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 and Serviced Companion Loan Paying Agent,
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2003
-----------------------------------------------
$1,290,666,634
Mortgage Pass-Through Certificates
Series 2003-C2
Table of Contents
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ARTICLE I DEFINITIONS.................................................................................7
Section 1.01 Defined Terms.....................................................................7
Section 1.02 Certain Calculations.............................................................86
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES............................87
Section 2.01 Establishment of Trust; Conveyance of Mortgage Loans.............................87
Section 2.02 Acceptance by Trustee............................................................90
Section 2.03 Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans for
Defects in Mortgage Files and Breaches of Representations and Warranties.........94
Section 2.04 Issuance of Class R-I Certificates; Creation of REMIC I Regular Interests........99
Section 2.05 Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by the
Trustee..........................................................................99
Section 2.06 Issuance of Class R-II Certificates; Creation of REMIC II Regular Interest.......99
Section 2.07 Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by
Trustee..........................................................................99
Section 2.08 Issuance of REMIC III Certificates..............................................100
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND............................................100
Section 3.01 Servicing and Administration of the Mortgage Loans..............................100
Section 3.02 Collection of Mortgage Loan and Serviced Companion Loan Payments................103
Section 3.03 Collection of Taxes, Assessments and Similar Items; Servicing Accounts
and Reserve Accounts............................................................104
Section 3.04 Certificate Account, Distribution Account, Interest Reserve Account and
Serviced Whole Loan Custodial Accounts..........................................105
Section 3.05 Permitted Withdrawals From the Certificate Account, the Distribution
Account, the Interest Reserve Account, the Excess Liquidation Proceeds
Reserve Account and Serviced Whole Loan Custodial Accounts......................111
Section 3.06 Investment of Funds in the Certificate Account, the Distribution Account,
the Excess Liquidation Proceeds Reserve Account, the Interest Reserve
Account, the REO Account and the Serviced Whole Loan Custodial Accounts.........120
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions and Fidelity
Coverage........................................................................122
Section 3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements; Subordinate
Financing; Defeasance...........................................................126
Section 3.09 Realization Upon Defaulted Mortgage Loans.......................................130
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.................................133
Section 3.11 Servicing Compensation; Nonrecoverable Servicing Advances.......................134
Section 3.12 Inspections; Collection of Financial Statements.................................139
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Section 3.13 Annual Statement as to Compliance...............................................140
Section 3.14 Reports by Independent Public Accountants.......................................140
Section 3.15 Access to Certain Information...................................................141
Section 3.16 Title to REO Property; REO Account..............................................141
Section 3.17 Management of REO Property; Independent Contractors.............................143
Section 3.18 Sale of Defaulted Mortgage Loans................................................146
Section 3.19 Sale of REO Property............................................................149
Section 3.20 Additional Obligations of the Master Servicer and the Special Servicer..........151
Section 3.21 Modifications, Waivers, Amendments and Consents.................................154
Section 3.22 Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping..................................................................158
Section 3.23 Sub-Servicing Agreements........................................................159
Section 3.24 Designation of Special Servicer by the Majority Certificateholder of the
Controlling Class...............................................................161
Section 3.25 Lock-Box Accounts and Servicing Accounts........................................164
Section 3.26 Representations and Warranties of the Master Servicer and the Special
Servicer........................................................................164
Section 3.27 Third-Party Beneficiaries.......................................................166
Section 3.28 Certain Matters Relating to the Xxxx Xxxxxxx Tower Whole Loan and the
Boulevard Mall Whole Loan.......................................................166
Section 3.29 Serviced Companion Loan Intercreditor Matters...................................167
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS........................................170
Section 4.01 Distributions...................................................................170
Section 4.02 Statements to Certificateholders; Certain Reports by the Master Servicer
and the Special Servicer........................................................183
Section 4.03 Delinquency Advances............................................................191
Section 4.04 Allocation of Realized Losses and Additional Trust Fund Expenses................195
Section 4.05 Statements to Serviced Companion Loan Holders...................................196
ARTICLE V THE CERTIFICATES..........................................................................198
Section 5.01 The Certificates................................................................198
Section 5.02 Registration of Transfer and Exchange of Certificates...........................198
Section 5.03 Book-Entry Certificates.........................................................204
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates...............................205
Section 5.05 Persons Deemed Owners...........................................................205
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER...............................205
Section 6.01 Liability of the Depositor, the Master Servicer and the Special Servicer........205
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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.................................206
Section 6.03 Limitation on Liability of the Depositor, the Master Servicer, the
Special Servicer and Others.....................................................207
Section 6.04 Depositor, Master Servicer and Special Servicer Not to Resign...................208
Section 6.05 Rights of the Depositor in Respect of the Master Servicer and the Special
Servicer........................................................................208
ARTICLE VII DEFAULT...................................................................................208
Section 7.01 Events of Default...............................................................208
Section 7.02 Trustee to Act; Appointment of Successor........................................211
Section 7.03 Notification to Certificateholders..............................................212
Section 7.04 Waiver of Events of Default.....................................................212
ARTICLE VIII CONCERNING THE TRUSTEE....................................................................212
Section 8.01 Duties of the Trustee...........................................................212
Section 8.02 Certain Matters Affecting the Trustee...........................................213
Section 8.03 Trustee Not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans..................................................................215
Section 8.04 Trustee May Own Certificates....................................................215
Section 8.05 Fees and Expenses of Trustee; Indemnification of Trustee........................215
Section 8.06 Eligibility Requirements for Trustee............................................216
Section 8.07 Resignation and Removal of the Trustee..........................................217
Section 8.08 Successor Trustee...............................................................217
Section 8.09 Merger or Consolidation of Trustee..............................................218
Section 8.10 Appointment of Co-Trustee or Separate Trustee...................................218
Section 8.11 Appointment of Custodians.......................................................219
