior to
the Trustee, or if none by the originator, either in blank or in favor of the
Trustee (in such capacity);
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(4) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and, if applicable, the originals
or copies of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any, in each case with evidence of
recording thereon;
(5) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in recordable form, executed by
the most recent assignee of record thereof prior to the Trustee, or, if none, by
the originator, either in blank or in favor of the Trustee (in such capacity),
which assignment may be included as part of the corresponding assignment of
Mortgage, referred to in clause (3) above;
(6) an original or a copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if applicable, the originals
or copies of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any;
(7) an original assignment of any related Security Agreement (if such
item is a document separate from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the originator,
either in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage referred to
in clause (3) above;
(8) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon, where
appropriate, in those 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
37
possession of the Mortgage Loan Seller, a UCC financing statement executed by
the most recent assignee of record prior to the Trustee or, if none, by the
originator, evidencing the transfer of such security interest, either in blank
or in favor of the Trustee;
(12) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if the Mortgage,
Mortgage Note or other document or instrument referred to above was not signed
by the Mortgagor;
(13) the related Ground Lease or a copy thereof, if any;
(14) if the Mortgage Loan is a Credit Lease Loan, an original of the
credit lease enhancement insurance policy, if any, obtained with respect to such
Mortgage Loan and an original of the residual value insurance policy, if any,
obtained with respect to such Mortgage Loan;
(15) the original or a copy of any lockbox agreement or deposit account
or similar agreement;
(16) the original or a copy of any intercreditor or co-lender agreement
with respect to the Mortgage Loan;
(17) the original or a copy of any Environmental Policy;
(18) the original or a copy of any letter of credit; and
(19) any additional documents required to be added to the Mortgage File
pursuant to this Agreement;
provided that, whenever the term "Mortgage File" is used to refer to documents
actually received by the 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.
"Mortgage Loan": Each of the mortgage loans or interests therein
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). 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, the
term "Mortgage Loan" does not include the Companion Loan.
"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:
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(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
each ARD Loan, the Anticipated Repayment Date and (C) Stated Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of an Adjustable Rate Mortgage Loan, the (A) Index,
(B) Gross Margin, (C) first Mortgage Rate adjustment date following the Cut-off
Date and the frequency of Mortgage Rate adjustments, and (D) maximum and minimum
lifetime Mortgage Rate;
(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; and
(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 and (D) has a letter of credit as part of the related Mortgage File.
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": German American Capital Corporation, Xxxxxxx
Xxxxx Mortgage Company and any other Person (other than the Depositor) that is a
party to a Mortgage Loan Purchase Agreement.
"Mortgage Loan Subaccount": The subaccount of the Collection Account
relating to the Mortgage Loans, which subaccount is created and maintained
pursuant to Section 3.04(a) and held by the Master Servicer on behalf of the
Trustee on behalf of the Certificateholders.
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"Mortgage Note": The original executed note evidencing the indebtedness
of a Mortgagor under a Mortgage Loan or Companion 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).
The term "Mortgage Pool" shall specifically exclude the Companion Loan.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or the
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 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 the 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 Companion Loan had remained outstanding.
"Mortgaged Property": Individually and collectively, as the context may
require, the real property interest subject to the lien of a Mortgage and
constituting collateral for a Mortgage Loan or Companion 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.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date and the Mortgage Loans, 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 Certificate 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 or the Companion Loan 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 or the
40
Companion Loan held in such account in accordance with Section 3.06, exceeds the
aggregate of all interest and other income realized during such Collection
Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan, the 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, 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 Exhibit
G using the methodologies set forth in Exhibit F.
"Nonrecoverable Advance": Any Nonrecoverable Delinquency Advance or
Nonrecoverable Servicing 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 or, if applicable, the Trustee,
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).
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan, the Companion Loan or
any REO Property which, in the judgment of the Master Servicer, the Special
Servicer or, if applicable, the Trustee, 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, Companion Loan or REO Property which shall be evidenced by an Officers'
Certificate as provided by Section 3.11(h).
41
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class X-2, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P or Residual Certificate.
"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 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 and Class A-2 Certificates, the fixed rate per annum
specified for such Class in the Preliminary Statement;
(4) the Class B, Class C, Class D, Class E, Class F, Class G, Class J,
Class K, Class L, Class M, Class N, Class O and Class P 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; and
(4) the Class H Certificates, for any Distribution Date, the Weighted
Average Net Mortgage Rate for such Distribution Date less 0.07%.
"Payment Adjustment Date": With respect to each Adjustable Rate
Mortgage Loan, 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 is
specified in the Mortgage Loan Schedule, and successive
42
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 Certificate
Distribution Amount for any Distribution Date, as set forth in Section 4.01(c)
hereof.
"Penalty Charges": With respect to any Mortgage Loan or the 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;
43
(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 by the 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 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
44
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).
"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 each 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 or
Companion Loan (other than a Late Due Date 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
or Companion 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 or
Companion Loan (other than a Late Due Date 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 or Companion 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 the date as of which such Principal Prepayment was applied to such Mortgage
Loan or Companion 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).
45
"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 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 any Distribution Date
and each of Class A-1, 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 Certificate Principal Distribution Amount allocable to such Class
of Certificates for such Distribution Date and the denominator of which is the
Certificate 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 Prepayment": Any payment of principal made by the Mortgagor
on a Mortgage Loan or 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.
"Privileged Person": The Depositor, the Master Servicer, the Special
Servicer, the Trustee, a Rating Agency, a designee of the Depositor, the
Companion Lender 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 June 26, 2001, as supplemented by
the Prospectus Supplement dated January 25, 2002, 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 outstanding principal balance of such Mortgage Loan as of the date of
purchase, together with (a) 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, (b) all related
unreimbursed Servicing Advances, (c) all accrued and unpaid Advance Interest in
respect of related Advances, and (d) 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 Supplemental
Agreement (i) all expenses incurred or to be incurred by the Master Servicer
(unless such Mortgage Loan Seller is acting as Master 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 (c) above) in respect of
related Advances and Additional
46
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 1% Liquidation
Fee. 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.
"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
an 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; and (x) 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; provided that no Qualifying
Substitute Mortgage Loan may have a Maturity Date after the date three years
prior to the Rated Final Distribution Date, and provided, further, that no such
Qualifying Substitute Mortgage Loan shall be substituted for a Deleted Mortgage
Loan unless
47
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.
"Rated Final Distribution Date": The Distribution Date in November
2039.
"Rating Agency": Each of Moody's and Standard & Poor's.
"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 then rated by such Rating Agency. For all purposes of this
Agreement, the placement by a Rating Agency of any Class of Certificates on
"negative credit watch" shall constitute a qualification of such Rating Agency's
rating of such Certificates.
"Realized Loss": With respect to each defaulted Mortgage Loan or
Companion 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, Companion 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, Companion Loan or REO Loan, as the case may be (without
taking into account the amounts described in subclause (iv) of this sentence),
at the related Mortgage Rate to but not including the Due Date in the Collection
Period in which the Final Recovery Determination was made, plus (iii) any
related unreimbursed Servicing Advances 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,
Companion 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 paid therefrom).
With respect to any Mortgage Loan or Companion 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 or Companion 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.
With respect to any Mortgage Loan or Companion Loan as to which the
Mortgage Rate thereon has been permanently reduced for any period in connection
with a bankruptcy or
48
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan or Companion 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 dated January 25, 2002 under the column heading "Related Group."
"Release Date": As defined in Section 3.08(c).
"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 and (b) payments of principal, interest and
other amounts due and payable on the Mortgage Loans on or before the Cut-off
Date), 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
Interest) as from time to time are deposited in the Certificate Distribution
Account, the Mortgage Loan Subaccount and the REO Account (if established),
excluding any amounts deposited therein that are allocable to the Companion Loan
pursuant to this Agreement and the Co-Lender Agreement; 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 the
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
49
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 such 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 seventeen (17) 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 LA-1, LA-2-1, LA-2-2, LB, LC, LD, LE, LF, LG, LH, LJ,
LK, LL, LM, LN, LO and LP. 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; provided, that REMIC II
Regular Interests LA-2-1 and LA-2-2 shall both correspond to the Class A-2
Certificates:
50
REMIC II CLASS OF PRINCIPAL CLASS X
REGULAR INTEREST BALANCE CERTIFICATES COMPONENT
---------------- -------------------- ---------
Class LA-1 Class A-1 Class LA-1 Component(1)
Class LA-2-1 Class A-2 Class LA-2-1 Component(1)
Class LA-2-2 Class A-2 Class LA-2-2 Component(1)(2)
Class LB Class B Class LB Component(1)(2)
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 Class F Class LF Component(1)(2)
Class LG Class G Class LG Component(1)(2)
Class LH Class H Class LH Component(1)
Class LJ Class J Class LJ Component(1)
Class LK Class K Class LK Component(1)
Class LL Class L Class LL Component(1)
Class LM Class M Class LM Component(1)
Class LN Class N Class LN Component(1)
Class LO Class O Class LO Component(1)
Class LP Class P Class LP Component(1)
----------------------
(1) Applicable to the Class X-1 Certificates.
(2) Applicable to the Class X-2 Certificates.
"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.
51
"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 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 and, in the case of REO Property related to the
Companion Loan, for the Companion Lender, 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 2002-C1 and the related Companion Lender, if any".
52
"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 or Companion 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 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 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 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 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 or the Trustee in respect of the
predecessor Mortgage Loan or 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 or the Trustee, 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, if applicable, the Companion Lender 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 or the Companion Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"REO Status Report": A report or reports substantially in the form of
Exhibit H attached hereto setting forth, among other things, with respect to
each REO Property that was included in the Trust Fund as of the close of
business on the immediately preceding Determination Date, (i) the Acquisition
Date of such REO Property, (ii) the amount of income collected with respect to
such REO Property (net of related expenses) and other amounts, if any, received
on such REO Property during the Collection Period ending on such Determination
Date and (iii) the value of the REO Property based on the most recent Appraisal
or other valuation thereof available to the Master Servicer as of such date of
determination (including any valuation prepared internally by the Special
Servicer).
53
"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 the Companion
Loan, 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,
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, 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 customarily performing functions
similar to those performed by any of the above designated officers to whom a
particular matter is referred by the Trustee because of such officer's knowledge
of and familiarity with the particular subject.
"Revised Rate": With respect to each 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.
"Securities Act": The Securities Act of 1933, as amended.
"Securitization": An issuance of securities representing beneficial
interests in one or more mortgage loans.
"Security Agreement": With respect to any Mortgage Loan or the
Companion 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 a security interest in the personal property
constituting security for repayment of such Mortgage Loan or Companion Loan.
"Senior Certificate": Any Class X, Class A-1 or Class A-2 Certificate.
54
"Servicer Reports": The Delinquent Loan Status Report, the Historical
Loan Modification Report, the Historical Loss Report, the REO Status Report, the
Servicer Watch List, the NOI Adjustment Worksheet, the Comparative Financial
Status Report, the Operating Statement Analysis and the Current Ratings Report.
"Servicer Watch List": A report prepared by the Master Servicer
containing the information described in Exhibit P attached hereto, setting
forth, among other things, a description of any Mortgage Loan that, as of the
Determination Date immediately preceding the preparation of such report, is in
jeopardy of becoming a Specially Serviced Mortgage Loan.
"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 Special Servicer or,
if applicable, the Trustee in connection with the servicing and administering of
(a) a Mortgage Loan or Companion 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,
the 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.
All Emergency Advances made by the Special Servicer hereunder shall be
considered "Servicing Advances" for the purposes hereof.
"Servicing Fee Rate": With respect to any Mortgage Loan (including any
REO Loan) and the Companion Loan, the percentage rate per annum set forth with
respect to such Mortgage Loan (including any REO Loan) on the Mortgage Loan
Schedule. With respect to the Companion Loan (including any related REO Loan),
the "Servicing Fee Rate" shall be 0.03% per annum.
"Servicing Fees": With respect to any Distribution Date and each
Mortgage Loan, the Companion Loan and each REO Loan, the fee payable to the
Master Servicer pursuant to Section 3.11(a).
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File), in the possession of the Master Servicer or
the Special Servicer and relating to the origination and servicing of any
Mortgage Loan or the Companion Loan.
"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 and the Companion Loan, 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).
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"Servicing Transfer Event": With respect to any Mortgage Loan or the
Companion Loan, the occurrence of any of the events described in clauses (1)
through (8) of the definition of "Specially Serviced Mortgage Loan".
"Special Servicer": GMACCM, or any successor special servicer appointed
as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan (including any Mortgage Loan and/or the 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 any Mortgage Loan and/or the Companion Loan) and REO
Loan, 0.250% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan or Companion Loan
(and each related Cross-Collateralized Mortgage Loan) as to which any of the
following events has occurred:
(1) the related Mortgagor has failed to make when due any Balloon
Payment, which failure has continued unremedied for 30 days or, if the Master
Servicer has received evidence that the related Mortgagor has obtained a firm
commitment to refinance, which has continued unremedied for more than 60 days;
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 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,
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 or the Companion 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 or the Companion 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
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(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;
provided that a Mortgage Loan or the Companion Loan, as the case may be, will
cease to be a Specially Serviced Mortgage Loan, when a Liquidation Event has
occurred in respect of such Mortgage Loan or Companion 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 or the Companion
Loan to be characterized as a Specially Serviced Mortgage Loan (and provided
that no other Servicing Transfer Event then exists with respect to the
particular Mortgage Loan, the Companion 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 or Companion 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 Debt Service Reserve Loans": The Mortgage Loans identified
on Schedule V.
"Specified Earnout Reserve Loans": The Mortgage Loans identified on
Schedule VII.
"Specified Letter of Credit Loans": The Mortgage Loans identified on
Schedule VI.
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"Specified Trigger Event Loan": The Mortgage Loans identified on
Schedule X.
"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 which
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.
"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 the
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
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.
"Stated Principal Balance": With respect to any Mortgage Loan or the
Companion Loan (and any related REO Loan), the Cut-off Date Principal Balance of
such Mortgage Loan or 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 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 or the Companion Lender on such Distribution Date, and (ii)
the principal portion of any Realized Loss incurred in respect of such Mortgage
Loan or 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, the Companion Loan or any REO Property, then the "Stated
Principal Balance" of such Mortgage Loan or 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 Xxxxx 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, Class O,
Class P or Residual Certificate.
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"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer and any Sub-Servicer relating to servicing and
administration of Mortgage Loans as provided in Section 3.23.
"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": The Supplemental Agreement dated as of
January 25, 2002 between GMACCM and German American Capital Corporation, as
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 each 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": Xxxxx Fargo Bank Minnesota, National Association, in its
capacity as Trustee under this Agreement, its successor in interest, or any
successor trustee appointed as herein provided.
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"Trustee Fee": With respect to any Distribution Date and each Mortgage
Loan 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.
"Trustee Fee Rate": 0.0032%. The Trustee Fee Rate is included in the
Servicing Fee Rate set forth for each Mortgage Loan 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
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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
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 Deutsche Banc Alex. Xxxxx Inc. and Xxxxxxx,
Sachs & Co.
"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. Appraisal Reduction Amounts will be allocated in
reduction of the respective Class Principal Balances of the Class P, Class O,
Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C, Class B and Class A Certificates (pro rata between the Class
A-1 and Class A-2 Certificates), in that order, for purposes of calculating
Voting Rights in the same manner as Realized Losses and Additional Trust Fund
Expenses are allocated in accordance with Section 4.04.
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"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. The term "Withheld
Amount" shall also include, with respect to the Distribution Date in March 2002,
the initial deposit made by the Depositor to the Interest Reserve Account
pursuant to Section 3.04(h).
"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
in Respect of the Companion Loan.
(a) All amounts collected in respect of any group of related
Cross-Collateralized Mortgage Loans and in respect of the Mesa Grande Loan Group
in the form of payments from Mortgagors, Insurance Proceeds and Liquidation
Proceeds, shall be applied by the Master Servicer among such Mortgage Loans and,
in the case of the Mesa Grande Loan Group, between the Mesa Grande Mortgage Loan
and the Companion Loan, in accordance with the express provisions of the related
loan documents (including, with respect to the Mesa Grande Loan Group, the
Co-Lender Agreement) 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 or the Companion Loan. All amounts collected in respect
of any Mortgage Loan (whether or not such Mortgage Loan is a
Cross-Collateralized Mortgage Loan) or the Companion 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; second, as a
recovery of accrued and unpaid interest at the related Mortgage Rate on such
Mortgage Loan or 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 or
Companion Loan then due and owing, including,
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without limitation, by reason of acceleration of the Mortgage Loan or Companion
Loan following a default thereunder (or, if a Liquidation Event has occurred in
respect of such Mortgage Loan or 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 Companion
Loan; seventh, as a recovery of any Penalty Charges then due and owing under
such Mortgage Loan or Companion Loan; eighth, as a recovery of any other amounts
(other than Excess Interest) then due and owing under such Mortgage Loan or
Companion Loan; ninth, as a recovery of any remaining principal of such Mortgage
Loan or 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; 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, the Companion Loan or any REO Property pursuant to paragraphs (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 the Supplemental Agreement 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 and interest 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.