Section 8.12 Access to Certain Information...................................................220
Section 8.13 Representations and Warranties of the Trustee...................................221
Section 8.14 Filings with the Securities and Exchange Commission.............................222
Section 8.15 Serviced Companion Loan Paying Agent............................................224
Section 8.16 Serviced Companion Loan Holder Register.........................................225
ARTICLE IX TERMINATION...............................................................................225
Section 9.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans................225
Section 9.02 Additional Termination Requirements.............................................228
ARTICLE X ADDITIONAL REMIC PROVISIONS...............................................................229
Section 10.01 REMIC Administration............................................................229
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Section 10.02 Depositor, Master Servicer, Special Servicer and Trustee to Cooperate...........232
Section 10.03 Grantor Trust Administration....................................................233
ARTICLE XI MISCELLANEOUS PROVISIONS..................................................................234
Section 11.01 Amendment.......................................................................234
Section 11.02 Recordation of Agreement; Counterparts..........................................236
Section 11.03 Limitation on Rights of Certificateholders......................................237
Section 11.04 GOVERNING LAW...................................................................238
Section 11.05 Notices.........................................................................238
Section 11.06 Severability of Provisions......................................................239
Section 11.07 Grant of a Security Interest....................................................239
Section 11.08 No Partnership..................................................................239
Section 11.09 Successors and Assigns; Beneficiaries...........................................239
Section 11.10 Article and Section Headings....................................................240
Section 11.11 Notices to the Rating Agencies..................................................240
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate...........................................................A-1-1
Exhibit A-2 Form of Class A-2 Certificate...........................................................A-2-1
Exhibit A-3 Form of Class B Certificate.............................................................A-3-1
Exhibit A-4 Form of Class C Certificate.............................................................A-4-1
Exhibit A-5 Form of Class D Certificate.............................................................A-5-1
Exhibit A-6 Form of Class E Certificate.............................................................A-6-1
Exhibit A-7 Form of Class X-1 Certificate...........................................................A-7-1
Exhibit A-8 Form of Class X-2 Certificate...........................................................A-8-1
Exhibit A-9 Form of Class 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
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Exhibit E Form of UCC-1 Financing Statement.........................................................E-1
Exhibit F Methodology to Normalize Net Operating Income
and Debt Service Coverage.................................................................F-1
Exhibit G Form of Distribution Date Statement.......................................................G-1
Exhibit H-1 Form of Investor Certification..........................................................H-1-1
Exhibit H-2 Form of Confidentiality Agreement.......................................................H-2-1
Exhibit I Form of Notice and Certification regarding Defeasance of Mortgage Loans...................I-1
Exhibit J Form of Insurance Summary Report..........................................................J-1
Exhibit K [Reserved]
Exhibit L-1 Closing Mortgage File Review Certification................................................L-1
Exhibit L-2 Post-Closing Mortgage File Review Certification...........................................L-2
Exhibit M-1 Form 10K Certification..................................................................M-1-1
Exhibit M-2 Back-up Certificate for Form 10K Certification from Trustee.............................M-2-1
Exhibit M-3 Back-up Certificate for Form 10K Certification
from Master Servicer/Special Servicer...................................................M-3-1
SCHEDULES
Schedule I Mortgage Loan Schedule...............................................................Sch. I-1
Schedule II Environmental Policy Mortgage Loans.................................................Sch. II-1
Schedule III Strip Calculation Schedule.........................................................Sch. III-1
Schedule IV Broker Strip Schedule...............................................................Sch. IV-1
Schedule V Specified Earnout Reserve Loans......................................................Sch. V-1
Schedule VI Additional Servicing Fee Schedule...................................................Sch. VI-1
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This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of August 1, 2003, 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 and Serviced Companion Loan Paying
Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, to be issued hereunder in
multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust Fund to be created hereunder, the primary assets
of which will be the Mortgage Loans. The aggregate of the initial Cut-off Date
Principal Balances of the Mortgage Loans is approximately $1,290,666,634.
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.
Designation REMIC II Initial Uncertificated
Remittance Rate Principal Balance
------------------------ ------------------------ -------------------------
------------------------ ------------------------ -------------------------
LA-1-1 Variable (*) $40,704,000
LA-1-2-A Variable (*) $32,274,000
LA-1-2-B Variable (*) $31,117,000
LA-1-2-C Variable (*) $30,658,000
LA-1-2-D Variable (*) $29,547,000
LA-1-2-E Variable (*) $29,163,000
LA-1-2-F Variable (*) $71,449,000
LA-1-2-G Variable (*) $211,531,000
LA-1-2-H Variable (*) $20,462,000
LA-1-2-I Variable (*) $20,047,000
LA-1-2-J Variable (*) $19,179,000
LA-1-2-K Variable (*) $44,837,000
LA-1-2-L Variable (*) $8,995,000
LA-2 Variable (*) $471,610,000
LB Variable (*) $40,333,000
LC Variable (*) $16,133,000
LD Variable (*) $30,654,000
LE Variable (*) $16,133,000
LF-A Variable (*) $5,048,000
LF-B Variable (*) $7,185,000
LF-C Variable (*) $6,826,000
LF-D Variable (*) $1,914,000
LG-A Variable (*) $996,000
LG-B Variable (*) $7,872,000
LG-C Variable (*) $2,426,000
LH-A Variable (*) $7,046,000
LH-B Variable (*) $9,087,000
LJ-A Variable (*) $5,487,000
LJ-B Variable (*) $11,480,000
LJ-C Variable (*) $4,006,000
LK-A Variable (*) $1,630,000
LK-B Variable (*) $6,437,000
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LL Variable (*) $8,067,000
LM Variable (*) $9,680,000
LN Variable (*) $4,840,000
LO Variable (*) $4,840,000
LP Variable (*) $20,973,634
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC II Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC III". The Class R-III Certificates will represent the sole class of
"residual interests" in REMIC III for purposes of the REMIC Provisions under
federal income tax law. The following table irrevocably sets forth the
designation, the Pass-Through Rate and initial Class Principal Balance for each
of the Classes of REMIC III Regular Certificates. Determined solely for purposes
of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the "latest
possible maturity date" for each Class of REMIC III Regular Certificates shall
be the first Distribution Date that is at least two years after the end of the
remaining amortization schedule of the Mortgage Loan that has, as of the Closing
Date, the longest remaining amortization schedule, irrespective of its scheduled
maturity.
Certificate Initial Class
Designation Pass-Through Rate Principal Balance
----------------------- -------------------- ------------------
Class A-1 4.576%(1) $589,963,000
Class A-2 5.446%(2) $471,610,000
Class B 5.462%(3) $40,333,000
Class C 5.462%(3) $16,133,000
Class D 5.462%(3) $30,654,000
Class E 5.462%(3) $16,133,000
Class X-1 N/A(4) N/A(5)
------------------
1 Initial Pass-Through Rate. The Pass-Through Rate is a fixed rate.
2 Initial Pass-Through Rate. The Pass-Through Rate is the Weighted Average
Net Mortgage Rate minus 0.016%.
3 Initial Pass-Through Rate. The Pass-Through Rate is equal to the Weighted
Average Net Mortgage Rate
4 The Pass-Through Rate for each of the Class X-1 and Class X-2 Certificates
is as described herein.