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(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, and the Companion Lender, pursuant to the
Co-Lender 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 (or in the case of
the Companion Lender, the Companion Loan 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, 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) 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
K. 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
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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 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.
(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
expense of the respective Mortgage Loan Seller, 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.
(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. If the Sub-Servicer
shall hold any original documents and records delivered to it pursuant to this
clause (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 the Supplemental Agreement, as in full force and
effect, without amendment or modification, on the Closing Date.
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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 Schedule II, of
the documents specified in clauses (1), (2), (9) and (12) of the definition of
"Mortgage File" of a fully executed original counterpart of each Mortgage Loan
Purchase 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. The Trustee further acknowledges receipt
of the Companion Loan File and declares that it, or the Custodian on its behalf
holds and will hold such documents and the other documents delivered or caused
to be delivered to it constituting the Companion Loan File, and that it holds it
for the exclusive use and benefit of Companion Lender. 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
Schedule II, 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.
(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 Schedule III 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), (i) all
documents specified in clauses (1) through (5), (9), (11), (12), (13) and (18)
(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. 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
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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. At any time after the date which is two years after the
Closing Date, the Depositor, the Master Servicer, the Special Servicer and any
Certificateholder may receive, upon request, an updated exception report (which
may be in electronic format).
(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 Schedule III to each of the Depositor,
the Master Servicer, the Special Servicer, the Majority Certificateholder of the
Controlling Class and each Mortgage Loan Seller 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) and (18) (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 clauses (3) and, insofar as an
unrecorded original thereof had been delivered or caused to be delivered by the
related Mortgage Loan Seller, (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.
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", absent actual knowledge to the contrary or copies of UCC Financing
Statements delivered to the Trustee as part of the Mortgage File indicating
otherwise, the Trustee may assume, for the purposes of certification and
recordation delivered in Section 2.02(b), that the related Mortgage File should
include one UCC Financing Statement filed in the office designated for the
filing in the state of incorporation for the Mortgagor of the Mortgage on the
related Mortgaged Property. 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.
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(d) 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 and the related Mortgage Loan Seller. 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.
Section 2.03. Mortgage Loan Sellers' Repurchase 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
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 the 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 and the Rating Agencies and
the related Mortgage Loan Seller (and GMACCM, in the case of such a Defect,
Breach or event under the Supplemental Agreement) and shall request that the
related Mortgage Loan Seller (or GMACCM, in the case of such a Defect, Breach or
event under the Supplemental Agreement), within the time period provided for in
the related Mortgage Loan Purchase Agreement or the 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 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 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. 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
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Breach or Defect, both (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, and (B) the Loan-to-Value Ratio for all of the Mortgaged Properties then
remaining subject to the related Mortgage is not greater than 10% of 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 (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
paragraph (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 Supplemental Agreement) to deliver to the
Trustee for such Qualifying Substitute 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".
No substitution may be made in any calendar month after the Determination Date
for such month. 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.
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In any month in which the related Mortgage Loan Seller (or GMACCM under
the 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 Distribution 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
Officers' 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. If the affected Mortgage Loan is to be repurchased, the Trustee
shall designate the Mortgage Loan Subaccount as the account to which funds in
the amount of the Purchase Price are to be wired.
(c) Section 6 of the related Mortgage Loan Purchase Agreement and
Section 4 of the Supplemental Agreement provides the sole remedy available to
the Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting 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 such
Mortgage Loan Purchase Agreement or Section 2(a) of the Supplemental Agreement
or any of the circumstances described in Section 6(b) of such Mortgage Loan
Purchase Agreement or in Section 4(b) of the Supplemental Agreement.
(d) The Trustee 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 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
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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(b)(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(b)(xi) out of
general collections on the Mortgage Loans on deposit in the Mortgage Loan
Subaccount.
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.
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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 (i) the Mortgage Loans (excluding the Mesa Grande Loan Group)
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 (as determined by the Master Servicer or the Special
Servicer, as the case may be, in its good faith and reasonable judgment) and
(ii) the Mesa Grande Loan Group pursuant to this Agreement and the Co-Lender
Agreement on behalf of the Certificateholders and the Companion Lender in the
best interests of and for the benefit of the Certificateholders and the
Companion Lender as a collective whole (as determined by the Master Servicer or
the Special Servicer, as the case may be, in its good faith and reasonable
judgment), in the case of both (i) and (ii), in accordance with applicable law,
the terms of this Agreement and the terms of the respective Mortgage Loans
and/or the Companion Loan and, to the extent consistent with the foregoing,
further as follows: (x) 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; (y) with a view to the timely collection of
all scheduled payments of principal and interest under the Mortgage Loans and
the Companion Loan or, if a Mortgage Loan or the Companion 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
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collection of the delinquent payments, the maximization of the recovery on such
Mortgage Loan to the Certificateholders (as a collective whole) or the
maximization of the recovery on such Companion Loan to the Companion Lender, as
the case may be, on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders or the
Companion Lender to be performed at the related Net Mortgage Rate); and (z)
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 the Companion Loan 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 make (or 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 Supplemental Agreement (the conditions set forth in the immediately
foregoing clauses (x), (y) and (z), 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 and, pursuant
to the Co-Lender Agreement is authorized by the Companion Lender, to exercise
efforts consistent with the foregoing standard and to execute and deliver, on
behalf of the Certificateholders, the Trustee, the Companion Lender 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 or the Companion Loan 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, the Companion Loan 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 or Companion 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 or Companion Loan. Subject to
Section 3.10, the Trustee shall furnish, or cause to be furnished, and pursuant
to the Co-Lender Agreement, the Companion Lender has agreed to 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 and the
Companion Lender 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 misuse of, any such power of attorney by the Master Servicer or
the Special Servicer, as the case may be; and further provided that neither the
Master Servicer nor the Special Servicer, without the written consent of the
Trustee or the Companion Lender, shall initiate any action in the name of the
Trustee or the Companion
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Lender, as applicable, without indicating its representative capacity or cause
the Trustee or the Companion Lender to be registered to do business in any
state.
(b) Subject to Section 3.01(a), 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 the Companion Lender and, unless the same Person acts in both
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. Subject to Section
3.01(a), each of the Master Servicer and the Special Servicer shall service and
administer the Mesa Grande Loan Group as a single mortgage loan as and when it
deems such treatment necessary and appropriate.
(e) The Companion Loan shall be serviced and administered by the Master
Servicer and the Special Servicer pursuant to the terms of this Agreement for so
long as the Mesa Grande Mortgage Loan is included in the Trust Fund. If the Mesa
Grande Mortgage Loan is removed from the Trust Fund or this Agreement is
terminated, the servicing and administration of the Mesa Grande Mortgage Loan
and the Companion Loan shall be retained or transferred by the Master Servicer
or Special Servicer as specified in the Co-Lender Agreement.
Section 3.02. Collection of Mortgage 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 the
Companion Loan, and shall, to the extent such procedures shall be consistent
with this Agreement, and with respect to the Mesa Grande Loan Group, the
Co-Lender Agreement, and the terms and conditions of the Mortgage Loans and the
Companion Loan, 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 or the Companion
Loan. 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 the Companion Loan (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.
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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 shall
be deposited and retained. Servicing Accounts shall be Eligible Accounts.
Withdrawals of amounts so collected in respect of any Mortgage Loan or the
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 Trustee, the Master Servicer and
the Special 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 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 other
than Specially Serviced Mortgage Loans and with respect to the Companion Loan if
it is not a Specially Serviced Mortgage Loan) and the Special Servicer (with
respect to the Specially Serviced Mortgage 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 which require the related Mortgagor to escrow for the payment of
such items, and for the Companion Loan if the Companion Loan requires the
related Mortgagor to escrow for 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 the Companion Loan. To the extent that a Mortgage Loan or the 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 related Mortgaged Property all such
funds as are necessary for the purpose
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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, and 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 the
Companion Loan, notwithstanding that the terms of such Mortgage Loans or the
Companion Loan 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 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. Collection Account, Distribution Account and Interest
Reserve Account.
(a) The Master Servicer shall establish and maintain a Collection
Account that shall be held in the name of the Master Servicer on behalf of the
Certificateholders and the Companion Lender and shall include the Mortgage Loan
Subaccount and, with respect to the Companion Loan, the Companion Loan
Subaccount. The Master Servicer shall deposit or cause to be deposited into the
Collection 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 and the Companion Loan 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 and the Companion Loan;
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(ii) all payments on account of interest (including, without
limitation, Default Interest and Excess Interest) on the Mortgage Loans and the
Companion 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 pursuant to Section 3.16(c) and amounts
of interest and investment income earned in respect of amounts relating to the
Trust Fund or the Companion Loan 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, the
Companion Loan documents or applicable law;
(iv) all Insurance Proceeds and Liquidation Proceeds received in
respect of any Mortgage Loan, the Companion Loan or any REO Property (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 Certificate 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 or the Companion Loan
held in the Collection 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.
The foregoing requirements for deposit in the Collection 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 Collection Account. If the Master Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Collection 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 Collection 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 or Companion Loan which is not an
REO Loan, the Special
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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
Collection 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 Collection
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 Collection 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 Collection Account as of the Closing Date and
of the new location of the Collection Account prior to any change thereof.
(b) On each Master Servicer Remittance Date, the Master Servicer shall,
with respect to each Mortgage Loan and the Companion Loan and prior to making
the allocations between the Mortgage Loan Subaccount and the Companion Loan
Subaccount, if any, pursuant to Section 3.04(c):
(i) withdraw from the Collection Account any sums deposited
therein in error and pay such sums to the Persons entitled thereto;
(ii) 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 and the Companion Loan held in the
Collection 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 Collection Account, any Lock-Box Account and Cash Collateral
Account for any Collection Period), (B) Prepayment Interest Excesses and Balloon
Payment Interest Excesses received on the Mortgage Loans and the Companion Loan
(C) (1) Penalty Charges received on each Mortgage Loan (other than the Mesa
Grande Loan Group) so long as such Mortgage Loan is not a Specially Serviced
Mortgage Loan (but only to the extent not otherwise allocable to cover Advance
Interest in respect of such Mortgage Loan) and (2) all Penalty Charges received
on the Mesa Grande Mortgage Loan (or allocated thereto under the Co-Lender
Agreement), so long as such Mesa Grande Mortgage Loan is not a Specially
Serviced Mortgage Loan (but only to the extent not otherwise allocable to cover
Advance Interest in respect of the Mesa Grande Mortgage Loan);
(iii) pay the Special Servicer, as additional servicing
compensation, (A) all Penalty Charges received on any Specially Serviced
Mortgage Loan other than the Mesa Grande Mortgage Loan or the Companion Loan
(but only to the extent not otherwise allocable to pay Advance Interest in
respect of such Specially Serviced Mortgage Loan) and (B) all Penalty Charges
received on the Mesa Grande Mortgage Loan (or allocated thereto pursuant to the
Co-
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Lender Agreement) at any time the Mesa Grande Mortgage Loan is a Specially
Serviced Mortgage Loan (but only to the extent not otherwise allocable to pay
Advance Interest in respect of the Mesa Grande Mortgage Loan);
(iv) reimburse itself or the Trustee, as the case may be, for any
unreimbursed expenses reasonably incurred by such Person in respect of any
Breach or Defect with respect to any Mortgage Loan giving rise to a repurchase
obligation on the part of 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, 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 (iv) with respect to such 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;
and
(v) pay itself, the Special Servicer, 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.
(c) (i) On each Master Servicer Remittance Date and with respect to
each Mortgage Loan, the Master Servicer shall allocate to the Mortgage Loan
Subaccount the following amounts (net of any withdrawals from the Collection
Account pursuant to Section 3.04(b) that are allocable to such Mortgage Loan)
from funds on deposit in the Collection Account with respect to such Mortgage
Loan:
(A) except for amounts allocated as provided in clause (B)
immediately below, all payments received on account of principal and
interest on each Mortgage Loan (excluding Penalty Charges), but, in the
case of the Mesa Grande Mortgage Loan, only to the extent allocable to
the Mesa Grande Mortgage Loan pursuant to the terms of the Co-Lender
Agreement, whether received in the form of Monthly Payments, Balloon
Payments, Principal Prepayments, Liquidation Proceeds or Insurance
Proceeds;
(B) the Purchase Price received in connection with any purchase 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 or any purchase of a Mortgage
Loan pursuant to Section 3.18 or 9.01; and
(C) any Borrower Recoveries in respect of such Mortgage Loan and
any collection from the related REO Property, in each case only to the
extent not otherwise allocable to the Companion Loan Subaccount in
accordance with clause (c)(ii)(B) immediately below.
(ii) On each Master Servicer Remittance Date and with respect to the
Companion Loan, the Master Servicer shall allocate to the Companion Loan
Subaccount the
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following amounts (net of any withdrawals from the Collection Account pursuant
to Section 3.04(b) that are allocable to the Companion Loan) from funds on
deposit in the Collection Account with respect to the Companion Loan:
(A) all payments received on account of principal and interest on
the Companion Loan (excluding Penalty Charges) but only to the extent
allocable to the Companion Loan pursuant to the terms of the Co-Lender
Agreement, whether received in the form of Monthly Payments, Balloon
Payments, Principal Prepayments, Liquidation Proceeds or Insurance
Proceeds; and
(B) any Borrower Recoveries in respect of such Companion Loan and
any collections from the related REO Property, in each case only to the
extent allocable to the Companion Loan pursuant to the terms of the
Co-Lender Agreement; and
(iii) In making the foregoing deposits into the Collection Account and
the allocations of amounts received with respect to the Mesa Grande Loan Group
between the Mortgage Loan Subaccount and the Companion Loan Subaccount, if the
Special Servicer, in connection with a Workout of the Mesa Grande Mortgage Loan
and/or the Companion Loan, has modified the terms thereof such that (A) the
related Mortgage Note Principal Balance is decreased, (B) the Mortgage Rate or
scheduled amortization payments on the related Mortgage Note are reduced, (C)
payments of interest or principal on such Mortgage Note are waived, reduced or
deferred or (D) any other adjustment is made to the economic terms of such
Mortgage Loan or Companion Loan, all allocations between the Mortgage Loan
Subaccount and Companion Loan Subaccount pursuant to this Section 3.04 shall be
made pro rata on the same basis as such deposits and allocations were made prior
to the occurrence of such Workout.
(d) The Master Servicer shall, each month on or before the Master
Servicer Remittance Date, remit to the Companion Lender the Available Companion
Loan Distribution Amount for the Master Servicer Remittance Date then on deposit
in the Companion Loan Subaccount. Such remittance shall be made by the Master
Servicer to the Companion Lender by wire transfer of immediately available funds
to the account of such Companion Lender at a bank or other entity having
appropriate facilities therefor, if such Companion Lender shall have provided
the Master Servicer with wiring instructions no less than five Business Days
prior to the related Distribution 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 Companion Lender as specified
to the Master Servicer in accordance with the Co-Lender Agreement.
(e) The Trustee shall establish and maintain the Certificate
Distribution Account in trust for the benefit of the Certificateholders. The
Certificate 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
Certificate Distribution Account, that
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portion of the Available Certificate 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 Collection Account and the Trustee Fee
collected with respect to each Mortgage Loan.
In addition, the Master Servicer shall, as and when required hereunder,
deliver to the Trustee for deposit in the Certificate 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 Mortgage Loan Subaccount);
(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 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 Collection Account pursuant to
Section 9.01); and
(iv) any other amounts required to be so delivered for deposit in the
Certificate Distribution Account pursuant to any provision of this Agreement.
(f) The Trustee shall, upon receipt, deposit in the Certificate
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
Certificate Distribution Account, the Master Servicer shall not have delivered
to the Trustee for deposit in the Certificate Distribution Account the relevant
portion of the Available Certificate 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 Certificate 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 Certificate 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
the location of the Certificate Distribution Account as of the Closing Date and
of the new location of the Certificate Distribution Account prior to any change
thereof.
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(g) 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.
(h) 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 Certificate 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 Certificate Distribution Account the aggregate of
all Withheld Amounts on deposit in the Interest Reserve Account. On the Closing
Date, the Depositor shall make an initial deposit of $286,091.54 to the Interest
Reserve Account, which deposit shall be treated as Withheld Amounts for purposes
of the Distribution Date in March 2002.
Section 3.05. Permitted Withdrawals From the Collection Account, the
Certificate Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Reserve Account.
(a) The Master Servicer may, from time to time, make withdrawals from
the Companion Loan Subaccount for any of the following purposes:
(i) to remit to the Companion Lender the amounts required to be
remitted pursuant to Section 3.04(d);
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(ii) to pay itself unpaid Servicing Fees earned thereby in respect of
the Companion Loan or related REO Loan;
(iii) to pay to the Special Servicer, out of general collections on the
Companion Loan and any related REO Properties, earned and unpaid Special
Servicing Fees in respect of the Companion Loan if it is a Specially Serviced
Mortgage Loan or an REO Loan;
(iv) to pay to the Special Servicer earned and unpaid Workout Fees and
Liquidation Fees to which it is entitled with respect to the Companion Loan
pursuant to, and from the sources contemplated by, Section 3.11(c);
(v) to pay itself or any of its directors, officers, employees and
agents, as the case may be, any amounts payable or reimbursable to any such
Person pursuant to Section 6.03 (provided that any such payment that does not
relate to a specific Mortgage Loan or the Companion Loan shall be payable pro
rata (on the basis of the amount on deposit in the Companion Loan Subaccount and
the amount on deposit in the Mortgage Loan Subaccount) from the Companion Loan
Subaccount and the Mortgage Loan Subaccount and any such payment that relates to
the Companion Loan shall be payable solely from the Companion Loan Subaccount);
(vi) to reimburse itself and the Special Servicer, in that order, as
applicable, for the Companion Lender's ratable portion (based on the Stated
Principal Balance of the Companion Loan and the Mesa Grande Mortgage Loan) of
any unreimbursed Servicing Advances made thereby, the Master Servicer's or the
Special Servicer's respective rights to be reimbursed pursuant to this clause
(vi) with respect to the Companion Loan and any related REO Property being
limited to, as applicable, related payments, Liquidation Proceeds, Insurance
Proceeds and REO Revenues allocable to the Companion Loan Subaccount in
accordance with Section 3.04(c)(ii);
(vii) to reimburse itself and the Special Servicer, in that order, as
applicable, out of general collections on the Companion Loan and or collections
from any related REO Property allocable to the Companion Loan, for
Nonrecoverable Servicing Advances made with respect to the Companion Loan and
the related Mortgaged Property thereby;
(viii) to pay itself or the Special Servicer, in that order as the case
may be, any related Advance Interest accrued and payable on any unreimbursed
Advance made with respect to the Companion Loan in accordance with Section
3.11(f), first out of Penalty Charges received on the Companion Loan or related
REO Loan as to which such Advance was made and then, at or following such time
as it reimburses itself and the Special Servicer, in that order, as applicable,
for such Advance pursuant to clause (vi) or (vii) above or Section 3.03, out of
general collections on the Companion Loan or related REO Property;
(ix) [reserved];
(x) [reserved];
(xi) to pay out of general collections on the Companion Loan and any
related REO Property, for costs and expenses incurred pursuant to Section
3.09(c) with respect to
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the Companion Loan and to pay Liquidation Expenses out of related Liquidation
Proceeds on such Companion Loan pursuant to Section 3.09;
(xii) [reserved];
(xiii) [reserved];
(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 Companion Loan and any related REO Property, any amounts
payable to any such Person pursuant to Section 6.03 (provided that any such
payment that does not relate to a specific Mortgage Loan or the Companion Loan
shall be payable pro rata (on the basis of the amount on deposit in the
Companion Loan Subaccount and the amount on deposit in the Mortgage Loan
Subaccount) from the Companion Loan Subaccount and the Mortgage Loan Subaccount
and any such payment that relates to the Companion Loan shall be payable solely
from the Companion Loan Subaccount);
(xv) to pay, out of general collections on the Companion Loans and any
related REO Property, for (A) the Companion Loan's ratable portion (based on the
outstanding Stated Principal Balance of the Companion Loan and the Mortgage
Loan) of (I) 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 the Companion Lender and (II) the
cost of recording this Agreement in accordance with Section 11.02(a), and (B)
the cost of a new Appraisal obtained pursuant to Section 3.11(h);
(xvi) [reserved];
(xvii) to withdraw funds deposited into the Companion Loan Subaccount
in error; and
(xviii) to clear and terminate the Companion Loan Subaccount at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the Companion
Loan Subaccount 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.
(b) The Master Servicer may, from time to time, make withdrawals from
the Mortgage Loan Subaccount for any of the following purposes:
(i) to remit to the Trustee for deposit in the Certificate Distribution
Account the amounts required to be remitted pursuant to the second paragraph of
Section 3.04(e) or that may be applied to make Delinquency Advances pursuant to
Section 4.03(a);
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(ii) to pay itself unpaid Servicing Fees payable to itself earned
thereby in respect of each Mortgage Loan and 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;
(iv) to pay to the Special Servicer earned and unpaid Workout Fees and
Liquidation Fees with respect to the Mortgage Loans to which it is entitled
pursuant to, and from the sources contemplated by, Section 3.11(c);
(v) to reimburse the Trustee and itself, in that order, as applicable,
for unreimbursed Delinquency Advances made thereby, the Master Servicer's or the
Trustee'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);
(vi) to reimburse the Trustee, itself and the Special Servicer, in that
order, as applicable, for unreimbursed Servicing Advances made thereby that
remain unreimbursed or unpaid after the application of funds in the Companion
Loan Subaccount in accordance with Section 3.05(a), the Master Servicer's, the
Special Servicer's or the Trustee'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;
(vii) to reimburse 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 (A) Nonrecoverable Advances made thereby with
respect to any Mortgage Loan and (B) with respect to the Mesa Grande Loan Group,
any Nonrecoverable Servicing Advances that remain unreimbursed after the
application of funds in the Companion Loan Subaccount in accordance with Section
3.05(a);
(viii) to pay 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
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;
(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
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the 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) [reserved];
(xiii) [reserved];
(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 that remains unreimbursed or unpaid after
the application of funds in the Companion Loan Subaccount in accordance with
Section 3.05(a);
(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, that remains
unreimbursed or unpaid after the application of funds in the Companion Loan
Subaccount in accordance with Section 3.05(a), (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) that remains unreimbursed or
unpaid after the application of funds in the Companion Loan Subaccount in
accordance with Section 3.05(a) and (F) the cost of a new Appraisal obtained
pursuant to Section 3.11(h) or Section 4.03(c) that remains unreimbursed or
unpaid after the application of funds in the Companion Loan Subaccount in
accordance with Section 3.05(a);
(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
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contemplated by this Agreement, all amounts received on such Mortgage Loan
subsequent to the date of purchase;
(xvii) to withdraw funds deposited into the Mortgage Loan Subaccount in
error; and
(xviii) to clear and terminate the Mortgage Loan Subaccount at the
termination of this Agreement pursuant to Section 9.01.
For each Mortgage Loan and the Companion 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 Companion Loan Subaccount or
the Mortgage Loan Subaccount.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the Mortgage
Loan Subaccount 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 Companion Loan Subaccount or the
Mortgage Loan Subaccount.
(c) [Reserved]
(d) The Trustee may, from time to time, make withdrawals from the
Certificate 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(h);
(ii) to pay itself interest and investment income earned in respect of
amounts relating to the Trust Fund held in the Certificate Distribution Account
as provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the Certificate Distribution Account for any Collection
Period);
(iii) to pay itself unpaid Trustee Fees pursuant to Section 8.05(a);
(iv) to pay itself or any of its 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
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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(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 incurred by and reimbursable to it by the Trust Fund
pursuant to Section 10.01(c);
(vii) to withdraw funds deposited into the Certificate Distribution
Account in error; and
(viii) to clear and terminate the Certificate Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(e) 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).
(f) 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).
Section 3.06. Investment of Funds in the Collection Account, the
Certificate Distribution Account, the Excess Liquidation Proceeds Reserve
Account, the Interest Reserve Account and the REO Account.
(a) (i) The Master Servicer may direct any depository institution
maintaining the Collection 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 Certificate 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, (i) 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 (ii) 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
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capacity as such). The Master Servicer (with respect to Permitted Investments of
amounts in the Collection 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 Companion Lender,
and the Trustee (with respect to Permitted Investments of amounts in the
Certificate 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 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 Collection 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 Certificate Distribution Account, the Excess
Liquidation Proceeds Reserve Account and the Interest Reserve Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) 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 Collection 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 Certificate 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
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in accordance with Section 3.16(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in the Collection 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 Certificate 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
(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 and the
Companion Loan other than Specially Serviced Mortgage Loans) and the Special
Servicer (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); 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
Loan) shall (to the extent available at commercially reasonable terms as
determined by the Master Servicer, which shall be entitled to rely 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 Sections 3.05(a) and 3.05(b). If at any time a Mortgaged Property 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
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(and flood insurance has been made available), the Master Servicer (or in the
case of a Specially Serviced Loan, the Special Servicer) shall, if and to the
extent that the Mortgage Loan or the Companion 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 or the Companion Loan. If (i) the Mortgagor is
required by the terms of the Mortgage Loan or the Companion 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 or the Companion 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 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 or Special Servicer pursuant to
Sections 3.05(a) and 3.05(b); 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. 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,
with respect to the Companion Loan, the Companion Lender, 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 and Companion Loan documents and the Servicing Standard)
shall be deposited in the Mortgage Loan Subaccount and/or the Companion Loan
Subaccount, subject to withdrawal pursuant to Section 3.05(a), in the case of
amounts received in respect of the Companion Loan, or pursuant to Section
3.05(b) 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 or the Companion Lender, be added to the
outstanding principal balance of the related Mortgage Loan or Companion Loan,
notwithstanding that the terms of such Mortgage Loan or Companion Loan so
permit, but shall be recoverable by the Master Servicer as a Servicing Advance
pursuant to Sections 3.05(a) and 3.05(b).
(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
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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
Collection 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 Companion 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, the Certificateholders
and, if applicable, the Companion Lender, 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
Collection 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 Companion 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, the Certificateholders and, if
applicable, the Companion Lender, 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 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
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Loans, the Companion Loan 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) and (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 or Companion 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 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 Companion Loan may not be
assumed without the consent of the mortgagee in connection with any such sale or
other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund or such
Companion Loan is serviced and administered under this Agreement, as the case
may be, 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 or Companion
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, in
accordance with the preceding sentence, the Mortgage Loan or Companion 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 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
93
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 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 Companion 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 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, for so long as such Mortgage Loan is included in the Trust Fund or such
Companion Loan is serviced and administered under this Agreement, as the case
may be, the Special Servicer on behalf of the Trustee as the mortgagee of
record, shall exercise (or, subject to Section 3.20(a)(iv), waive its right to
exercise) any right it may have with respect to such Mortgage Loan or Companion
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 the case of any Mortgage Loan described in clause (A) above) and
Standard & Poor's prior to waiving any such right.
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(c) With respect to any Mortgage Loan or Companion 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 or Companion 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 (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;
(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
Companion Loan;
(iv) The Mortgagor shall have delivered a security agreement granting
the Trustee (on behalf of the Trust Fund) and, if applicable, the Master
Servicer (on behalf of the Companion Lender) 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, if applicable,
the Master Servicer (on behalf of the Companion Lender) 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, (A) 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 that if the Master
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Servicer provides Standard & Poor's with the written certification substantially
in the form of Exhibit O attached hereto, the Master Servicer shall be required
to have received such Rating Agency Confirmation from Standard & Poor's only as
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 secured by multiple Mortgaged Properties, 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 in connection with the exercise of
such Defeasance Option. (d) 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 or Companion 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.
(e) 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 Companion Loan in connection with the taking of, or the
failure to take, any action pursuant to this Section 3.08.
(f) 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 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 the
Companion 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 a Mortgage Loan or the 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
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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
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 (and, in the case of the Companion Loan, the Companion
Lender) after reimbursement to itself for 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(b). The Special Servicer (or, subject
to Section 3.20(c), the Master Servicer) shall advance all other costs and
expenses incurred by it 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(b) and further subject to its being entitled to pay out of the related
Liquidation Proceeds any Liquidation Expenses incurred in respect of any
Mortgage Loan or 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 or the Companion Lender, 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, 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 and, in the case of any Mortgage Property
securing the Companion Loan, shall be covered by and reimbursable from the
Companion Loan Subaccount).
(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 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 Mortgage Loan Subaccount pursuant
to Section 3.05(b)) to the effect that the holding of such personal property by
the Trust Fund will not
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(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, in the case of the Companion Loan, on behalf of the Companion Lender, 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 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, in the case of the Companion Loan, the
Companion Lender) 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, in the case of the Companion Loan, the
Companion Lender) 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 Mortgage
Loan Subaccount and, if the Companion Loan is involved, the Companion Loan
Subaccount by the Master Servicer at the direction of the Special Servicer
pursuant to Section 3.05(a) or 3.05(b), as the case may be; and if any such
Environmental Assessment so warrants, the Special Servicer shall, at the expense
of the Mortgage Loan Subaccount or the Companion Loan Subaccount, 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.
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(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, then the Special Servicer shall
take such action as it deems to be in the best economic interest of the Trust
Fund and, in the case of the Companion Loan, the Companion Lender (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.
(e) The Special Servicer shall provide written reports monthly to the
Master Servicer (who shall forward such reports, in the case of the Companion
Loan, to the Companion Lender and, in the case of the Mortgage Loans, to the
Trustee, who shall, upon request, forward such reports to the
Certificateholders) regarding any actions taken by the Special Servicer with
respect to any Mortgaged Property securing a Defaulted Mortgage Loan 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 (or, in the case of the Companion Loan, removal of the Mesa
Grande 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 if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan or 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
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 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
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Servicer, as the case may be, will immediately notify the Trustee and the
Companion Lender and request delivery of the related Mortgage File or Companion
Loan 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 Collection 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 release, or cause any
related Custodian to release, or the Companion Lender, pursuant to the Co-Lender
Agreement, shall release the related Mortgage File or Companion Loan File 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 Collection Account.
(b) From time to time as is appropriate for servicing or foreclosure of
any Mortgage Loan or Companion Loan, the Master Servicer or the Special Servicer
may deliver to the Trustee or the Companion Lender, as the case may be, 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,
or the Companion Lender, pursuant to the Co-Lender Agreement, shall deliver the
Mortgage File or Companion Loan 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 Companion Loan File or such document to the Trustee or the
related Custodian or to the Companion Lender or the delivery to the Trustee or
the Companion Lender of a certificate of a Servicing Officer stating that such
Mortgage Loan or Companion 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 Collection Account pursuant to Section 3.04(a) have been or
will be so deposited, or that such Mortgage Loan or Companion Loan has become an
REO Property, the Request for Release shall be released by the Trustee or the
Companion Lender, as the case may be, 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 or the Companion Lender,
pursuant to the Co-Lender Agreement, 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 or the Companion Lender 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.
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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, the Companion Loan and each REO Loan. As to each Mortgage Loan, the
Companion Loan and each REO Loan, 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 or deemed to be due on such REO Loan is computed. The Servicing
Fee with respect to any Mortgage Loan, the Companion Loan or any REO Loan 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, the Companion Loan, REO Revenues allocable as interest on
each REO Loan and, in the case of each Mortgage Loan and related REO Loan, the
interest portion of Delinquency Advances on such Mortgage Loan and REO Loan. The
Master Servicer shall be entitled to recover unpaid Servicing Fees in respect of
any Mortgage Loan, the Companion Loan or REO Loan 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) or 3.05(b). 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 Companion Loan that is not a Specially Serviced Mortgage Loan, is not
required to be deposited in the Collection 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 and the Companion Loan other than Specially Serviced Mortgage
Loans, any Penalty Charges not allocable to pay Advance Interest collected on
the Mortgage Loans and the Companion Loan; (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 of 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 Collection Account, and the Master Servicer shall
not be entitled to reimbursement therefor except as expressly provided in this
Agreement.
(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
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Loan and each REO Loan. As to each Specially Serviced Mortgage Loan and each 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, the Companion Loan and any REO Properties on deposit in the
Collection Account pursuant to Section 3.05(a) or 3.05(b).
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 or Companion Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated other than for
cause or resigns in accordance with Section 6.04, it shall retain the right to
receive any and all Workout Fees payable in respect of any Mortgage Loan or
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 the 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 or the Depositor pursuant to Section 9.01). 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 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 Mortgaged 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.
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Notwithstanding anything to the contrary herein, a Liquidation Fee and
a Workout Fee relating to the same Mortgage Loan shall not be paid from the same
proceeds on or with respect to such Mortgage Loan.
Subject to the Special Servicer's right to employ Sub-Servicers, 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 and modification fees received on or with respect to Specially Serviced
Mortgage Loans and (ii) fifty percent (50%) of all assumption fees and earnout
fees received on or with respect to any Mortgage Loan or Companion 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 Collection Account pursuant to Section 3.04(a). 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, payment of any amounts due and owing to any Sub-Servicers
retained by it and the premiums for any blanket policy obtained by it insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of the Collection Account or the REO
Account, and the Special Servicer shall not be entitled to reimbursement except
as expressly provided in this Agreement.
(e) If the Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so 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.
(f) The Master Servicer, the Special Servicer and the Trustee 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, the Companion 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, (i) if such Servicing Advance is with
regard to a Mortgage Loan, out of general collections on the Mortgage Loans, and
REO Properties and (ii) if such Servicing Advance is with respect to the
Companion Loan,
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out of general collections on the Companion Loan and REO Property allocable to
the Companion Loan.
(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 Special Servicer or the Trustee 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 Special Servicer may make an Emergency Advance notwithstanding that, at
the time such Advance is made, the 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. 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(a) or 3.05(b) out of general collections on the
Mortgage Loans, the Companion Loan and REO Properties on deposit in the Mortgage
Loan Subaccount and/or the Companion Loan Subaccount. The determination by the
Master Servicer, the Special Servicer or, if applicable, the Trustee, that it
has made a Nonrecoverable Servicing Advance or 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, engineers' 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 or the Trustee, 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 Mortgage Loan Subaccount and/or the Companion Loan
Subaccount pursuant to Section 3.05(a) and/or 3.05(b). The Trustee 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.