3
Class X-2 N/A(4) N/A(6)
Class F 5.462%(3) $20,973,000
Class G 5.462%(3) $11,294,000
Class H 5.462%(3) $16,133,000
Class J 5.462%(7) $20,973,00
Class K 5.462%(7) $8,067,000
Class L 5.462%(7) $8,067,000
Class M 5.462%(7) $9,680,000
Class N 5.462%(7) $4,840,000
Class O 5.462%(7) $4,840,000
Class P 5.462%(7) $20,973,634
------------------
5 The Class X-1 Certificates will have an original Class X-1 Notional Amount
of $1,290,666,634. The Class X-1 Certificates will not have a Certificate
Principal Balance and will not be entitled to any distribution of
certificate principal.
6 The Class X-2 Certificates will have an original Class X-2 Notional Amount
of $1,209,620,000. The Class X-2 Certificates will not have a Certificate
Principal Balance and will not be entitled to any distribution of
certificate principal.
7 The Pass-Through Rate is equal to the lesser of (a) 5.580% and (b) the
Weighted Average Net Mortgage Rate.
Each Class X Component that corresponds to both the Class X-1 Certificates
and the Class X-2 Certificates is comprised of two uncertificated REMIC III
Regular Interests, each of which is hereby designated as a "regular interest"
therein and entitled to distributions of interest, subject to the terms and
conditions hereof, in an amount based upon the related Component Class X-1 Strip
Rate or Component Class X-2 Strip Rate, as applicable, and the Uncertificated
Principal Balance of the related REMIC II Regular Interest (as specified in the
chart under the definition of "REMIC II Regular Interest") outstanding from time
to time.
As provided herein, the Trustee shall take all actions necessary to ensure
that the portion of the Trust Fund consisting of the Grantor Trust Assets
maintains its status as a "grantor trust" under federal income tax law and not
be treated as part of REMIC I, REMIC II or REMIC III.
The Mortgaged Property that secures the Mortgage Loan identified as loan
number 1 on the Mortgage Loan Schedule (the "Xxxx Xxxxxxx Tower Mortgage Loan"),
also secures two separate pari passu mortgage loans to the same Mortgagor (the
"Xxxx Xxxxxxx Tower Companion Loans") and two additional mortgage notes (the
"Xxxx Xxxxxxx Tower B Notes")
4
which are subordinate to the Xxxx Xxxxxxx Tower Mortgage Loan and the Xxxx
Xxxxxxx Tower Companion Loans. One of the Xxxx Xxxxxxx Tower Companion Loans is
owned by the trust fund established pursuant to a Pooling and Servicing
Agreement (the "LB-UBS 2003-C5 Pooling and Servicing Agreement"), dated as of
July 11, 2003, among Structured Asset Securities Corporation II, as depositor,
Wachovia Bank, National Association, as initial master servicer (such master
servicer or any successor thereto, the "LB-UBS 2003-C5 Master Servicer"), Lennar
Partners, Inc., as initial special servicer (such special servicer or any
successor thereto, the "LB-UBS 2003-C5 Special Servicer"), LaSalle Bank National
Association, as the initial trustee (such trustee or any successor thereto, the
"LB-UBS 2003-C5 Trustee"), and ABN AMRO Bank N.V., as the initial fiscal agent
(such fiscal agent or any successor thereto, the "LB-UBS 2003-C5 Fiscal Agent").
The Xxxx Xxxxxxx Tower Mortgage Loan, the Xxxx Xxxxxxx Tower Companion Loans and
the Xxxx Xxxxxxx Tower B Notes will be serviced pursuant to the LB-UBS 2003-C5
Pooling and Servicing Agreement and the Xxxx Xxxxxxx Tower Co-Lender Agreement.
The Mortgaged Property that secures the Mortgage Loan identified as loan
number 4 on the Mortgage Loan Schedule (the "Boulevard Mall Mortgage Loan"),
also secures a separate pari passu mortgage loan to the same Mortgagor (the
"Boulevard Mall Companion Loan") and an additional mortgage note (the "Boulevard
Mall B Note" and, together with the Xxxx Xxxxxxx Tower B Notes, the "B Notes")
which is subordinate to the Boulevard Mall Mortgage Loan and the Boulevard Mall
Companion Loan. Each of the Boulevard Mall Companion Loan and the Boulevard Mall
B Note is owned by the trust fund established pursuant to a Pooling and
Servicing Agreement (the "GE 2003-C2 Pooling and Servicing Agreement"), dated as
of August 1, 2003, among GE Commercial Mortgage Corporation, as depositor, GEMSA
Loan Services, L.P., as initial master servicer (such master servicer or any
successor thereto, the "GE 2003-C2 Master Servicer"), Midland Loan Services,
Inc., as initial special servicer (such special servicer or any successor
thereto, the "GE 2003-C2 Special Servicer"), LaSalle Bank National Association,
as the initial trustee (such trustee or any successor thereto, the "GE 2003-C2
Trustee"), and ABN AMRO Bank N.V., as the initial fiscal agent (such fiscal
agent or any successor thereto, the "GE 2003-C2 Fiscal Agent"). The Boulevard
Mall Mortgage Loan, the Boulevard Mall Companion Loan and the Boulevard Mall B
Note will be serviced pursuant to the GE 2003-C2 Pooling and Servicing
Agreement, the Boulevard Mall Intercreditor Agreement and the Boulevard Mall
Agreement Among Noteholders.
The Mortgaged Property that secures the Mortgage Loan identified as loan
number 3 on the Mortgage Loan Schedule (the "DDR Portfolio Mortgage Loan") also
secures two separate pari passu mortgage loans to the same Mortgagor (the "DDR
Portfolio Companion Loans"). The DDR Portfolio Mortgage Loan and the DDR
Portfolio Companion Loans are collectively referred to herein as the "DDR
Portfolio Whole Loan".
The Mortgaged Property that secures the Mortgage Loan identified as loan
number 5 on the Mortgage Loan Schedule (the "Geneva Commons Mortgage Loan") also
secures a separate pari passu mortgage loan to the same Mortgagor (the "Geneva
Commons Companion Loan"). The Geneva Commons Mortgage Loan and the Geneva
Commons Companion Loan are collectively referred to herein as the "Geneva
Commons Whole Loan".