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 Properties
constituting collateral for Specially Serviced Mortgaged Loans) at such times
and 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
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Loan or Companion 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 the 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 or Companion 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 (or, in the case of Specially Serviced Mortgage
Loans, the Special Servicer) shall make reasonable efforts to collect promptly
from each Mortgagor (other than a Mortgagor on a 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 Special Servicer, upon request, shall
each deliver copies of the collected items to the other such party and the
Trustee in each case within 10 days of its receipt of such request.
Section 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to
the Trustee, with a copy to the Depositor, on or before April 30th of each year,
beginning in 2002, 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 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
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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 April 30th of each year, beginning in 2002, the Master
Servicer at its expense shall cause a firm of independent public accountants
(which may also render other services to the Master Servicer) and that is a
member of the American Institute of Certified Public Accountants to furnish a
statement to the Trustee 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 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, access to any documentation regarding the
Mortgage Loans, the Companion Loan 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
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normal business hours at the offices of the Master Servicer or the Special
Servicer, as the case may be, designated by it.
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, in the case of the Companion Loan, on behalf of the
Companion Lender). The Special Servicer, on behalf of the Trust Fund (and, in
the case of the Mesa Grande Loan Group, the Certificateholders, in respect of
the portion allocable to the Mesa Grande Loan and the Companion Lender, in
respect of the portion allocable to the Companion Loan), 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 the Trust Fund acquires ownership of such
REO Property 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 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. 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 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 Mortgage Loan Subaccount pursuant to Section 3.05(b).
(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
(and, in the case of the Companion Loan, the Companion Lender), for the
retention of revenues and other proceeds derived from each REO Property. The
Special Servicer shall maintain separate accounting for any funds in the REO
Account that are derived from the Companion Loan. The REO Account shall be an
Eligible Account and may consist of one account for some or all of the REO
Properties. 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
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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 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 Collection Account or deliver
to the Master Servicer (which shall deposit such amounts into the Collection
Account) 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 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, or
with respect to the Mortgaged Property underlying the Mesa Grande Loan Group,
the Companion Lender. 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
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(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 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 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, in the case of the Companion Loan, the Companion Lender)
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 Companion Lender, 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 (and, in the case of REO Property relating to the
Companion Loan, the Companion Lender) 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 by
the Trust Fund 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.
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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, in the case
of the Mesa Grande Loan, in the best interests of the Certificateholders and the
Companion Lender as a collective whole (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;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain 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 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 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 that:
(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 and, in the case of REO Property relating to the Companion
Loan, the pro rata share of such fees allocable to the Companion Loan in
accordance with the Co-Lender Agreement) 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
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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 any 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.
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 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 becomes 60 days delinquent as
to any Monthly Payment (or delinquent as to its Balloon Payment), the Special
Servicer shall promptly so notify, in writing, the Master Servicer and the
Trustee, and the Trustee shall promptly notify, in writing, the Holders of the
Controlling Class. Each of the Majority Certificateholder of the Controlling
Class, the Special Servicer 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 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. 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 the Trustee shall promptly notify the next party eligible to hold
the Option set forth above of its rights hereunder. Any of the other parties
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 and the other
parties eligible to hold the Option 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 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 next party eligible to
hold the Option (and the other parties eligible to hold the Option) of its
rights thereunder.
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(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 parties
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 parties 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. The parties acknowledge that if
an Option Holder purchases one of the Loans in the Mesa Grande Loan Group, such
purchase shall be further subject to the provisions of the Co-Lender Agreement.
(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 notice from the Special Servicer that an Option is exercisable, 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 in the case of the assignment of the Mesa Grande Loan
Group, to the Co-Lender), and none of such parties shall be obligated to
recognize any entity as an Option Holder absent such notice.
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(e) If the Special Servicer, 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(a) or by the Depositor or the Master
Servicer 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 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 Collection 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 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 under this Section 3.18 shall be deposited into
the Mortgage Loan Subaccount, and the Trustee,
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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 Financial, L.P. 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 shall deliver the related Credit File to
such purchaser.
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, in the case of
REO Property relating to the Companion Loan, the Companion Lender), 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 Collection Account, except that portion of any proceeds
constituting Excess Liquidation Proceeds with respect to the Mortgage Loans
shall be deposited in the Excess Liquidation Proceeds Reserve Account.
(c) The Special Servicer shall give the Trustee and the Master Servicer
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
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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, updated Appraisal or narrative 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, 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, in the case of any REO Property
relating to the Companion Loan, the Companion Lender) 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 Collection Account.
Any sale of any REO Property shall be final and without recourse to the Trustee,
the Trust Fund or the Companion Lender (except such recourse to the Trust Fund
or the Companion Lender, as the case may be, 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 the Companion Lender with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(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, in the case of any REO Property relating to the
Companion Loan, the Companion Lender), 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, in the case
of any REO Property relating to the Companion Loan, the Companion Lender) (for
example, if the prospective buyer making the lower offer is more likely
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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 each 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) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated, subject to the second following paragraph, to reimburse the Special
Servicer for any Servicing Advances made by but not previously reimbursed to the
Special Servicer, and to pay the Special Servicer interest thereon at the
Reimbursement Rate from the date made to, but not including, the date of
reimbursement. Such reimbursement and any accompanying payment of Advance
Interest shall be made within ten (10) days of the request therefor by wire
transfer of immediately available funds to an account designated by the Special
Servicer. Upon the Master Servicer's reimbursement to the Special Servicer of
any Servicing Advance and payment to the Special Servicer of interest thereon,
all in accordance with this Section 3.20(c), the Master Servicer shall for all
purposes of this Agreement be deemed to have made such Servicing Advance at the
same time as the Special Servicer originally made such Advance, and accordingly,
the Master Servicer shall be entitled to reimbursement for such Advance,
together with interest thereon, at the same time, in the same manner and to the
same extent as the Master Servicer would otherwise have been entitled if it had
actually made such Servicing Advance.
Notwithstanding anything to the contrary contained in this Agreement,
if the Special Servicer is required under this Agreement to make any Servicing
Advance but does not desire to do so, the Special Servicer may, in its sole
discretion, request that the Master Servicer make such Advance, such request to
be made in writing and in a timely manner that does not materially and adversely
affect the interests of any Certificateholder. Subject to the following
paragraph, the Master Servicer shall have the obligation to make any such
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
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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. If the Special Servicer makes any Servicing
Advances in accordance with the terms of this Agreement, the Special Servicer
shall notify the Master Servicer in writing within one Business Day of any such
Servicing Advance.
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, or to reimburse the Special Servicer for, 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 or to reimburse to the Special Servicer hereunder either (y) although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
or would be, if made, a Nonrecoverable Servicing Advance, or (z) 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 the
Companion 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 or the Companion 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 or the Companion 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 or the Companion Loan
becomes an REO Property (each such Mortgage Loan or the Companion Loan, as the
case may be, 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 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. The cost of any such Appraisal shall be covered by, and reimbursable
as, a Servicing Advance.
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).
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.
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).
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(e) The Master Servicer shall (i) deliver to the Trustee for deposit in
the Certificate 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 during the most recently
ended Collection Period and (ii) deposit in the Companion Loan Subaccount 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 Companion Loan during the most recently ended Collection Period.
(f) The Master Servicer shall (i) deliver to the Trustee for deposit in
the Certificate Distribution Account on each Master Servicer Remittance Date,
without any right of reimbursement therefor, an amount equal to the lesser of
(A) 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 (B) the aggregate Master Servicing Fees received by the Master Servicer with
respect to the Mortgage Loans during such Collection Period and (ii) deposit in
the Companion Loan Subaccount on each Master Servicer Remittance Date, without
any right of reimbursement therefor, an amount equal to the lesser of (A) the
aggregate of all Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of the Companion Loan during the most
recently ended Collection Period, and (B) the aggregate Master Servicing Fees
received by the Master Servicer with respect to the Companion Loan 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 Servicer 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 (and, if applicable, the
Companion Loan) 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.
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(k) To the extent consistent with the terms of the applicable Mortgage
Loan or Companion Loan, the 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 Companion Loan.
(l) Upon the application of the proceeds of the release of any earnout
reserve to the prepayment of the related Mortgage Loan or Companion Loan, the
Master Servicer shall calculate, based upon the Maturity Date, Mortgage Rate and
remaining outstanding principal balance of such Mortgage Loan, a revised
schedule upon which the remaining amount of principal and interest due upon such
Mortgage Loan or Companion 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 or Companion Loan
documents and otherwise consistent with the Servicing Standard.
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 or Companion Loan it is required to
service and administer hereunder, without the consent of the Trustee or any
Certificateholder (and, in the case of the Companion Loan, the Companion
Lender), subject, however, to each of the following limitations, conditions and
restrictions:
(i) other than as provided in Sections 3.02 and 3.08, 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 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
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Mortgagor to pay any Prepayment Premium or permit a Principal Prepayment during
any period when the terms of the Mortgage Loan or 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 or
Companion Loan or reduce the likelihood of timely payment of amounts due
thereon; the Special Servicer (in such capacity) may, however, 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 Companion Loan has occurred or a default in respect of payment
on such Mortgage Loan or Companion Loan is reasonably foreseeable, and such
modification, waiver, amendment or other action is reasonably likely to produce
a greater recovery to Certificateholders (and, the case of the Companion Loan,
the Companion Lender) 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 beyond the date that is two years
prior to the Rated Final Distribution Date and, in the case of any Mortgage 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;
(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 clause (h) of Section 3.20 with
respect to, any Mortgage Loan or Companion Loan that would (A) cause REMIC I,
REMIC II or REMIC III 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 or Companion 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
judgments as regards 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 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
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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 release
or substitute any collateral securing an outstanding Mortgage Loan or 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 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 remaining Mortgage Loan and,
if applicable, 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 Companion Loan or any other
acts referenced in this Section 3.21(a) that is required under the terms of such
Mortgage Loan or Companion 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 similar. Neither the Master Servicer nor the Special Servicer
may extend the Maturity Date on any Mortgage Loan or 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 or Companion 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 establishment of a letter of credit with
respect to any Specified Letter of Credit Loan, (B) any waiver related to the
conditions to be satisfied with respect to any Specified Trigger Event Loan
(including waivers relating to the release, reduction or termination of reserves
(other than reserves included on clause (vii) above)), (C) any waivers relating
to the establishment of reserves, (D) waivers of any requirements regarding
additional collateral or (E) waivers of any lock-box requirements, unless the
Special Servicer has approved such waiver in writing.
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(b) Neither the Master Servicer nor the Special Servicer shall have any
liability to the Trust Fund, the Certificateholders, the Companion Lender 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 (or, in the case of the
Companion Loan, the Companion Lender) 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, the Companion
Lender or any other Person with respect to the Special Servicer's approval,
disapproval or delay in processing any assumption or earnout release as provided
in Section 3.21(a)(vii)
(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 or the Companion Lender, be added to the unpaid principal
balance of the related Mortgage Loan or Companion Loan, notwithstanding that the
terms of such Mortgage Loan or Companion Loan or such modification, waiver or
amendment so permit.
(d) The Master Servicer and, with respect to a Specially Serviced
Mortgaged 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 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
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 and the
Companion Loan entered into pursuant to this Section 3.21 shall be in writing.
(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 Companion Loan 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 10 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.
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(h) The Failure of the Special Servicer to respond to the Master
Servicer within five (5) Business Days of the Master Servicer's written request
(such request to include sufficient information regarding the applicable
Mortgage Loan or Companion Loan) for any approval or consent required hereunder,
shall be deemed to constitute a grant of such request for approval or consent.
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 the Companion 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 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 Companion 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 Companion Loan, and the
Special Servicer's right to receive the Special Servicing Fee with respect to
such Mortgage Loan or Companion Loan, shall terminate, and the obligations of
the Master Servicer to service and administer such Mortgage Loan or 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 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.
(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 information, including correspondence with the related
Mortgagor.
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(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 and the Special Servicer may each enter into
Sub-Servicing Agreements for the servicing and administration of all or a part
of the Mortgage Loans or the Companion 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 or the Special Servicer (whichever retained it) under
Section 3.07 hereof; (ii) provides that if the Master Servicer or the Special
Servicer, as the case may be, shall for any reason no longer be the Master
Servicer or Special Servicer, as applicable, hereunder (including, without
limitation, by reason of an Event of Default or their termination hereunder),
the Trustee, its designee or any successor Master Servicer or Special 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 or the
Special Servicer, as the case may be, under such agreement; (iii) in the case of
a Sub-Servicing Agreement entered into by the Master Servicer, 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 or Companion Loan serviced thereunder at the time such Mortgage Loan or
Companion 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 Financial, L.P. 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 or the Special Servicer, as the case may
be, consent to any modification to the terms of a Mortgage Loan or a Companion
Loan pursuant to Section 3.21; (v) does not permit the Sub-Servicer any direct
rights of indemnification that may be satisfied out of assets of the Trust Fund,
the Companion Loan Subaccount; and (vi) in the case of a Sub-Servicing Agreement
entered into by the Special Servicer, relates only to Specially Serviced
Mortgage Loans or REO Properties and 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 such Mortgage Loan or Companion
Loan that becomes a Corrected Mortgage Loan. Termination penalties or fees
incurred under any such Sub-Servicing Agreement shall not be an obligation of,
or expense chargeable to, the Certificateholders, the Trust Fund or the
Companion Lender. References in this Agreement to actions taken or to be taken
by the Master Servicer or the Special Servicer, as the case may be, include
actions taken or to be taken by a Sub-Servicer on behalf of the Master Servicer
or the Special Servicer, as the case may be; and, in connection therewith, all
amounts advanced by any Sub-Servicer to satisfy the obligations of the Master
Servicer or the Special Servicer, as the case may be, hereunder to make
Servicing Advances and Delinquency Advances shall be deemed to have been
advanced by the Master Servicer or the Special Servicer, as the case may be, 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 or the Special Servicer, as the case may
be, and, for so long as they are
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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 or the Special Servicer, as the case may be, and such
Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each 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
and the Special Servicer, for the benefit of the Trustee and the
Certificateholders (and, in the case of the Companion Loan, the Companion
Lender), shall (at no expense to the Trustee, the Certificateholders, the Trust
Fund or the Companion Lender) 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 and the Special Servicer in accordance with the Servicing Standard.
(d) In the event the Trustee, its designee or any successor Master
Servicer or Special Servicer assumes the rights and obligations of the Master
Servicer or the Special Servicer under any Sub-Servicing Agreement, the Master
Servicer or the Special Servicer, as the case may be, 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 or Companion
Loan 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
and the Special Servicer each shall remain obligated and liable to the Trustee
and the Certificateholders (and, in the case of the Companion Loan, the
Companion Lender) for the servicing and administration of the Mortgage Loans and
the Companion Loan 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 and Companion Loan for which it
is responsible.
Section 3.24. Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.
(a) The Majority Certificateholder of the Controlling Class, may at any
time and from time to time replace any existing Special Servicer 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 designated
Person
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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 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,
whether in respect of Servicing Advances or otherwise, 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.
(b) The Majority Certificateholder of the Controlling Class will have
no liability to the Trust, the Companion Lender 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, and pursuant to the Co-Lender Agreement, the Co-Lender
has acknowledged and agreed, 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 or to the Companion Lender, 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 Owners of one or more other
Classes of Certificates and of the Companion Lender, and that the Majority
Certificateholder of the Controlling Class shall have no liability whatsoever
for having so acted, and none of the Certificateholder or the Companion Lender
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.
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(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.
Section 3.25. Lock-Box Accounts and Servicing Accounts.
(a) The Master Servicer shall administer each Lock-Box Account, Cash
Collateral Account and Servicing Account in accordance with the related Mortgage
Loan or Companion Loan, Cash Collateral Account Agreement or Lock-Box Agreement,
if any.
(b) For any Mortgage Loan or Companion 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 Companion Loan,
the Master Servicer (or, with respect to any Specially Serviced 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 each 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, 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.
(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.
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(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.
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 Certificate Distribution Amount 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;
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(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 Certificate 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 Certificate
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 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
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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 Certificate 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, with respect to distributions of principal in respect
of REMIC II Regular Interests LA-2-1 and LA-2-2, the aggregate Uncertificated
Principal Balance of the REMIC II Regular Interests LA-2-1 and LA-2-2 shall
correspond with the outstanding Class Principal Balance of the Class A-2
Certificates and the Uncertificated Principal Balance of the REMIC II Regular
Interest LA-2-2 will only be reduced after the Uncertificated Principal Balance
of the REMIC II Regular Interest LA-2-1 has been reduced to zero; and
(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, with respect to REMIC II Regular Interests LA-2-1 and LA-2-2, any Realized
Losses and Additional Trust Fund Expenses shall be allocated and reimbursed to
the REMIC II Regular Interests LA-2-1 and LA-2-2 on a pro rata basis.
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 Certificate
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.
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(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 Certificate Distribution
Account the Available Certificate 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 to the Holders of the respective Classes of Senior
Certificates, in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each such Class of Certificates
for such Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(ii) to pay principal first to the Holders of the Class A-1
Certificates and second to the Holders of the Class A-2 Certificates, in each
case, up to an amount equal to the lesser of (1) the then outstanding Class
Principal Balance of such Class of Certificates and (2) the remaining portion,
if any, of such Certificate Principal Distribution Amount;
(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 Certificate Principal Distribution Amount" shall be to the
Certificate 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 Certificate Distribution Amount for such date for the
following purposes and in the following order of priority:
(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
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Class of Certificates and (B) the remaining Certificate 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 Certificate 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 Certificate 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;
(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
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Principal Balance of such Class of Certificates and (B) the remaining
Certificate 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 Certificate 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 Certificate
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
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(A) the then outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Certificate 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 Certificate 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 Certificate 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;
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(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 Certificate Principal Distribution Amount for such
Distribution Dates;
(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 Certificate 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
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class N 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 Certificates, up to an amount equal to the
lesser of (A) the then outstanding Class Principal Balance of such Class N
Certificates and (B) the remaining Certificate Principal Distribution Amount
for such Distribution Dates;
(xxxvi) to reimburse the Holders of the Class N Certificates, up
to an amount equal to all Realized Losses and Additional Trust Fund
Expenses, if any, previously deemed allocated to such Class N Certificates
and for which no reimbursement has previously been received;
(xxxvii) 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
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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 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 Certificate Principal
Distribution Amount for such Distribution Dates;
(xxxix) 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;
(xl) 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;
(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 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 Certificate
Principal Distribution Amount for such Distribution Dates;
(xlii) 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;
(xliii) 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;
(xliv) 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
(xlv) to pay to the Holders of the Class R-III Certificates the
balance, if any, of the Available Certificate 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) and (xliv) 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
Certificate Principal Distribution Amount" in any of clauses (ii), (v), (viii),
(xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii),
(xli) and (xliv) above, in connection with the payments of
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principal to be made to the Holders of any Class of Principal Balance
Certificates, shall be to the Certificate 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 Certificate 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 Certificate
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
Certificate Distribution Account, as Grantor Trust Assets, any amounts that
represent Excess Interest actually collected on the 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 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 Certificate 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;
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(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 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.
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(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 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.
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Section 4.02. Statements to Certificateholders and the Companion
Lender; Certain Reports by the Master Servicer and the Special Servicer.
(a) (i) 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:
(A) 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;
(B) 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;
(C) the amount of any distributions made on such Distribution Date to
the Holders of each Class of Residual Certificates;
(D) the aggregate amount of outstanding Delinquency Advances as of the
related Determination Date;
(E) 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;
(F) the aggregate Stated Principal Balance of the Mortgage Pool
immediately before and after such Distribution Date and the percentage of the
Cut-off Date Principal Balance of the Mortgage Pool which remains outstanding
immediately after such Distribution Date;
(G) 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 at the close of business on the related Determination
Date;
(H) 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;
(I) 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;
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(J) 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;
(K) 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 Certificate Distribution Amount for such Distribution Date;
(L) 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
Certificate Distribution Amount for such Distribution Date and the most recently
determined Appraised Value and date upon which the Appraisal was performed;
(M) 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 Certificate Distribution Amount for
such Distribution Date and the balance of the Excess Liquidation Proceeds
Reserve Account for such Distribution Date;
(N) the Distributable Certificate Interest in respect of each Class of
REMIC III Regular Certificates for such Distribution Date;
(O) 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;
(P) the Pass-Through Rate for each Class of REMIC III Regular
Certificates for such Distribution Date;
(Q) 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;
(R) the Certificate Factor for each Class of REMIC III Regular
Certificates immediately following such Distribution Date;
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(S) the Certificate Principal Distribution Amount for such Distribution
Date;
(T) 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;
(U) 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;
(V) any Appraisal Reduction Amounts on a loan-by-loan basis, and the
total Appraisal Reduction Amounts, as of the related Determination Date; and
(W) such additional information as contemplated by Exhibit G hereto.
In the case of information furnished pursuant to subclauses (A), (B),
(C) and (Q) 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 set-up file via its internet website
initially located at "xxx.xxxxxxx.xxx/xxxx". In addition, the Trustee shall make
available each month, on a restricted basis, solely to each Privileged Person,
(i) the CMSA Periodic Loan File delivered for each Distribution Date, the CMSA
Property File Report, 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 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
the Companion Loan at a website maintained by the Master Servicer.
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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 (A), (B) and (C) 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, 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 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 K
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
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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)(i) to the Certificateholders and
Certificate Owners using a format and media mutually acceptable to the Trustee
and Bloomberg.
(ii) The Master Servicer shall provide reports to the Co-Lender as
required under the Co-Lender Agreement.
(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) in
electronic form mutually acceptable to the Trustee and the Master Servicer the
following reports or information: (1) a Delinquent Loan Status Report, (2) an
REO Status Report, (3) a Historical Loan Modification Report, (4) a Historical
Loss Report, (5) the Servicer Watch List, (6) the CMSA Financial File, (7) the
CMSA Property File Report and (8) 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) a "Comparative
Financial Status Report" containing substantially the content set forth in
Exhibit I setting forth, among other things, the occupancy, revenue, net
operating income and debt service coverage ratio for each Mortgage Loan (other
than the 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): (a) the most current available
year-to-date; (b) each of the previous two full fiscal years stated separately
(to the extent such information is in the Master Servicer's possession); and (c)
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 Periodic Loan File setting forth certain information with respect
to the Mortgage 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
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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 Mortgage
Loan Subaccount to the Certificate 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 Certificate
Principal Distribution Amount for the immediately succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the Mortgage
Loan Subaccount to the Certificate 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 Certificate Distribution Account;
(iv) the information required to be included in the Distribution Date
Statement for the next succeeding Distribution Date and described in clauses (E)
- (M) and (S) - (W) of the description of the Distribution Date Statement in
Section 4.02(a)(i);
(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)(i), and
(ii) an updated Mortgage Loan Schedule, in each case reflecting the changes in
the Mortgage Pool during the related Collection Period.
In addition, the Master Servicer is also required to perform with
respect to each Mortgaged Property and REO Property (except any Mortgaged
Property securing a Credit Lease Loan):
(1) Within 30 days after receipt of a quarterly operating
statement, if any, commencing with the calendar quarter ended June 30, 2001,
a "CMSA Operating Statement Analysis Report" containing revenue, expense,
and net operating income
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information substantially in accordance with Exhibit I 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 Operating Statement Analysis upon request; and
(2) Within 30 days after receipt by the Master Servicer of an
annual operating statement, an NOI adjustment analysis containing
substantially the content set forth in Exhibit I (the "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 Comparative Financial Status Report above.
The Master Servicer will deliver to the Trustee by electronic means the "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 Operating Statement Analysis and 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 Collection 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
Collection Account for each category of deposit specified in Section 3.04(a) and
each category of withdrawal specified in Section 3.05(a) or 3.05(b). 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 and
the Companion Loan in the possession of the Master Servicer (which 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
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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, if applicable, the Companion Loan
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 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 the Companion Loan available on
any website that it has established.
Section 4.03. Delinquency Advances.
(a) On each Delinquency Advance Date, the Master Servicer shall either
(i) deposit into the Mortgage Loan Subaccount from its own funds an amount equal
to the aggregate
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amount of Delinquency Advances, if any, to be made in respect of the related
Distribution Date, (ii) apply amounts held in the Mortgage Loan Subaccount 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 (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 Mortgage Loan Subaccount 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 Mortgage Loan Subaccount
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 Mortgage Loan Subaccount 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).
(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 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, if an Appraisal Reduction Amount exists with
respect to any Mortgage Loan that is a Required Appraisal Loan, then, in the
event of subsequent delinquencies thereon, the interest portion of the
Delinquency Advance in respect of such Required Appraisal Loan 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 for such Distribution Date without
regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the Stated Principal Balance of
such Required Appraisal Loan immediately
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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 immediately prior to such Distribution Date.
(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(b) out of general collections on the Mortgage Loans and REO Properties on
deposit in the Mortgage Loan Subaccount. 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 or the Trustee, 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 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.
(d) The Master Servicer and the Trustee 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 on deposit in the Mortgage Loan Subaccount pursuant to Section
3.05(b).
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
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Principal Balance of each REMIC I Regular Interest (after taking account of such
deemed 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 LA-1, LA-2-1, LA-2-2, LB, LC, LD, LE, LF, LG, LH, LJ, LK, LL, LM, LN,
LO and LP 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 the aggregate
Uncertificated Principal Balance of the REMIC II Regular Interests LA-2-1 and
LA-2-2 shall correspond with the Certificate Principal Balance of the Class A-2
Certificates and the Uncertificated Principal Balances of the REMIC II Regular
Interests LA-2-1 and LA-2-2 shall be reduced on a pro rata basis.
(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 P, Class O, Class N, 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 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.
ARTICLE V
THE CERTIFICATES
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Section 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through A-22. 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-2, Class B, Class C and
Class D Certificates, $100,000 in the case of the Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
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.
(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
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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 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.
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(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, Class O or Class P 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, any 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, Class O or Class P 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, 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 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 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:
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(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
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
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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 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.
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(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.
(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, 2002.
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
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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
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Master Servicer, the Special Servicer,
the Trustee 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
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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 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.
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 the Companion Loan 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,
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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) 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 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 the Companion Loan 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 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, 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, each of
the Master Servicer and the Special 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 or the Special 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,
the Certificateholders or the Companion Lender 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 reckless 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
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indemnified by the Trust Fund (and to the extent provided in Section 3.05(a),
the Companion Loan Subaccount) and held harmless against any loss, liability or
expense incurred in connection with any legal action relating to this Agreement,
the Certificates, any asset of the Trust Fund or the Companion Loan, 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 reckless disregard of obligations and duties hereunder.
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 and the Companion
Lender 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, to the extent
provided in Section 3.05(a), the Companion Loan Subaccount), 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 and the Companion
Loan on deposit in the Mortgage Loan Subaccount and the Companion Loan
Subaccount as provided by Sections 3.05(a) and 3.05(b).
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.
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
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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.
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 Collection 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 Certificate Distribution Account any amount 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 Collection 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 or the Special 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; 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
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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
(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.
(b) If any Event of Default 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 Party, with a copy of such
notice to the Depositor (if the
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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, the Companion Loan
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, the Companion Loan 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 the Companion Loan 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 Collection Account, the Certificate Distribution
Account, any REO Account or any Servicing Account or thereafter be received with
respect to the Mortgage Loans, the Companion Loan 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).
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 hereunder or the Companion Loan. As compensation therefor, the
Trustee shall be entitled
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to the applicable Servicing Fee and Special Servicing Fee and all funds relating
to the Mortgage Loans and the Companion Loan which the Master Servicer or the
Special Servicer would have been entitled to charge to the Collection Account or
the Certificate 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,
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 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 Mortgage Loans and the Companion Loan 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.
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.
(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 notice of such occurrence, unless such default shall have
been cured.
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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
hereunder 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. 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.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee .
(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. The Trustee shall not 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, the Special Servicer or the Companion Lender or any other person and
accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee 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
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shall be determined solely by the express provisions of this Agreement, the
Trustee 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
and, in the absence of bad faith on the part of the Trustee, the Trustee 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 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% of the
Voting Rights relating to the time, method and place of conducting any
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 .
Except as otherwise provided in Section 8.01:
(i) The Trustee 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;
(ii) The Trustee 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;
(iii) The Trustee shall not 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 or the Companion Lender, pursuant to the provisions of this
Agreement, unless such Certificateholders or the Companion Lender shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; the Trustee
shall not 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
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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;
(iv) The Trustee shall not 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;
(v) 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 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;
(vi) 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;
(vii) 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
(viii) The Trustee shall not 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 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 the Trustee shall not assume responsibility for their correctness. The
Trustee 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, the Companion Loan or any related document. The Trustee 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
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deposited in or withdrawn from the Collection Account or any other account by or
on behalf of the Depositor, the Master Servicer or the Special Servicer. The
Trustee shall not 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, the Special Servicer or the
Companion Lender and accepted by the Trustee in good faith, pursuant to this
Agreement.
Section 8.04. Trustee May Own Certificates.
The Trustee, 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.
(a) Monthly, the Trustee shall be entitled to withdraw the Trustee Fee
from the Certificate Distribution Account pursuant to Section 3.05(d) 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
Certificate Distribution Account an amount equal to the then unpaid Trustee
Fees.
(b) The Trustee and any director, officer, employee or agent of the
Trustee and any of its directors, officers, employees or agents shall be
indemnified and held harmless by the Trust Fund (to the extent of amounts on
deposit in the Certificate 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 relating to the exercise and performance of any of the
powers and duties of the Trustee hereunder; provided that neither the Trustee
nor 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
in the normal course of performance of the Trustee's 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 obligations and duties
hereunder, or by reason of reckless disregard of such obligations or duties, or
as may arise from a breach of any representation, warranty or covenant of the
Trustee 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.
Section 8.06. Eligibility Requirements for Trustee; Assignment of
Rights or Delegation of Duties.
(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
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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 and "Aa2" by
Xxxxx'x 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. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee 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, 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 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 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 8.07. Resignation and Removal of the Trustee.
(a) The Trustee 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 and to all Certificateholders. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor trustee acceptable to the Master Servicer by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee. A copy of such instrument shall be delivered to the
Master Servicer, the Special Servicer and the Certificateholders by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee 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 shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee 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 for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee
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and appoint a successor trustee acceptable to the Master Servicer by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor trustee. A copy of such instrument shall be
delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee 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 by the Master Servicer.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08. Upon any succession of the Trustee under this
Agreement, the predecessor Trustee 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
had not resigned or been removed.
Section 8.08. Successor Trustee.
(a) Any successor trustee 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 an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, 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 herein. The predecessor trustee
shall deliver to the successor trustee 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), and the Depositor, the Master Servicer, the Special Servicer
and the predecessor trustee 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 all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder.
(b) No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section 8.08, the successor trustee shall mail notice of such
appointment to the Depositor and the Certificateholders.
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Section 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee 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 shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee 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 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.
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(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 and the Companion Loan
File 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 or the Companion Loan
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 the 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 and Companion Loan File 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 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
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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 (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 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, 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).
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(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, the Companion Loan 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, the Depositor and the Companion Lender, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States of
America.
(ii) 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.
(iii) This Agreement, assuming due authorization, execution and
delivery by the Special Servicer, the Master Servicer 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 creditor's rights generally, and general principles of equity,
regardless of whether such enforcement is considered in a proceeding in equity
or at law.
(iv) 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.
(v) 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.
(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 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
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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.
Section 8.14. Filings with the Securities and Exchange Commission.
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 and file with the Securities and Exchange
Commission on Form 8-K (including XXXXX filings), on behalf of the Trust Fund,
each Distribution Date Statement. The Trustee shall have no responsibility to
file any items other than those specified in this Section 8.14. Prior to January
2, 2003 (and each anniversary thereafter until directed by the Depositor to file
a Form 15, delisting the transaction) the Trustee shall hire counsel selected by
the Depositor to file Form 10-K's on behalf of the Trust Fund for the preceding
fiscal year. Any fees and expenses accrued and incurred by the Trustee in
connection with this Section 8.14 (including reasonable attorneys' fees) shall
be reimbursed to it by the Depositor. Prior to filing any such reports, the
Trustee shall submit reports to the Depositor for review and approval.
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
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 and the Trustee (other than the obligations of the Trustee
to provide for and make payments to Certificateholders as hereafter set forth)
shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the earlier
to occur of (i) the purchase by the Master Servicer or the Depositor 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 appraised value of each REO Property, if
any, included in REMIC I (such appraisal to be conducted by an Independent
MAI-designated appraiser selected by the Master Servicer and approved by the
Trustee), 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 Mortgage
Loans and the rights of Archon Financial, L.P., the applicable Designated
Sub-Servicer and the Master Servicer to receive or retain their applicable
portion, if any, of the Additional Servicing Fee pursuant to the applicable
Designated Sub-Servicer Agreement, and (ii) the final payment or other
liquidation
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(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.
The Master Servicer 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 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 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 or the Depositor, as applicable, shall deposit in the Certificate
Distribution Account not later than the Master Servicer Remittance Date relating
to the Distribution Date on which the final distribution on the Certificates is
to occur, 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 Mortgage Loan Subaccount, which portion shall be deposited in the
Mortgage Loan Subaccount). In addition, the Master Servicer shall (i) transfer
to the Certificate Distribution Account all amounts required to be transferred
thereto on such Master Servicer Remittance Date from the Mortgage Loan
Subaccount pursuant to the second paragraph of Section 3.04(e), together with
any other amounts on deposit in the Mortgage Loan Subaccount that would
otherwise be held for future distribution and (ii) remit to the Companion Lender
all amounts required to be remitted thereto on such Master Servicer Remittance
Date from the Companion Loan Subaccount pursuant to Section 3.04(d), together
with any other amounts on deposit in the Companion Loan Subaccount that would
otherwise be held for future distribution. Upon confirmation that such final
transfers have been made, the Trustee shall release or cause to be released to
the Master Servicer 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 or the Depositor, as applicable, as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties remaining in REMIC I. All
Credit Files for the remaining Mortgage Loans and REO Properties shall be
delivered to the purchasing entity.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and the Companion Lender 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
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
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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.