As and to the extent provided herein, the DDR Portfolio Whole Loan and the
Geneva Commons Whole Loan (collectively, the "Serviced Whole Loans") will be
serviced and
5
administered in accordance with this Agreement. Accordingly, the DDR Portfolio
Companion Loans and the Geneva Commons Companion Loan (collectively, the
"Serviced Companion Loans") will be serviced and administered in accordance with
this Agreement. Amounts attributable to Serviced Companion Loans will not be an
asset of the Trust Fund, REMIC I, REMIC II or REMIC III and will be beneficially
owned by the applicable 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, the Trustee and the Serviced
Companion Loan Paying Agent agree as follows:
6
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary Statement,
the following words and phrases, unless the context otherwise requires, shall
have the meanings specified in this Article.
"2003-TOP11 Master Servicer": The master servicer under the pooling and
servicing agreement relating to the Xxxxxx Xxxxxxx Capital I Trust 2003-TOP11
securitization.
"Accrued Certificate Interest": With respect to any Class of REMIC III
Regular Certificates (other than the Class X Certificates) for any Distribution
Date, one month's interest (calculated on the basis of a 360-day year consisting
of twelve 30-day months) at the Pass-Through Rate applicable to such Class of
Certificates for such Distribution Date, accrued on the Class Principal Balance
of such Class of Certificates outstanding immediately prior to such Distribution
Date. With respect to the Class X-1 and Class X-2 Certificates for any
Distribution Date, one month's interest (calculated on the basis of a 360-day
year consisting of twelve 30-day months) at the Class X-1 Pass-Through Rate or
the Class X-2 Pass Through Rate, as applicable, for such Distribution Date,
accrued on the Class X-1 Notional Amount or the Class X-2 Notional Amount, as
applicable, outstanding immediately prior to such Distribution Date.
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulation Section 1.856-6(b)(1), which is the first day
on which the Trust Fund is treated as the owner of such REO Property for federal
income tax purposes.
"Additional Information": As defined in Section 4.02(a).
"Additional Servicing Fee": With respect to each Additional Servicing Fee
Mortgage Loan, the fee provided for in the Designated Sub-Servicer Agreement
(which may be comprised of a designated sub-servicing fee and an additional
sub-servicing fee) that accrues at the rate per annum set forth on the
Additional Servicing Fee Schedule.
"Additional Servicing Fee Mortgage Loans": The Mortgage Loans secured by,
and any successor REO Loans relating to, those Mortgaged Properties identified
on the Additional Servicing Fee Schedule.
"Additional Servicing Fee Schedule": Schedule VI hereto.
"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.
7
"Adjustable Rate Mortgage Loan": A Mortgage Loan, if any, as to which the
related Mortgage Note provides, as of the Closing Date, for periodic adjustments
to the Mortgage Rate thereon based on changes in the related Index.
"Advance": Any Delinquency Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the Reimbursement
Rate 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.
"Advance Interest Reconciliation Report". A report prepared by the Master
Servicer, detailing and reconciling on a loan by loan basis, all Delinquency
Advances, all Servicing Advances, all additional trust fund expenses, all
interest on Advances and all default charges, penalty charges, late fees and
default interest collected.
"Adverse Grantor Trust Event": As defined in Section 10.03(e).
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Anticipated Repayment Date": With respect to any ARD Loan, the date upon
which such ARD Loan starts to accrue interest at its Revised Rate.
"Applicable State Law": For purposes of Article X, (a) the laws of the
State and City of New York, (b) the laws of the states in which the Corporate
Trust Office of the Trustee and the Primary Servicing Offices of the Master
Servicer and the Special Servicer are located, (c) other state or local law as
to which the Trustee as the REMIC administrator has actual knowledge of
applicability and (d) such other state or local law whose applicability shall
have been brought to the attention of the Trustee as REMIC administrator by
either (i) an opinion of counsel delivered to it, or (ii) written notice from
the appropriate taxing authority as to the applicability of such state law.
"Appraisal": With respect to any Mortgaged Property or REO Property as to
which an appraisal is required or permitted to be performed pursuant to the
terms of this Agreement, either: (i) a narrative appraisal complying with USPAP
conducted by a Qualified Appraiser in the case of Mortgage Loans and REO Loans
with a Stated Principal Balance as of the date of such appraisal of greater than
$2,000,000; or (ii) a limited appraisal and a summary report of the "market
value" of the Mortgaged Property conducted by a Qualified Appraiser in the case
of
8
Mortgage Loans or any REO Loans with a Stated Principal Balance as of the date
of such appraisal of $2,000,000 or less.
"Appraisal Reduction Amount": With respect to any Required Appraisal Loan,
an amount (as calculated on the Determination Date immediately succeeding the
date on which the most recent relevant Appraisal was obtained by the Master
Servicer or the Special Servicer, as the case may be, pursuant to this
Agreement) equal to the excess, if any, of (a) the sum of (i) the Stated
Principal Balance (including, with respect to any Serviced Whole Loan, the
Stated Principal Balances of the applicable Mortgage Loan and related Serviced
Companion Loan(s)) 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 occurring on or prior to such Determination Date at a per annum
rate equal to the related Mortgage Rate, (iii) all related unreimbursed Advances
made by or on behalf of the Master Servicer, the Special Servicer or the Trustee
in respect of such Required Appraisal Loan, together with all unpaid Advance
Interest accrued on such Advances, and (iv) all currently due but unpaid real
estate taxes and assessments, insurance premiums and, if applicable, ground
rents in respect of the related Mortgaged Property or REO Property, net of any
Escrow Payments, letters of credit or other reserves held by the Master Servicer
or the Special Servicer with respect to any such item, over (b) 90% of an amount
equal to (i) (x) the Appraised Value of the related Mortgaged Property or REO
Property, as applicable, as determined by such Appraisal referred to in the
parenthetical above, minus any downward adjustment from time to time (as
notified to the Master Servicer by the Special Servicer) which the Special
Servicer deems prudent based upon its review of such Appraisal and any
information the Special Servicer deems appropriate relating to the valuation of
the related Mortgaged Property or REO Property and (y) all escrows and reserves
in respect of such Required Appraisal Loan (other than amounts representing due
and unpaid taxes, assessments, insurance premiums, ground rents and other
amounts due and unpaid with respect to such Required Appraisal Loan), net of
(ii) the amount of any liens on such property (not accounted for in clause
(a)(iv) of this definition or taken into account in determining such Appraised
Value) that are prior to the lien of the Required Appraisal Loan.
Notwithstanding the foregoing, if an Appraisal is not obtained within 120 days
following the earliest of the dates described in Section 3.20(d) (which, in the
case of Section 3.20(d)(ii), shall be the date of the occurrence of an uncured
delinquency in Monthly Payments), then until such Appraisal is obtained the
Appraisal Reduction Amount will equal 25% of the Stated Principal Balance
(including, with respect to any Serviced Whole Loan, the Stated Principal
Balances of the applicable Mortgage Loan and the related Companion Loan(s)) of
the related Required Appraisal Loan; provided, upon receipt of an Appraisal,
however, the Appraisal Reduction Amount for such Required Appraisal Loan will be
recalculated in accordance with this definition without regard to this sentence.