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 Certificate Distribution Account that are allocable to payments
on the Class to which the Certificates so presented and surrendered belong.
Amounts on deposit in the Certificate 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)-(viii) of Section 3.05(d))
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 Certificate 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).
Section 9.02. Additional Termination Requirements.
(a) In the event the Master Servicer or the Depositor purchases all of
the Mortgage Loans and each REO Property remaining in REMIC I 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 or the Depositor, 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 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 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.
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(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 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 Mortgage Loan Subaccount as provided by Section
3.05(b) 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
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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 Servicer, the Trustee, or the
Special Servicer, as applicable (or other Person acceptable to the Trustee),
determine that the monetary exposure to REMIC I, REMIC II and REMIC III is not
material and in its or their sole discretion 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
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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 Certificate 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 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
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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 Mortgage Loan
Subaccount, the Certificate Distribution 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.
Section 10.02. Depositor, Master Servicer, Special Servicer, 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 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
181
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 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
182
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.
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:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein, which
may be inconsistent with any other provisions herein or therein 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 REMIC
I, REMIC II or REMIC III as a REMIC at all times that any Certificate is
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,
(iv) to change the timing and/or nature of deposits into the Collection
Account or the Certificate Distribution Account or to change the name in which
the Collection 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 and (C) such change shall not result in the downgrade,
qualification or withdrawal of the then-current rating assigned to any Class of
Certificates, 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
183
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,
(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 Companion
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
(viii) with respect to the Companion Loan, to modify, eliminate or add
any provision of this Agreement relating to the Companion Loan, and, at the
request of the Companion Lender, to facilitate a secondary market sale, or the
inclusion of the Companion Loan in a Securitization, and/or meet any Rating
Agency requirements; 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.
(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
(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.
(c) Notwithstanding the foregoing, the Trustee will not be entitled to
consent to any amendment hereto without having first received an Opinion or
Opinions 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.
184
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each Certificateholder and
the Companion Lender.
(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 and/or the Companion Lender, 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 Mortgage Loan Subaccount and/or the Companion Loan
Subaccount.
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 (the cost of which may be paid out of the
Mortgage Loan Subaccount and/or the Companion Loan Subaccount) 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 Mortgage Loan Subaccount
and/or the Companion Loan Subaccount) to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders
and/or the Companion Lender.
(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.
185
(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 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.
186
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 Operations, telecopy number: (000) 000-0000 (with copies to
General Counsel (telecopy number: (000) 000-0000)); (iii) in the case of the
Trustee, the Corporate Trust Office; (iv) in the case of the Special Servicer,
000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, telecopy number (415)
391-2949, 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 Investor
Services, 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 Banc
Alex. Xxxxx Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx X. Xxxxxx, telecopy number: (000) 000-0000 and (B) Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx, telecopy
number: (000) 000-0000; (vii) in the case of the initial Companion Lender,
Xxxxxxx Xxxxx Mortgage Company 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxx Xxxxxxx, facsimile no. (000) 000-0000, and (viii) in the case of
the initial Majority Certificateholder of the Controlling Class, 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 or the
Companion Lender.
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
187
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 Mortgage
Loan Subaccount and the Certificate Distribution Account and all reinvestment
earnings on such amounts, and all of the Depositor's right, title and interest
in and to the 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 Commonwealth of
Pennsylvania 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; Third Party Beneficiary.
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.
The Companion Lender shall be a third party beneficiary of each agreement or
obligation in this Agreement relating to payments made or collected under or
with respect to the Companion Loan and the rights of the Companion Lender to
receive notices and reports hereunder. 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:
188
(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;
(iv) any change in the location of the Certificate 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 Supplemental Agreement; and
(vi) the final payment to any Class of Certificateholders.
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.
(b) 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.
(c) 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.
189
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:
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer and Special Servicer
By:
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, Trustee
By:
-------------------------------------
Name:
Title:
000
XXXXX XX XXX XXXX )
) ss.
COUNTY OF NEW YORK )
On the day of February, 2002, 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.
-----------------------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the day of February, 2002, 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 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.
-----------------------------------------
Notary Public
[Notarial Seal]
STATE OF [NEW YORK] )
) ss.
COUNTY OF [NEW YORK] )
On the day of February, 2002, before me, a notary public in and for
said State, personally appeared known to me to be a of XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, a national chartered bank duly organized,
validly existing and in good standing under 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.
-----------------------------------------
Notary Public
[Notarial Seal]
TABLE OF CONTENTS
(CONTINUED)
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS......................................................4
Section 1.01. Defined Terms.............................................4
Section 1.02. Certain Calculations in Respect of the Mortgage Pool
and in Respect of the Companion Loan.....................63
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES....................................................64
Section 2.01. Establishment of Trust; Conveyance of Mortgage Loans.....64
Section 2.02. Acceptance by Trustee....................................67
Section 2.03. Mortgage Loan Sellers' Repurchase of Mortgage Loans
for Defects in Mortgage Files and Breaches of
Representations and Warranties...........................69
Section 2.04. Issuance of Class R-I Certificates; Creation of
REMIC I Regular Interests................................72
Section 2.05. Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by the Trustee...............................72
Section 2.06. Issuance of Class R-II Certificates; Creation of
REMIC II Regular Interest................................72
Section 2.07. Conveyance of REMIC II Regular Interests; Acceptance
of REMIC III by Trustee..................................72
Section 2.08. Issuance of REMIC III Certificates.......................73
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND..................73
Section 3.01. Servicing and Administration of the Mortgage Loans.......73
Section 3.02. Collection of Mortgage Loan Payments.....................75
Section 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts and Reserve Accounts..................75
Section 3.04. Collection Account, Distribution Account and
Interest Reserve Account.................................77
Section 3.05. Permitted Withdrawals From the Collection Account,
the Certificate Distribution Account, the Interest
Reserve Account and the Excess Liquidation Proceeds
Reserve Account..........................................83
Section 3.06. Investment of Funds in the Collection Account, the
Certificate Distribution Account, the Excess
Liquidation Proceeds Reserve Account, the Interest
Reserve Account and the REO Account......................89
Section 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage..........................91
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 3.08. Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing; Defeasance............94
Section 3.09. Realization Upon Defaulted Mortgage Loans................97
Section 3.10. Trustee to Cooperate; Release of Mortgage Files.........101
Section 3.11. Servicing Compensation; Nonrecoverable Servicing
Advances................................................102
Section 3.12. Inspections; Collection of Financial Statements.........105
Section 3.13. Annual Statement as to Compliance.......................106
Section 3.14. Reports by Independent Public Accountants...............107
Section 3.15. Access to Certain Information...........................107
Section 3.16. Title to REO Property; REO Account......................108
Section 3.17. Management of REO Property; Independent Contractors.....109
Section 3.18. Sale of Defaulted Mortgage Loans........................112
Section 3.19. Sale of REO Property....................................115
Section 3.20. Additional Obligations of the Master Servicer and
the Special Servicer....................................117
Section 3.21. Modifications, Waivers, Amendments and Consents.........120
Section 3.22. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping........................124
Section 3.23. Sub-Servicing Agreements................................125
Section 3.24. Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class..............126
Section 3.25. Lock-Box Accounts and Servicing Accounts................128
Section 3.26. Representations and Warranties of the Master
Servicer and the Special Servicer.......................128
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS.............129
Section 4.01. Distributions...........................................129
Section 4.02. Statements to Certificateholders and the Companion
Lender; Certain Reports by the Master Servicer
and the Special Servicer................................141
Section 4.03. Delinquency Advances....................................149
Section 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses...........................................151
ARTICLE V THE CERTIFICATES...............................................152
Section 5.01. The Certificates........................................152
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(CONTINUED)
PAGE
Section 5.02. Registration of Transfer and Exchange of Certificates...153
Section 5.03. Book-Entry Certificates.................................158
Section 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.......159
Section 5.05. Persons Deemed Owners...................................159
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER....159
Section 6.01. Liability of the Depositor, the Master Servicer
and the Special Servicer................................160
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................160
Section 6.03. Limitation on Liability of the Depositor, the
Master Servicer, the Special Servicer and Others........161
Section 6.04. Depositor, Master Servicer and Special Servicer Not
to Resign...............................................162
Section 6.05. Rights of the Depositor in Respect of the Master
Servicer and the Special Servicer.......................162
ARTICLE VII DEFAULT........................................................162
Section 7.01. Events of Default.......................................162
Section 7.02. Trustee to Act; Appointment of Successor................165
Section 7.03. Notification to Certificateholders......................166
Section 7.04. Waiver of Events of Default.............................166
ARTICLE VIII CONCERNING THE TRUSTEE.........................................166
Section 8.01. Duties of the Trustee...................................166
Section 8.02. Certain Matters Affecting the Trustee...................167
Section 8.03. Trustee not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..........................169
Section 8.04. Trustee May Own Certificates............................169
Section 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee.................................................169
Section 8.06. Eligibility Requirements for Trustee; Assignment
of Rights or Delegation of Duties.......................170
Section 8.07. Resignation and Removal of the Trustee..................171
Section 8.08. Successor Trustee.......................................171
Section 8.09. Merger or Consolidation of Trustee......................172
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(CONTINUED)
PAGE
Section 8.10. Appointment of Co-Trustee or Separate Trustee...........172
Section 8.11. Appointment of Custodians...............................173
Section 8.12. Access to Certain Information...........................174
Section 8.13. Representations and Warranties of the Trustee...........175
Section 8.14. Filings with the Securities and Exchange Commission.....176
ARTICLE IX TERMINATION....................................................177
Section 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans..........................................177
Section 9.02. Additional Termination Requirements.....................179
ARTICLE X ADDITIONAL REMIC PROVISIONS....................................179
Section 10.01. REMIC Administration....................................179
Section 10.02. Depositor, Master Servicer, Special Servicer,
Trustee to Cooperate....................................183
Section 10.03. Grantor Trust Administration............................183
ARTICLE XI MISCELLANEOUS PROVISIONS.......................................184
Section 11.01. Amendment...............................................184
Section 11.02. Recordation of Agreement; Counterparts..................186
Section 11.03. Limitation on Rights of Certificateholders..............187
Section 11.04. GOVERNING LAW...........................................188
Section 11.05. Notices.................................................188
Section 11.06. Severability of Provisions..............................189
Section 11.07. Grant of a Security Interest............................189
Section 11.08. No Partnership..........................................189
Section 11.09. Successors and Assigns; Third Party Beneficiary.........190
Section 11.10. Article and Section Headings............................190
Section 11.11. Notices to the Rating Agencies..........................190
EXHIBITS
Exhibit A-1 Form of Class X-1 Certificate.........................A-1-1
Exhibit A-2 Form of Class X-2 Certificate.........................A-2-1
Exhibit A-3 Form of Class A-1 Certificate.........................A-3-1
Exhibit A-4 Form of Class A-2 Certificate.........................A-4-1
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TABLE OF CONTENTS
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PAGE
Exhibit A-5 Form of Class B Certificate...........................A-5-1
Exhibit A-6 Form of Class C Certificate...........................A-6-1
Exhibit A-7 Form of Class D Certificate...........................A-7-1
Exhibit A-8 Form of Class E Certificate...........................A-8-1
Exhibit A-9 Form of Class F Certificate...........................A-9-1
Exhibit A-10 Form of Class G Certificate..........................A-10-1
Exhibit A-11 Form of Class H Certificate..........................A-11-1
Exhibit A-12 Form of Class J Certificate..........................A-12-1
Exhibit A-13 Form of Class K Certificate..........................A-13-1
Exhibit A-14 Form of Class L Certificate..........................A-14-1
Exhibit A-15 Form of Class M Certificate..........................A-15-1
Exhibit A-16 Form of Class N Certificate..........................A-16-1
Exhibit A-17 Form of Class O Certificate..........................A-17-1
Exhibit A-18 Form of Class P Certificate..........................A-18-1
Exhibit A-19 Form of Class R-I Certificate........................A-19-1
Exhibit A-20 Form of Class R-II Certificate.......................A-20-1
Exhibit A-21 Form of Class R-III Certificate......................A-21-1
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 Form of Master Servicer Report..........................H-1
Exhibit I Certain Reports.........................................I-1
Exhibit J Form of CMSA Periodic Loan File.........................J-1
Exhibit K Form of Investor Certification..........................K-1
Exhibit L Additional Servicing Fee Schedule.......................L-1
Exhibit M CMSA Financial File.....................................M-1
Exhibit N CMSA Property File......................................N-1
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PAGE
Exhibit O Form of Notice and Certification regarding
Defeasance of Mortgage Loans............................O-1
SCHEDULES
Schedule I Mortgage Loan Schedule.............................Sch. I-1
Schedule II Closing Mortgage File Review Certification........Sch. II-1
Schedule III Post-Closing Mortgage File Review Certification..Sch. III-1
Schedule IV Environmental Policy Mortgage Loans...............Sch. IV-1
Schedule V Specified Debt Service Reserve Loans...............Sch. V-1
Schedule VI Specified Letter of Credit Loans..................Sch. VI-1
Schedule VII Specified Earnout Reserve Loans..................Sch. VII-1
Schedule VIII Strip Calculation Schedule......................Sch. VIII-1
Schedule IX Broker Strip Schedule.............................Sch. IX-1
Schedule X Special Trigger Event Loans........................Sch. X-1
-VI-
EXHIBIT A-1
FORM OF CLASS X-1 CERTIFICATE
CLASS X-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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
Date of Pooling and Servicing Agreement:
February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. X-1-__
Certificate Notional Amount of this Class X-1 Certificate
as of the Issue Date: $
Class Notional Amount of all the Class X-1 Certificates as
of the Issue Date: $710,057,789
Aggregate unpaid principal balance of the Mortgage Loans
as of their respective Cut-off Dates, after deducting
payments of principal due on or before such date, whether
or not received: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 UF7
ISIN No. XX000000 UF75
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-1-2
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 and Xxxxx Fargo Bank
Minnesota, National Association, as Trustee. 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 the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th 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 2002-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 Distribution Account and the Collection 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.
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
A-1-3
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. 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 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
A-1-4
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 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 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Percentage Interest 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.
A-1-5
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.
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
---------------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-1 Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
---------------------------------------------
Authorized Signatory
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.
X-0-0
XXXXXXX X-0
FORM OF CLASS X-2 CERTIFICATE
CLASS X-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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
Date of Pooling and Servicing Agreement:
February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. X-2-__
Certificate Notional Amount of this Class X-2
Certificate as of the Issue Date:$
Class Notional Amount of all the Class X-2
Certificates as of the Issue Date: $416,382,000
Aggregate unpaid principal balance of the
Mortgage Loans as of their respective Cut-off
Dates, after deducting payments of principal
due on or before such date, whether or not
received: $416,382,000
Trustee: Xxxxx Fargo Bank Minnesota,
National Association
CUSIP No. 361849 UG5
ISIN No. XX000000 UG58
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-2-1
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-2-2
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 and Xxxxx Fargo Bank
Minnesota, National Association, as Trustee. 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 the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th 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 2002-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 Distribution Account and the Collection 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.
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
A-2-3
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. 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 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.
A-2-4
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 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 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Percentage Interest 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.
A-2-5
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-2-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-2 Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Signatory
A-2-7
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-1 CERTIFICATE
CLASS A-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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:
5.785% per annum
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage
Loan, the Due Date for such Mortgage Loan in
February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. A-1-1
Certificate Principal Balance of this Class A-1
Certificate as of the Issue Date: $144,484,000
Class Principal Balance of all the Class A-1
Certificates as of the Issue Date: $144,484,000
Aggregate unpaid principal balance of the
Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota,
National Association
CUSIP No. 361849 TP7
ISIN No. XX000000 TP75
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,
A-3-1
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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, CLASS O AND CLASS P 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
A-3-2
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer and Xxxxx Fargo Bank Minnesota, National Association, as Trustee. 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 the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th 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 2002-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 Distribution Account and the Collection 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,
A-3-3
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
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 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
A-3-4
Servicer, the Trustee, 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Percentage Interest 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.
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Signatory
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 A-2 CERTIFICATE
CLASS A-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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:
6.278% per annum
Date of Pooling and Servicing Agreement:
February 1, 2002
Cut-off Date: With respect to any Mortgage
Loan, the Due Date for such Mortgage Loan in
February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. A-2-
Certificate Principal Balance of this Class A-2
Certificate as of the Issue Date: $
Class Principal Balance of all the Class A-2
Certificates as of the Issue Date: $405,810,000
Aggregate unpaid principal balance of the
Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota,
National Association
CUSIP No. 361849 TQ5
ISIN No. XX000000 TQ59
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-4-1
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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, CLASS O AND CLASS P 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
A-4-2
and Xxxxx Fargo Bank Minnesota, National Association, as Trustee. 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 the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th 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 2002-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 Distribution Account and the Collection 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-4-3
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 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 Certificate Registrar or any such agent shall be affected by notice
to the contrary.
A-4-4
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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the within-
mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:________________________
Authorized Signatory
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 B CERTIFICATE
CLASS B MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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:
the lesser of 6.453% per annum or the Weighted Average Net
Mortgage Rate.
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. B-1
Certificate Principal Balance of this Class B Certificate
as of the Issue Date: $29,290,000
Class Principal Balance of all the Class B Certificates as
of the Issue Date: $29,290,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 TR3
ISIN No. XX000000 TR33
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
A-5-1
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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 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, CLASS O AND CLASS P 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.
A-5-2
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 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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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.
A-5-3
The Depositor's Mortgage Pass-Through Certificates, Series
2000-C3 (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 Distribution Account and the
Collection 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.
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 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 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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-5-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:________________________
Authorized Signatory
A-5-6
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)
1.
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
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 2002-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:
the lesser of 6.551% per annum or the Weighted Average Net
Mortgage Rate
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. C-1
Certificate Principal Balance of this Class C Certificate
as of the Issue Date: $9,763,000
Class Principal Balance of all the Class C Certificates as
of the Issue Date: $9,763,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 TS1
ISIN No. XX000000 TS16
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-6-1
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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-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, CLASS O AND CLASS P 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
A-6-2
that certain beneficial ownership interest evidenced by all the Class C
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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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
2002-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 Distribution Account and the
Collection
A-6-3
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 Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the
A-6-4
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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-6-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:________________________
Authorized Signatory
A-6-6
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 2002-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:
the lesser of 6.659% per annum or the Weighted Average Net
Mortgage Rate
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. D-1
Certificate Principal Balance of this Class D Certificate
as of the Issue Date: $15,977,000
Class Principal Balance of all the Class D Certificates as
of the Issue Date: $15,977,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 TT9
ISIN No. XX000000 TT98
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,
A-7-1
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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-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, CLASS O AND CLASS P 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
A-7-2
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 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
and Xxxxx Fargo Bank Minnesota, National Association, as Trustee. 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 the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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
2002-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting
A-7-3
the Mortgage Loans, all as more specifically set forth herein and in the
Agreement. As provided in the Agreement, withdrawals from the Certificate
Distribution Account and the Collection 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-7-4
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, 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 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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-7-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-7-6
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 E CERTIFICATE
CLASS E MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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:
the lesser of 6.787% per annum or the Weighted Average
Net Mortgage Rate
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. E-1
Certificate Principal Balance of this Class E Certificate
as of the Issue Date: $8,875,000
Class Principal Balance of all the Class E Certificates as
of the Issue Date: $8,875,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 TU6
ISIN No. XX000000 TU61
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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-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, CLASS O AND CLASS P 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.
A-8-2
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
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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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.
A-8-3
The Depositor's Mortgage Pass-Through Certificates, Series
2002-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 Distribution Account and the
Collection 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-8-4
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, 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 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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-8-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-8-6
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 F CERTIFICATE
CLASS F MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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:
the lesser of 6.944% per annum or the Weighted Average
Net Mortgage Rate
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. F-1
Certificate Principal Balance of this Class F Certificate
as of the Issue Date: $12,426,000
Class Principal Balance of all the Class F Certificates as
of the Issue Date: $12,426,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 TV4
ISIN No. XX000000 TV45
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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-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, CLASS O AND CLASS P CERTIFICATES OF THE SAME
A-9-2
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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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 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.
A-9-3
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
2002-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 Distribution Account and the
Collection 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 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
A-9-4
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 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 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, and (ii) the purchase by the Master Servicer 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. The
A-9-5
Agreement permits, but does not require, the Depositor or the Master Servicer to
purchase from the Trust Fund all Mortgage Loans and any REO Properties remaining
therein. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-9-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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(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:
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Dated:
------------------------------------------
Signature by or on behalf of Assignor
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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 G CERTIFICATE
CLASS G MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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:
the lesser of 6.971% per annum or the Weighted Average
Net Mortgage Rate
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. G-1
Certificate Principal Balance of this Class G Certificate
as of the Issue Date: $10,651,000
Class Principal Balance of all the Class G Certificates as
of the Issue Date: $10,651,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 TW2
ISIN No. XX000000 TW28
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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-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, CLASS O AND CLASS P CERTIFICATES OF THE
A-10-2
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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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 address of the
Holder that surrenders this Certificate as such address last appeared in the
A-10-3
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
2002-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 Distribution Account and the
Collection 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 believed to be
a qualified institutional buyer that purchases for its own account or for
A-10-4
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. 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 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 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
A-10-5
thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-10-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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(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:
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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 H CERTIFICATE
CLASS H MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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:
the Weighted Average Net Mortgage Rate less 0.07%
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. H-1
Certificate Principal Balance of this Class H Certificate
as of the Issue Date: $8,876,000
Class Principal Balance of all the Class H Certificates as
of the Issue Date: $8,876,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 TX0
ISIN No. XX000000 TX01
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-11-1
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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-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, CLASS O AND CLASS P CERTIFICATES OF THE SAME
A-11-2
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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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 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.
A-11-3
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
2002-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 Distribution Account and the
Collection 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 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
A-11-4
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 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 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, and (ii) the purchase by the Master Servicer 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. The
A-11-5
Agreement permits, but does not require, the Depositor or the Master Servicer to
purchase from the Trust Fund all Mortgage Loans and any REO Properties remaining
therein. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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-11-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-11-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
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(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:
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Dated:
------------------------------------------
Signature by or on behalf of Assignor
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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-11-8
EXHIBIT A-12
FORM OF CLASS J CERTIFICATE
CLASS J MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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 6.089% per annum or the Weighted Average Net
Mortgage Rate.
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. J-1
Certificate Principal Balance of this Class J Certificate
as of the Issue Date: $14,201,000
Class Principal Balance of all the Class J Certificates as
of the Issue Date: $14,201,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 TY8
ISIN No. XX000000 TY83
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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-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, CLASS O AND CLASS P CERTIFICATES OF THE SAME
A-12-2
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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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 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.
A-12-3
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
2002-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 Distribution Account and the
Collection 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 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
A-12-4
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.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, 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 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-12-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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(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 K CERTIFICATE
CLASS K MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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 6.089% per annum or the Weighted Average Net
Mortgage Rate.
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. K-1
Certificate Principal Balance of this Class K Certificate
as of the Issue Date: $12,426,000
Class Principal Balance of all the Class K Certificates as
of the Issue Date: $12,426,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 TZ5
ISIN No. XX000000 TZ58
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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-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, CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES ARE
A-13-2
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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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 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.
A-13-3
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
2002-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 Distribution Account and the
Collection 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 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
A-13-4
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.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, 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 Certificate Registrar or any such agent shall be affected by
notice to the contrary.
A-13-5
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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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-13-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-13-7
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-13-8
EXHIBIT A-14
FORM OF CLASS L CERTIFICATE
CLASS L MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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 6.089% per annum or the Weighted Average Net
Mortgage Rate.
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. L-1
Certificate Principal Balance of this Class L Certificate
as of the Issue Date: $5,326,000
Class Principal Balance of all the Class L Certificates as
of the Issue Date: $5,326,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 UA8
ISIN No. XX000000 UA88
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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-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, CLASS O AND CLASS P CERTIFICATES OF THE SAME
A-14-2
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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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 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.
A-14-3
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
2002-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 Distribution Account and the
Collection 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 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
A-14-4
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.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, 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 Certificate Registrar or any such agent shall be affected by
notice to the contrary.
A-14-5
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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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-14-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-14-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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----------------------------------------------------------------------------------
----------------------------------------------------------------------------------
(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-14-8
EXHIBIT A-15
FORM OF CLASS M CERTIFICATE
CLASS M MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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 6.089% per annum or the Weighted Average Net
Mortgage Rate.
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. M-1
Certificate Principal Balance of this Class M Certificate
as of the Issue Date: $5,325,000
Class Principal Balance of all the Class M Certificates as
of the Issue Date: $5,325,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 UB6
ISIN No. XX000000 UB61
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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-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 PRINCIPAL
BALANCES OF THE CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES ARE
A-15-2
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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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 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.
A-15-3
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
2002-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 Distribution Account and the
Collection 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 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
A-15-4
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.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, 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 Certificate Registrar or any such agent shall be affected by
notice to the contrary.
A-15-5
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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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-15-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-15-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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----------------------------------------------------------------------------------
----------------------------------------------------------------------------------
(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-15-8
EXHIBIT A-16
FORM OF CLASS N CERTIFICATE
CLASS N MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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 6.089% per annum or the Weighted Average Net
Mortgage Rate.
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. N-1
Certificate Principal Balance of this Class N Certificate
as of the Issue Date: $7,988,000
Class Principal Balance of all the Class N Certificates as
of the Issue Date: $7,988,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 UC4
ISIN No. XX000000 UC45
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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-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-16-2
PRINCIPAL BALANCES OF THE CLASS O AND CLASS P 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 Certificate (obtained by dividing
the principal balance of this Class N Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class N Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class N
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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class N 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-16-3
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
2002-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 Distribution Account and the
Collection 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 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 Certificates are exchangeable for new Class N 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 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 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 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 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 Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class N 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
A-16-4
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 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 Certificate without registration
or qualification. Any Class N Certificateholder desiring to effect such a
transfer shall, and by the acceptance of its Class N 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 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 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 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 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 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
A-16-5
Servicer, the Trustee, 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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-16-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-16-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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----------------------------------------------------------------------------------
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(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:
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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-16-8
EXHIBIT A-17
FORM OF CLASS O CERTIFICATE
CLASS O MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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 6.089% per annum or the Weighted Average Net
Mortgage Rate.
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. O-1
Certificate Principal Balance of this Class O Certificate
as of the Issue Date: $3,551,000
Class Principal Balance of all the Class O Certificates as
of the Issue Date: $3,551,000
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 UD2
ISIN No. XX000000 UD28
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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 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-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 CERTIFICATES OF THE SAME
SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE
A-17-2
PRINCIPAL BALANCE OF THE CLASS P 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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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 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-17-3
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
2002-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 Distribution Account and the
Collection 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 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
A-17-4
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. 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.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, 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
A-17-5
Servicer, the Trustee, 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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-17-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-17-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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(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-17-8
EXHIBIT A-18
FORM OF CLASS P CERTIFICATE
CLASS P MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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 6.089% per annum or the Weighted Average Net
Mortgage Rate
Date of Pooling and Servicing Agreement: February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. P-1
Certificate Principal Balance of this Class P Certificate
as of the Issue Date: $15,088,789
Class Principal Balance of all the Class P Certificates as
of the Issue Date: $15, 088,789
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 UE0
ISIN No. XX000000 UE01
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,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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 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-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 AND CLASS O CERTIFICATES OF
THE SAME SERIES.
A-18-2
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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th 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 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
A-18-3
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
2002-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 Distribution Account and the
Collection 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 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
A-18-4
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.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, 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 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
A-18-5
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, and (ii) the purchase by the Master
Servicer 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. The
Agreement permits, but does not require, the Depositor or the Master Servicer to
purchase from the Trust Fund all Mortgage Loans and any REO Properties remaining
therein. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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-18-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
A-18-7
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:
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-----------------------------------------------------------------------------------
----------------------------------------------------------------------------------
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-18-8
EXHIBIT A-19
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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:
February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. R-I-1
Percentage Interest evidenced by this Certificate in the related Class: 100%
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 UH3
ISIN No. XX000000 UH32
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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, CLASS O AND CLASS P CERTIFICATES OF THE SAME
SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
A-19-1
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 First Union National Bank 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 and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. 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 the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified
A-19-2
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
2002-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 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
A-19-3
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 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
A-19-4
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 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.
A-19-5
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 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 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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.
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.
A-19-6
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-19-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
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 R-II CERTIFICATE
CLASS R-II MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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:
February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. R-II-1
Percentage Interest evidenced by this Certificate in the related Class: 100%
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 000000 XX0
ISIN No. XX000000 UJ97
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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, CLASS O AND CLASS P CERTIFICATES OF THE SAME
SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
A-20-1
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 First Union National Bank 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 and Xxxxx Fargo Bank
Minnesota, National Association, as Trustee. 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 the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified
A-20-2
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
2002-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 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
A-20-3
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 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
A-20-4
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 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.
A-20-5
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 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 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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.
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.
A-20-6
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-20-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
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 R-III CERTIFICATE
CLASS R-III MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-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:
February 1, 2002
Cut-off Date: With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in February 2002
Issue Date: February 5, 2002
First Distribution Date: March 15, 2002
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. R-III-1
Percentage Interest evidenced by this Certificate in the related Class: 100%
Aggregate unpaid principal balance of the Mortgage Pool 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: $710,057,789
Trustee: Xxxxx Fargo Bank Minnesota, National Association
CUSIP No. 361849 UK6
ISIN No. XX000000 UK60
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION 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-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, CLASS O AND CLASS P CERTIFICATES OF THE SAME
SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
A-21-1
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 First Union National Bank 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 and Xxxxx Fargo Bank Minnesota, National Association, as Trustee. 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 the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified
A-21-2
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
2002-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 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
A-21-3
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 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
A-21-4
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 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.
A-21-5
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 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 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, and (ii) the purchase by the Master Servicer 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. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
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 and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interest 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.
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.
A-21-6
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-21-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:______________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
Dated: February , 2002
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:______________________________________________
Authorized Signatory
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 B-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS),
GMAC Mortgage Pass-Through Certificates Series 2002-C1
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2002-C1, [Class X-1] [Class
X-2] [Class F] [Class G] [Class H] [Class J] [Class K] [Class
L] [Class M] [Class N] [Class O] [Class P] [Class R-I] [Class
R-II] [Class R-III], [having an initial principal
balance/initial notional amount as of February 5, 2002 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 February 1, 2002,
among GMAC Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial
Mortgage Corporation, as Master Servicer and Special Servicer and Xxxxx Fargo
Bank Minnesota, National Association, as Trustee. 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
B-1-1
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 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
B-1-2
EXHIBIT B-2
FORM OF TRANSFEREE CERTIFICATE
[Date]
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS),
GMAC Mortgage Pass-Through Certificates Series 2002-C1
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2002-C1, [Class X-1] [Class
X-2] [Class F] [Class G] [Class H] [Class J] [Class K] [Class
L] [Class M] [Class N] [Class O] [Class P] [Class R-I] [Class
R-II] [Class R-III], [having an initial principal
balance/initial notional amount as of February 5, 2002 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 February 1, 2002 among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer and Xxxxx Fargo Bank
Minnesota, National Association, as Trustee. 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.
B-2-1
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.
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 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 and/or
Class P 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 Transferee
________________________________________
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
B-2-3
ANNEX 1 TO EXHIBIT B-2
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 the date of sale of the Certificate in the case of a U.S.
savings and loan association, and not more
--------------
(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 discretionary basis at least $10,000,000
in securities.
B-2-4
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 Transferor
________________________________________________
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-2-6
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-2-7
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
2002-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 remain liable for any
taxes due with respect to the income on such residual interest, unless no
C-1-1
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.
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 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
C-1-2
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 section 860L(g) of the Code 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) the Transferee is not a foreign branch
of a domestic corporation, the transfer does not involve a transfer or
assignment to a foreign branch of a domestic corporation (or any other
arrangement by which any Residual Certificate is at any time subject to net tax
by a foreign country or U.S. possession), and the Transferee will not hereafter
engage in any such transfer or assignment (or any such arrangement).](1)
--------
(1) Bracketed text may be used if the Transferee is relying on the "non-formula
safe harbor" currently available in Revenue Procedure 2001-12.
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
COUNTY 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]
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS),
GMAC Mortgage Pass-Through Certificates Series 2002-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 February 1, 2002 (the "Pooling and Servicing Agreement"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer and Xxxxx Fargo Bank
Minnesota, National Association, as Trustee. 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.
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
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
C-2-1
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"), and (II) utilizing a
discount rate for present valuations equal to the applicable Federal rate
prescribed by Section 1274(d) of the Code compounded semi-annually (or a lower
discount rate based on the Transferee having demonstrated that it regularly
borrows, in the course of its trade or business, substantial funds at such lower
rate from unrelated third parties)), 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.
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" with respect to such transfer.
Very truly yours,
Print Name of Transferor
____________________________________
By: _______________________________
Name:
Title:
--------
(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 section 860L(g) of the Code 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 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 is not a foreign
branch of a domestic corporation, and (V) the transfer does not involve a
transfer or assignment to a foreign branch of a domestic corporation (or any
other arrangement by which any Residual Certificate is at any time subject to
net tax by a foreign country or U.S. possession) and the Transferee will not
hereafter engage in any such transfer or assignment (or any such arrangement).
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 paragraph 11 and 12
of the Transferee's Transfer Affidavit and Agreement.