With respect to the Xxxx Xxxxxxx Tower Mortgage Loan, the term "Appraisal
Reduction Amount" has the meaning set forth in, and will be calculated in
accordance with, the LB-UBS 2003-C5 Pooling and Servicing Agreement (taking into
account any unreimbursed Advances and Advance Interest under this Agreement or
the LB-UBS 2003-C5 Pooling and Servicing Agreement). With respect to the
Boulevard Mall Mortgage Loan, the term "Appraisal Reduction Amount" has the
meaning set forth in, and will be calculated in accordance with, the GE 2003-C2
Pooling and Servicing Agreement (taking into account any unreimbursed Advances
and Advance Interest under this Agreement or the GE 2003-C2 Pooling and
Servicing Agreement).
9
"Appraised Value": As of any date of determination, the appraised value of
a Mortgaged Property based upon the most recent Appraisal obtained pursuant to
this Agreement.
"Archon": Archon Financial, L.P. and its successors and assigns.
"ARD Loan": Any Mortgage Loan that is designated as such in the Mortgage
Loan Schedule.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents, security deposits and profits or similar instrument
executed by the Mortgagor, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Monthly Payment": With respect to any Balloon Mortgage Loan for
its Stated Maturity Date (provided that such Balloon Mortgage Loan has not been
paid in full, and no other Liquidation Event has occurred in respect thereof, on
or before the end of the Collection Period in which such Stated Maturity Date
occurs (or in the case of a Late Due Date Mortgage Loan, on or before the end of
the Collection Period immediately preceding the Collection Period in which such
Stated Maturity Date occurs)) and for any subsequent Due Date therefor as of
which such Balloon Mortgage Loan remains outstanding and part of the Trust Fund
(or, in the case of a Late Due Date Mortgage Loan, for any subsequent Due Date
therefor which follows in the same month a Determination Date as of which such
Mortgage Loan remains outstanding and part of the Trust Fund), if no Monthly
Payment (other than the related Balloon Payment) is due for such Due Date, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof for the Stated Maturity Date and each such subsequent Due Date
equal to the Monthly Payment (exclusive of any Excess Interest) that would have
been due in respect of such Balloon Mortgage Loan on such Due Date if it had
been required to continue to accrue interest in accordance with its terms, and
to pay principal in accordance with the amortization schedule (if any), in
effect immediately prior to, and without regard to the occurrence of, its most
recent scheduled maturity date. With respect to any REO Loan, for any Due Date
therefor as of which (or, in the case of a Late Due Date Mortgage Loan, for any
Due Date therefor which follows in the same month a Determination Date as of
which) the related REO Property remains part of the Trust Fund, the scheduled
monthly payment of principal and/or interest deemed to be due in respect thereof
on such Due Date equal to the Monthly Payment (or, in the case of a Balloon
Mortgage Loan described in the preceding sentence of this definition, the
Assumed Monthly Payment) exclusive of any Excess Interest that was due (or
deemed due) in respect of the related Mortgage Loan for the last Due Date prior
to its becoming an REO Loan.
"Available Distribution Amount": With respect to any Distribution Date, an
amount equal to (a) the sum of (i) the aggregate amount relating to the Trust
Fund on deposit in the Certificate Account and the Distribution Account as of
the close of business on the related Determination Date, (ii) the aggregate
amount of any Delinquency Advances made by the Master Servicer or the Trustee
for such Distribution Date pursuant to Section 4.03, (iii) the aggregate of any
Compensating Interest Payments made by the Master Servicer for such Distribution
Date pursuant to Section 3.20, (iv) in the case of the Final Distribution Date,
the aggregate of any
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Liquidation Proceeds paid by the Master Servicer, the Majority Certificateholder
of the Controlling Class or the Depositor in connection with a purchase of all
the Mortgage Loans and any REO Properties pursuant to Section 9.01, (v) with
respect to the Distribution Date occurring in March of each calendar year, the
Withheld Amounts with respect to the Interest Reserve Loans deposited in the
Interest Reserve Account by the Trustee in January and/or February of such
calendar year in accordance with Section 3.04(e), (vi) with respect to any Late
Due Date Mortgage Loan (other than the Xxxx Xxxxxxx Tower 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 and (vii) with
respect to the Xxxx Xxxxxxx Tower Mortgage Loan, the Monthly Payment due in the
same calendar month as such Distribution Date and received on or before its Due
Date (including the Balloon Payment due in the same calendar month as such
Distribution Date and received on or before 5 p.m. on the Master Servicer
Remittance Date in such month), net of (b) the aggregate portion of the amount
described in clause (a) hereof that represents one or more of the following: (i)
Monthly Payments (except those referred to in clause (a)(vi) above) paid by the
Mortgagors that are due on a Due Date following the end of the related
Collection Period, (ii) any amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (xvii), inclusive, of
Section 3.05(a), (iii) any amounts payable or reimbursable to any Person from
the Distribution Account pursuant to clauses (ii) through (vii), inclusive, of
Section 3.05(b), (iv) Prepayment Premiums and any Excess Interest and (v) with
respect to the Distribution Date occurring in (A) January of each calendar year
that is not a leap year and (B) February of each calendar year, the Withheld
Amounts with respect to the Interest Reserve Loans deposited in the Interest
Reserve Account by the Trustee with respect to such Distribution Date in
accordance with Section 3.04(e). Notwithstanding the investment of funds held in
the Certificate Account or the Distribution Account pursuant to Section 3.06,
for purposes of calculating the Available Distribution Amount, the amounts so
invested shall be deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan or any Serviced Companion Loan
that by its original terms or by virtue of any modification entered into as of
the Closing Date provides for an amortization schedule extending beyond its
Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any date
of determination, the Monthly Payment payable on the Maturity Date of such
Balloon Mortgage Loan.
"Balloon Payment Interest Excess": With respect to any Balloon Mortgage
Loan (other than a Late Due Date Mortgage Loan, the Xxxx Xxxxxxx Tower Mortgage
Loan and the Boulevard Mall 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.
11
"Balloon Payment Interest Shortfall": With respect to any Balloon Mortgage
Loan (other than a Late Due Date Mortgage Loan, the Xxxx Xxxxxxx Tower Mortgage
Loan and the Boulevard Mall Mortgage Loan) as to which the Stated Maturity Date
occurs after the Determination Date in any calendar month, and as to which the
related Balloon Payment was made during the Collection Period in which such
Stated Maturity Date occurs, the amount of interest that would have accrued on
such Balloon Mortgage Loan at the related Net Mortgage Rate from such Stated
Maturity Date to but not including the date that (but for the occurrence of such
Stated Maturity Date) would otherwise have been the next succeeding scheduled
Due Date, to the extent not paid by the related Mortgagor. With respect to any
Late Due Date Mortgage Loan that is a Balloon Mortgage Loan as to which the
related Balloon Payment is paid during the Collection Period in which the
related Stated Maturity Date occurs, the amount of interest that would have
accrued on such Late Due Date Mortgage Loan at the related Net Mortgage Rate
from such Stated Maturity Date to the date that (but for the occurrence of such
Stated Maturity Date) would have been the Due Date in the next calendar month,
to the extent not paid by the related Mortgagor.
"Bloomberg": As defined in Section 4.02(a).
"B Notes": As defined in the Preliminary Statement.
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Borrower Recoveries": With respect to any Mortgage Loan or Serviced Whole
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.
"Boulevard Mall Agreement Among Noteholders": That certain Boulevard Mall
Agreement Among Note Holders between GACC, as the initial holder of the
Boulevard Mall Mortgage Loan and the Boulevard Mall Companion Loan and GACC, as
the initial holder of the Boulevard Mall B Note dated as of August 12, 2003.
"Boulevard Mall B Note": As defined in the Preliminary Statement.
"Boulevard Mall Companion Loan": As defined in the Preliminary Statement.
"Boulevard Mall Intercreditor Agreement": That certain A Notes
Intercreditor Agreement (Boulevard Mall) between GACC, as the initial holder of
the Boulevard Mall Mortgage Loan and GACC, as the initial holder of the
Boulevard Mall Companion Loan dated as of August 12, 2003.
"Boulevard Mall Mortgage Loan": As defined in the Preliminary Statement.
"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
12
Schedule, the rate per annum identified on the Broker Strip Schedule, of the
Stated Principal Balance of the related Mortgage Loan, calculated for the same
number of days and on the same basis as the Servicing Fee Rate. The Mortgage
Rate set forth for each Broker Strip Loan on the Mortgage Loan Schedule is net
of such Broker Strip Amount.
"Broker Strip Loans": The Mortgage Loans identified on the Broker Strip
Schedule.
"Broker Strip Schedule": Schedule IV hereto.
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking institutions in New York, New York, and the cities in which the Primary
Servicing Offices of the Master Servicer and the Special Servicer and the city
in which the Corporate Trust Office of the Trustee are located, are authorized
or obligated by law or executive order to remain closed.
"Cash Collateral Account": With respect to any Mortgage Loan that has a
Lock-Box Account, any account or accounts created pursuant to the related
Mortgage Loan, Cash Collateral Account Agreement or other loan document, into
which account or accounts the Lock-Box Account monies are swept on a regular
basis for the benefit of the Trustee as successor to the Mortgage Loan Seller's
interest in the Mortgage Loans. Any Cash Collateral Account shall be
beneficially owned for federal income tax purposes by the Person who is entitled
to receive all reinvestment income or gain thereon in accordance with the terms
and provisions of the related Mortgage Loan and Section 3.06, which Person shall
be taxed on all reinvestment income or gain thereon. To the extent not otherwise
required to be paid to the applicable Mortgagor under the terms of the related
Mortgage Loan, the Master Servicer shall be permitted to make withdrawals
therefrom solely for deposit into the Certificate Account. To the extent not
inconsistent with the terms of the related Mortgage Loan, each such Cash
Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage Loan, the
cash collateral account agreement, if any, between the originator of such
Mortgage Loan and the related Mortgagor, pursuant to which the related Cash
Collateral Account, if any, may have been established.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Mortgage Pass-Through
Certificates, Series 2003-C2, as executed by the Trustee and authenticated and
delivered hereunder by the Certificate Registrar.
"Certificate Account": The custodial account or accounts created and
maintained pursuant to Section 3.04(a) in the name of the Master Servicer, as
custodian for the Holders of the Certificates, and for the Master Servicer, into
which the amounts set forth in Section 3.04(a) shall be deposited directly. Any
such account or accounts shall be an Eligible Account.
"Certificate Factor": With respect to any Class of REMIC III Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or the Class Notional Amount, as
13
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 Register" and "Certificate Registrar": The register maintained
and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
giving any consent, approval or waiver pursuant to this Agreement, any
Certificate registered in the name of the Master Servicer, the Special Servicer,
the Trustee, the Depositor or any Affiliate of any of them shall be deemed not
to be outstanding, and the Voting Rights to which it is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver has been
obtained, except as otherwise provided in Sections 7.04 and 11.01. The Trustee
shall be entitled to request and rely upon a certificate of the Master Servicer,
the Special Servicer or the Depositor in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and the
Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register as of the related Record Date.
"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-1
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
14
"Class A-2 Certificate": Any one of the Certificates with a "Class A-2"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-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.
"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 LA-1-1 Component": A non-certificated beneficial ownership interest
in REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-1 Component Rate and
15
the Uncertificated Principal Balance of REMIC II Regular Interest LA-1-1
outstanding from time to time.
"Class LA-1-2-A Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-A Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-A outstanding from time to
time.
"Class LA-1-2-B Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-B Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-B outstanding from time to
time.
"Class LA-1-2-C Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-C Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-C outstanding from time to
time.
"Class LA-1-2-D Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-D Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-D outstanding from time to
time.
"Class LA-1-2-E Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-E Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-E outstanding from time to
time.
"Class LA-1-2-F Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-F Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-F outstanding from time to
time.
"Class LA-1-2-G Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-G Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-G outstanding from time to
time.
"Class LA-1-2-H Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-H
16
Component Rate and the Uncertificated Principal Balance of REMIC II Regular
Interest LA-1-2-H outstanding from time to time.
"Class LA-1-2-I Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-I Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-I outstanding from time to
time.
"Class LA-1-2-J Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-J Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-J outstanding from time to
time.
"Class LA-1-2-K Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-K Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-K outstanding from time to
time.
"Class LA-1-2-L Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1-2-L Component Rate and the Uncertificated
Principal Balance of REMIC II Regular Interest LA-1-2-L outstanding from time to
time.
"Class LA-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 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LA-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.
"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
17
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-A Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LF-A Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LH-A outstanding from time to time.
"Class LF-B Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LF-B Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LH-B outstanding from time to time.
"Class LF-C Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LF-C Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LF-C outstanding from time to time.
"Class LG-A Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LG-A Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LG-A outstanding from time to time.