C-2-2
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
E-1
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, 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 February 1, 2002, among the Debtor as
Depositor, the Secured Party as Trustee and GMAC Commercial Mortgage Corporation
as Master Servicer and Special Servicer with respect to Mortgage Pass-Through
Certificates, Series 2002-C1 (the "Pooling and Servicing Agreement (Series
2002-C1)"), including:
(1) the Mortgage Loans listed on the Mortgage Loan Schedule attached
hereto;
(2) 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);
(3) all amounts held from time to time in the Collection Account, the
Certificate Distribution Account, the Excess Liquidation Proceeds
Reserve Account, the Interest Reserve Account and the REO 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 such 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 2002-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, THE MORTGAGE NOTES, THE RELATED MORTGAGES
AND THE RELATED MORTGAGE FILES, AND THIS 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
E-2
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 pursuant to the Pooling and Servicing Agreement
(Series 2002-C1).
E-3
MORTGAGE LOAN SCHEDULE TO UCC-1 FINANCING STATEMENT
SEE SCHEDULE I
E-4
EXHIBIT F
METHODOLOGY TO NORMALIZE NET OPERATING INCOME AND DEBT
SERVICE COVERAGE
o 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.
o GMACCM chooses to use the actual management fee stated in the financial
statement.
o 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.
o 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.
o 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.
o 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.
o 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.
o 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.
o 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
FORM OF MASTER SERVICER REPORT
H-1
EXHIBIT I
CERTAIN REPORTS
I-1
EXHIBIT J
FORM OF CMSA PERIODIC LOAN FILE
J-1
EXHIBIT K
FORM OF INVESTOR CERTIFICATION
[Date]
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS),
GMAC Mortgage Pass-Through Certificates Series 2002-C1
In accordance with Section 4.02 of the Pooling and Servicing Agreement,
dated as of February 1, 2002 (the "Agreement"), by and among GMAC Commercial
Mortgage Securities, Inc. as Depositor, GMAC Commercial Mortgage Corporation as
Master Servicer and Special Servicer and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee (the "Trustee"), with respect to the GMAC Commercial
Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 2002-C1
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
[The undersigned is a beneficial owner or prospective purchaser of the
Class ___ Certificates / The undersigned is the Co-Lender].
The undersigned is requesting a password pursuant to Section 4.02 of
the Agreement for access to certain information (the "Information") on the
Trustee's website and/or is requesting the information identified on the
schedule attached hereto (also, the "Information") pursuant to Section 4.02 of
the Agreement.
In consideration of the Trustee's disclosure to the undersigned of the
Information, or the password in connection therewith, 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/acting as Co-Lender], 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, 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.
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 "Securities Act"), or the Securities Exchange Act of 1934,
as amended, or would require registration of any Certificate pursuant to Section
5 of the Securities Act.
K-1
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 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.
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 [or Co-
Lender]
By:______________________________________________
Title:___________________________________________
K-2
EXHIBIT L
ADDITIONAL SERVICING FEE SCHEDULE
LOAN NUMBER PROPERTY NAME CUT-OFF DATE BALANCE SUB-SERVICING FEE
09-0001486 Pondfield Apartments 1,544,169 0.08%
09-0001512 Oviedo Crossroads Shopping Center 3,487,853 0.08%
09-0000000 Burbank Village Apartments 2,492,441 0.08%
09-0001521 Franklin Centre 5,800,000 0.06%
09-0001522 Spring Valley Mobile Home Park 2,928,636 0.06%
09-0001525 Deer Valley Plaza 7,480,492 0.06%
09-0001529 Wrights Crossing Business Park 2,994,201 0.08%
09-0001531 King Xxxxx Xxxx XX 3,991,990 0.08%
09-0001547 Gallery Place Apartments - Phase I 3,892,283 0.07%
L-1
EXHIBIT M
CMSA FINANCIAL FILE
M-1
EXHIBIT N
CMSA PROPERTY FILE
N-1
EXHIBIT O
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 "Servicer") under the Pooling and Servicing Agreement
dated as of February 1, 2002 (the "Pooling and Servicing Agreement"),
among the Servicer, GMAC Commercial Mortgage Corporation, as Special
Servicer and Xxxxx Fargo Bank Minnesota, National Association, as
Trustee.
Date: _____________________, 20__.
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates Series 2002-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 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.
O-1
(2) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the 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 Servicer received an opinion of counsel (from counsel
approved by Servicer in accordance with the Servicing Standard) that the
defeasance will not result in an adverse REMIC Event.
e. The 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 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.
O-2
f. The Servicer received a broker or similar confirmation of
the credit, or the accountant's letter described below contained statements that
it reviewed a 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 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 Servicer received from the Mortgagor written
confirmation from a firm of independent certified public accountants, who were
approved by 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 Servicer received opinions from counsel, who were
approved by 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").
O-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, 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 Exhibit B 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 Servicer as part
of the 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 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 Exhibit B to you
upon request.
O-4
IN WITNESS WHEREOF, the Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:_____________________________
Name:
Title:
O-5
EXHIBIT P
SERVICER WATCH LIST
---------------------------------------------------------------------------- ------- -----------------------------------------
Category Code Removal from the Watch List
---------------------------------------------------------------------------- ------- -----------------------------------------
DSCR/NOI 2
--------
---------------------------------------------------------------------------- ------- -----------------------------------------
A mortgage loan that has a then current debt service coverage ratio that is 2A Debt service coverage ratio is greater
less than 1.10x, other than a CTL loan. than 1.10x for two consecutive calendar
quarters.
---------------------------------------------------------------------------- ------- -----------------------------------------
Mortgage loan for which NOI for the most recent 12 months period has fallen 2B NOI greater than underwritten NOI.
25% or more below underwritten NOI.
---------------------------------------------------------------------------- ------- -----------------------------------------
OCCUPANCY 4
---------
---------------------------------------------------------------------------- ------- -----------------------------------------
Except for hotel properties, the occupancy rate or the effective gross 4A Occupancy, EGI or Rev Par, as applicable,
income ("EGI") of the related mortgaged property over a trailing over a 12-month period are greater than
12-month period (or trailing two calendar quarter during the first 85% of the underwritten occupancy, EGI
year after origination) is 15% less than underwritten EGI or occupancy or Rev Par.
(multiplicative basis). In the case of a hotel property, the average
daily occupancy rate or the Rev Par over a trailing 12-month period is
15% less than underwritten occupancy.
---------------------------------------------------------------------------- ------- -----------------------------------------
Any of the three largest tenants leases, representing 25% or more of 4B The tenant space(s) represented by the
the aggregate net rentable area ("NRA") or leases representing 20% or three largest tenants, representing 25%
more of the total revenue from the related property in the current or more of the NRA or leases representing
year have expired, been terminated, are in default, are dark, will 20% or more of the total revenue from the
expire in the next three months (without being replaced by one or more related property have been renewed and
comparable tenants and leases), are the subject of bankruptcy or the tenant(s) are in place, open for
similar proceedings or the servicer has received written notice of the business and paying rent.
tenant's intent to vacate the mortgaged property.
---------------------------------------------------------------------------- ------- -----------------------------------------
DELINQUENCY/DEFAULT 1
-------------------
---------------------------------------------------------------------------- ------- -----------------------------------------
Mortgage loan is 30 days or more delinquent. 1A Mortgage loan is no longer delinquent.
---------------------------------------------------------------------------- ------- -----------------------------------------
Mortgage loan is late (30 days of more) in making its scheduled monthly 1B Mortgagor has made three consecutive
payment three or more times in the preceding twelve months. payments.
---------------------------------------------------------------------------- ------- -----------------------------------------
Borrower is delinquent in the payment of taxes, and servicer has made an 1D Taxes are paid in full.
advance of such amounts pursuant to the pooling agreement.
---------------------------------------------------------------------------- ------- -----------------------------------------
PROPERTY 5
--------
---------------------------------------------------------------------------- ------- -----------------------------------------
Servicer has knowledge of material deferred maintenance, material damage or 5A Cure deferred maintenance, damage or
waste at the related mortgaged property (other than as have been escrowed at waste.
closing)
---------------------------------------------------------------------------- ------- -----------------------------------------
Mortgage loan as to which any required inspection of the related 5B Cure problem indicated by the servicer.
mortgaged property conducted by or on behalf of the servicer indicates
a problem that the servicer determines can reasonably be expected to
materially and adversely affect the cash flow generated by such
mortgaged property.
---------------------------------------------------------------------------- ------- -----------------------------------------
Material non-completion of repairs within specified time frames as 5C Completion of repair
required at the time of the origination of the mortgage loan for
mortgage loans with escrows of at least the lesser of (i) 5% of the
loan balance or (ii) $100,000.
---------------------------------------------------------------------------- ------- -----------------------------------------
BORROWER 6
--------
---------------------------------------------------------------------------- ------- -----------------------------------------
Mortgagor does not allow access to the applicable property for its 6B Site inspection is completed.
required site inspection.
---------------------------------------------------------------------------- ------- -----------------------------------------
Ground Lease 3
------------
---------------------------------------------------------------------------- ------- -----------------------------------------
Ground lease default has occurred or ground lease expiration will occur 3A Cure ground lease default or exercise
within six months to the extent the Master Servicer has knowledge of option/sign new ground lease.
any such default or expiration.
---------------------------------------------------------------------------- ------- -----------------------------------------
RESERVES
--------
---------------------------------------------------------------------------- ------- -----------------------------------------
Servicer has made an unplanned draw on any letter of credit securing such 7A Mortgagor has made three consecutive
mortgage loan to pay debt service on such mortgage loan, unless such loan payments.
is an Additional Collateral Loan. Watch list explanation will include a
brief description of the circumstances that in the servicer's good faith
judgement entitled servicer to make such draw.
---------------------------------------------------------------------------- ------- -----------------------------------------
The establishment of a reserve, letter of credit or a lockbox for a 7B Cure of the event that required action
mortgage loan after the closing date, other than anticipated escrows under the mortgage loan documents,
pursuant to the mortgage loan documents. satisfying such mortgage loan
provisions, or after six consecutive
monthly payments
---------------------------------------------------------------------------- ------- -----------------------------------------
The Servicer shall identify which trigger(s) has/have been satisfied and the date the loan was added to the watch list.
A file format will also be provided at a later date for the reporting of watch list items.
P-1
SCHEDULE I
MORTGAGE LOAN SCHEDULE
SCHEDULE I-1
SCHEDULE II
CLOSING MORTGAGE FILE REVIEW CERTIFICATION
SCHEDULE II-1
SCHEDULE III
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
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement, dated as of February 1,
2002 ("Pooling and Servicing Agreement") relating to GMAC
Commercial Mortgage Securities Inc., Mortgage Pass-Through
Certificates, Series 2002-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]
SCHEDULE III-1
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By: _____________________________
Name:
Title:
SCHEDULE III-2
SCHEDULE IV
ENVIRONMENTAL POLICY MORTGAGE LOANS
LOAN NUMBER NAME
32253 0000 X. Xxxxxxxx
00000 Xxxxxxxxxx Xxxxxx Shopping Center
25879 Xxxxxx Press
31712 Xxxxxx Industrial Properties
00000 Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00000 0000 Xxxxx Xxxxxxx Xxxxxx
00000 Xxxxxxxx Shopping Plaza
DBM15325 68th Street Square
09-0001515 Orangethorpe Plaza
SCHEDULE IV-1
SCHEDULE V
SPECIFIED DEBT SERVICE RESERVE LOANS
LOAN NUMBER NAME
DBM16147 Kapolei Medical Park
DBM15452 0000 Xxxxxxxx
DBM15975 G&L Realty Portfolio
DBM16055 Parkaire Landing Shopping Center
DBM16390 Piper's Creek Villas Apartments
SCHEDULE V-1
Schedule VI
SPECIFIED LETTER OF CREDIT LOANS
LOAN NUMBER NAME
09-0001524 Xxxxxxx Plaza Apartments
09-0001520 Park at Clearwater Apartments - Phase I
09-0001542 Xxxxxxxx Xxxxxx Xxxxxxxxxx
00-0000000 Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxx
09-0001515 Orangethorpe Plaza
DBM15831 Xxxx Xxxxxxxxxx Xxxx
00000 0000 Xxxxx Xxxxxxx Street
27320 Fox Office Building
31688 Crossroads at Xxxxxxxxxx
00000 Xxxxxxxx-Xxxxxxxx Xxxx
SCHEDULE VI-1
Schedule VII
SPECIFIED EARNOUT RESERVE LOANS
LOAN NUMBER NAME
09-0001524 Xxxxxxx Plaza Apartments
31712 Gisbon Industrial Properties
00000 Xxxxxxxx Xxxxxxx
DBM15831 Boca Industrial Park
DBM16147 Kapolei Medical Park
DBM15975 G&L Realty Portfolio
SCHEDULE VII-1
SCHEDULE VIII
STRIP CALCULATION SCHEDULE
DISTRIBUTION DATE
-----------------
March 2002........................................................... 7.2512
April 2002........................................................... 7.4929
May 2002............................................................. 7.2512
June 2002............................................................ 7.4929
July 2002............................................................ 7.2511
August 2002.......................................................... 7.4929
September 2002....................................................... 7.4928
October 2002......................................................... 7.2511
November 2002........................................................ 7.4928
December 2002........................................................ 7.2510
January 2003......................................................... 7.2510
February 2003........................................................ 7.2510
March 2003........................................................... 7.2515
April 2003........................................................... 7.4927
May 2003............................................................. 7.2509
June 2003............................................................ 7.4926
July 2003............................................................ 7.2509
August 2003.......................................................... 7.4926
September 2003....................................................... 7.4926
October 2003......................................................... 7.2508
November 2003........................................................ 7.4926
December 2003........................................................ 7.2508
January 2004......................................................... 7.4926
February 2004........................................................ 7.2508
March 2004........................................................... 7.2510
April 2004........................................................... 7.4926
May 2004............................................................. 7.2509
June 2004............................................................ 7.4927
July 2004............................................................ 7.2509
August 2004.......................................................... 7.4927
September 2004....................................................... 7.4927
October 2004......................................................... 7.2509
November 2004........................................................ 7.4927
December 2004........................................................ 7.2509
January 2005......................................................... 7.2509
February 2005........................................................ 7.2510
March 2005........................................................... 7.2516
April 2005........................................................... 7.4928
May 2005............................................................. 7.2510
June 2005............................................................ 7.4928
July 2005............................................................ 7.2510
August 2005.......................................................... 7.4928
September 2005....................................................... 7.4928
October 2005......................................................... 7.2510
November 2005........................................................ 7.4928
December 2005........................................................ 7.2511
January 2006......................................................... 7.2511
February 2006........................................................ 7.2511
March 2006........................................................... 7.2518
April 2006........................................................... 7.4914
SCHEDULE VIII-1
DISTRIBUTION DATE
-----------------
May 2006............................................................. 7.2488
June 2006............................................................ 7.4905
July 2006............................................................ 7.2460
August 2006.......................................................... 7.4868
September 2006....................................................... 7.4905
October 2006......................................................... 7.2488
November 2006........................................................ 7.4905
December 2006........................................................ 7.2488
January 2007......................................................... 7.2488
February 2007........................................................ 7.2488
March 2007........................................................... 7.2507
April 2007........................................................... 7.4906
May 2007............................................................. 7.2489
June 2007............................................................ 7.4906
July 2007............................................................ 7.2489
August 2007.......................................................... 7.4906
September 2007....................................................... 7.4906
October 2007......................................................... 7.2489
November 2007........................................................ 7.4907
December 2007........................................................ 7.2489
January 2008......................................................... 7.4907
February 2008........................................................ 7.2489
March 2008........................................................... 7.2503
April 2008........................................................... 7.4919
May 2008............................................................. 7.2501
June 2008............................................................ 7.4886
July 2008............................................................ 7.2458
August 2008.......................................................... 7.4875
September 2008....................................................... 7.4898
October 2008......................................................... 7.2470
November 2008........................................................ 7.4887
December 2008........................................................ 7.2510
January 2009......................................................... 7.2510
February 2009 and Thereafter......................................... 7.2510
SCHEDULE VIII-2
SCHEDULE IX
BROKER STRIP SCHEDULE
LOAN NUMBER PROPERTY NAME CUT-OFF DATE BALANCE SUB-SERVICING FEE
09-0001498 Heatherwood and Kensington Apartments 4,678,620 0.05%
09-0001511 Oakcrest Estates Mobile Home Park 6,253,621 0.02%
09-0001514 Sterling Business Park 4,482,766 0.08%
09-0001515 Orangethorpe Plaza 6,078,996 0.07%
09-0001526 Falls of West Oaks Apartments 6,127,571 0.07%
09-0001535 Southlake Town Square I 22,712,357 0.07%
09-0001540 Pepper Pike Place 6,494,776 0.05%
09-0001542 Highland Towers Apartments 3,192,776 0.05%
SCHEDULE IX-1
SCHEDULE X
SPECIFIED TRIGGER EVENT LOANS
LOAN NUMBER NAME
09-0001515 Orangethorpe Plaza
09-0001508 Xxxxx Life Building
09-0001531 King Xxxxx Xxxx XX
09-0001535 Xxxxxxxxx Xxxx Xxxxxx
00-0000000 Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxx
DBM 00000 Xxxxxxx Xxxxxxx Xxxx
DBM 15452 0000 Xxxxxxxx
DBM 15975 G&L Realty Portfolio
DBM 16055 Parkaire Landing Shopping Center
DBM 16390 Piper's Creek Villas Apartments