"Class LG-B Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LG-B Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LG-B outstanding from time to time.
"Class LG-C Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LG-C Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LG-C outstanding from time to time.
"Class LH-A Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LH-A Component Rate and
18
the Uncertificated Principal Balance of REMIC II Regular Interest LH-A
outstanding from time to time.
"Class LH-B Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LH-B Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LH-B outstanding from time to time.
"Class LJ-A Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LJ-A Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LJ-A outstanding from time to time.
"Class LJ-B Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LJ-B Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LJ-B outstanding from time to time.
"Class LJ-C Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LJ-C Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LJ-C outstanding from time to time.
"Class LK-A Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LK-A Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LK-A outstanding from time to time.
"Class LK-B Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LK-B Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LK-B outstanding from time to time.
"Class LL 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
19
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-1-1 Component Rate": With respect to any Distribution Date, the
amount, if any, by which the Weighted Average Net Mortgage Rate for such
Distribution Date exceeds the Class A-1 Pass-Through Rate.
"Class LA-1-2-A Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-A Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-A Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-A Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2005 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-B Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-B Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-B Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-B Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
20
"Class LA-1-2-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2005 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-C Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-C Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-C Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-C Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-C Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-C Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-D Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-D Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-D Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-D Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-D Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-D Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-E Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-E Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-E Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-E Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-E Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
21
"Class LA-1-2-E Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2007 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-F Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-F Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-F Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-F Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-F Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-F Component Class X-2 Strip Rate": With respect to (a)
any Distribution Date through and including the August 2007 Distribution Date,
the amount, if any, by which (i) the lesser of (x) the rate per annum
corresponding to such Distribution Date as set forth in Schedule III hereto or
(y) the Weighted Average Net Mortgage Rate for such Distribution Date exceeds
(ii) the Class A-1 Pass-Through Rate for such Distribution Date and (b) any
Distribution Date thereafter, zero.
"Class LA-1-2-G Component Rate": With respect to any Distribution Date,
the sum of the Class LA-1-2-G Component Class X-1 Strip Rate for such
Distribution Date and the Class LA-1-2-G Component Class X-2 Strip Rate for such
Distribution Date.
"Class LA-1-2-G Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-G Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-G Component Class X-2 Strip Rate": With respect to (a)
any Distribution Date through and including the February 2008 Distribution Date,
the amount, if any, by which (i) the lesser of (x) the rate per annum
corresponding to such Distribution Date as set forth in Schedule III hereto or
(y) the Weighted Average Net Mortgage Rate for such Distribution Date exceeds
(ii) the Class A-1 Pass-Through Rate for such Distribution Date and (b) any
Distribution Date thereafter, zero.
"Class LA-1-2-H Component Rate": With respect to any Distribution Date,
the sum of the Class LA-1-2-H Component Class X-1 Strip Rate for such
Distribution Date and the Class LA-1-2-H Component Class X-2 Strip Rate for such
Distribution Date.
"Class LA-1-2-H Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-H Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
22
"Class LA-1-2-H Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-I Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-I Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-I Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-I Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-I Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-I Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-J Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-J Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-J Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-J Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-J Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-J Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-K Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-K Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-K Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-K Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-K Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
23
"Class LA-1-2-K Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2010 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-1-2-L Component Rate": With respect to any Distribution Date, the
sum of the Class LA-1-2-L Component Class X-1 Strip Rate for such Distribution
Date and the Class LA-1-2-L Component Class X-2 Strip Rate for such Distribution
Date.
"Class LA-1-2-L Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-1-2-L Component Class X-2 Strip Rate and the Class A-1 Pass-Through Rate for
such Distribution Date.
"Class LA-1-2-L Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2010 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class A-1 Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LA-2 Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LA-2 Component Class X-1 Strip
Rate for such Distribution Date and the Class LA-2 Component Class X-2 Strip
Rate for such Distribution Date.
"Class LA-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
Component Class X-2 Strip Rate and the Class B Pass-Through Rate for such
Distribution Date.
"Class LA-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 III
hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution Date
exceeds (ii) the Class A-2 Pass-Through Rate for such Distribution Date.
"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.
24
"Class LB Component Class X-2 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the lesser of (x) the rate per annum
corresponding to such Distribution Date as set forth in Schedule III hereto or
(y) the Weighted Average Net Mortgage Rate for such Distribution Date exceeds
(ii) the Class B Pass-Through Rate for such Distribution Date.
"Class LC Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LC Component Class X-1 Strip Rate
for such Distribution Date and the Class LC Component Class X-2 Strip Rate for
such Distribution Date.
"Class LC Component Class X-1 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the Weighted Average Net Mortgage Rate
for such Distribution Date exceeds (ii) the sum of the Class LC Component Class
X-2 Strip Rate and the Class C Pass-Through Rate for such Distribution Date.
"Class LC Component Class X-2 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the lesser of (x) the rate per annum
corresponding to such Distribution Date as set forth in Schedule III hereto or
(y) the Weighted Average Net Mortgage Rate for such Distribution Date exceeds
(ii) the Class C Pass-Through Rate for such Distribution Date.
"Class LD Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LD Component Class X-1 Strip Rate
for such Distribution Date and the Class LD Component Class X-2 Strip Rate for
such Distribution Date.
"Class LD Component Class X-1 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the Weighted Average Net Mortgage Rate
for such Distribution Date exceeds (ii) the sum of the Class LD Component Class
X-2 Strip Rate and the Class D Pass-Through Rate for such Distribution Date.
"Class LD Component Class X-2 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the lesser of (x) the rate per annum
corresponding to such Distribution Date as set forth in Schedule III hereto or
(y) the Weighted Average Net Mortgage Rate for such Distribution Date exceeds
(ii) the Class D Pass-Through Rate for such Distribution Date.
"Class LE Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LE Component Class X-1 Strip Rate
for such Distribution Date and the Class LE Component Class X-2 Strip Rate for
such Distribution Date.
"Class LE Component Class X-1 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the Weighted Average Net Mortgage Rate
for such Distribution Date exceeds (ii) the sum of the Class LE Component Class
X-2 Strip Rate and the Class E Pass-Through Rate for such Distribution Date.
"Class LE Component Class X-2 Strip Rate": With respect to any Distribution
Date, the amount, if any, by which (i) the lesser of (x) the rate per annum
corresponding to such Distribution Date as set forth in Schedule III hereto or
(y) the Weighted Average Net Mortgage
25
Rate for such Distribution Date exceeds (ii) the Class E Pass-Through Rate for
such Distribution Date.
"Class LF-A Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LF-A Component Class X-1 Strip
Rate for such Distribution Date and the Class LF-A Component Class X-2 Strip
Rate for such Distribution Date.
"Class LF-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LF-A
Component Class X-2 Strip Rate and the Class F Pass-Through Rate for such
Distribution Date.
"Class LF-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class F Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LF-B Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LF-B Component Class X-1 Strip
Rate for such Distribution Date and the Class LF-B Component Class X-2 Strip
Rate for such Distribution Date.
"Class LF-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LF-B
Component Class X-2 Strip Rate and the Class F Pass-Through Rate for such
Distribution Date.
"Class LF-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class F Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LF-C Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LF-C Component Class X-1 Strip
Rate for such Distribution Date and the Class LF-C Component Class X-2 Strip
Rate for such Distribution Date.
"Class LF-C Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LF-C
Component Class X-2 Strip Rate and the Class F Pass-Through Rate for such
Distribution Date.
"Class LF-C Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2010 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date
26
exceeds (ii) the Class F Pass-Through Rate for such Distribution Date and (b)
any Distribution Date thereafter, zero.
"Class LF-D Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LF-D Component Class X-1 Strip
Rate for such Distribution Date and the Class LF-D Component Class X-2 Strip
Rate for such Distribution Date.
"Class LF-D Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LF-D
Component Class X-2 Strip Rate and the Class F Pass-Through Rate for such
Distribution Date.
"Class LF-D Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2010 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class F Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LG-A Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LG-A Component Class X-1 Strip
Rate for such Distribution Date and the Class LG-A Component Class X-2 Strip
Rate for such Distribution Date.
"Class LG-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LG-A
Component Class X-2 Strip Rate and the Class G Pass-Through Rate for such
Distribution Date.
"Class LG-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class G Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LG-B Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LG-B Component Class X-1 Strip
Rate for such Distribution Date and the Class LG-B Component Class X-2 Strip
Rate for such Distribution Date.
"Class LG-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LG-B
Component Class X-2 Strip Rate and the Class G Pass-Through Rate for such
Distribution Date.
"Class LG-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date
27
exceeds (ii) the Class G Pass-Through Rate for such Distribution Date and (b)
any Distribution Date thereafter, zero.
"Class LG-C Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LG-C Component Class X-1 Strip
Rate for such Distribution Date and the Class LG-C Component Class X-2 Strip
Rate for such Distribution Date.
"Class LG-C Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LG-C
Component Class X-2 Strip Rate and the Class G Pass-Through Rate for such
Distribution Date.
"Class LG-C Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2009 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class G Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LH-A Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LH-A Component Class X-1 Strip
Rate for such Distribution Date and the Class LH-A Component Class X-2 Strip
Rate for such Distribution Date.
"Class LH-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LH-A
Component Class X-2 Strip Rate and the Class H Pass-Through Rate for such
Distribution Date.
"Class LH-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2007 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class H Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LH-B Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LH-B Component Class X-1 Strip
Rate for such Distribution Date and the Class LH-B Component Class X-2 Strip
Rate for such Distribution Date.
"Class LH-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LH-B
Component Class X-2 Strip Rate and the Class H Pass-Through Rate for such
Distribution Date.
"Class LH-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2008 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date
28
exceeds (ii) the Class H Pass-Through Rate for such Distribution Date and (b)
any Distribution Date thereafter, zero.
"Class LJ-A Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LJ-A Component Class X-1 Strip
Rate for such Distribution Date and the Class LJ-A Component Class X-2 Strip
Rate for such Distribution Date.
"Class LJ-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LJ-A
Component Class X-2 Strip Rate and the Class J Pass-Through Rate for such
Distribution Date.
"Class LJ-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class J Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LJ-B Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LJ-B Component Class X-1 Strip
Rate for such Distribution Date and the Class LJ-B Component Class X-2 Strip
Rate for such Distribution Date.
"Class LJ-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LJ-B
Component Class X-2 Strip Rate and the Class J Pass-Through Rate for such
Distribution Date.
"Class LJ-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2007 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class J Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LJ-C Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LJ-C Component Class X-1 Strip
Rate for such Distribution Date and the Class LJ-C Component Class X-2 Strip
Rate for such Distribution Date.
"Class LJ-C Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LJ-C
Component Class X-2 Strip Rate and the Class J Pass-Through Rate for such
Distribution Date.
"Class LJ-C Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2007 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds
29
(ii) the Class J Pass-Through Rate for such Distribution Date and (b) any
Distribution Date thereafter, zero.
"Class LK-A Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LK-A Component Class X-1 Strip
Rate for such Distribution Date and the Class LK-A Component Class X-2 Strip
Rate for such Distribution Date.
"Class LK-A Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LK-A
Component Class X-2 Strip Rate and the Class K Pass-Through Rate for such
Distribution Date.
"Class LK-A Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the February 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class K Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LK-B Component Rate": With respect to any Distribution Date, the
amount, if any, equal to the sum of the Class LK-B Component Class X-1 Strip
Rate for such Distribution Date and the Class LK-B Component Class X-2 Strip
Rate for such Distribution Date.
"Class LK-B Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LK-B
Component Class X-2 Strip Rate and the Class K Pass-Through Rate for such
Distribution Date.
"Class LK-B Component Class X-2 Strip Rate": With respect to (a) any
Distribution Date through and including the August 2006 Distribution Date, the
amount, if any, by which (i) the lesser of (x) the rate per annum corresponding
to such Distribution Date as set forth in Schedule III hereto or (y) the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds (ii) the
Class K Pass-Through Rate for such Distribution Date and (b) any Distribution
Date thereafter, zero.
"Class LL 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.
30
"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 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 Notional Amount": The Class X-1 Notional Amount or the Class X-2
Notional Amount, as applicable.
"Class O Certificate": Any one of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of Exhibit A-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 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-19
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-I Distribution Amount": With respect to any Distribution Date, any
amounts available to be paid to the holders of the Class R-I Certificates on
such date after all REMIC I Regular Interests have been paid in full.
"Class R-II Certificate": Any one of the Certificates with a "Class R-II"
designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
31
"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-21
attached hereto, and evidencing the sole class of "residual interests" in REMIC
III for purposes of the REMIC Provisions.
"Class R-III Distribution Amount": With respect to any Distribution Date,
any amounts available to be paid to the holders of the Class R-III Certificates
on such date after all REMIC III Regular Certificates have been paid in full.
"Class X Certificate": Any of the Class X-1 or the Class X-2 Certificates.
"Class X-1 Certificate": Any one of the Certificates with a "Class X-1"
designation on the face thereof, substantially in the form of Exhibit A-7,
evidencing "regular interests" in REMIC III for purposes of the REMIC
Provisions.
"Class X-2 Certificate": Any one of the Certificates with a "Class X-2"
designation on the face thereof, substantially in the form of Exhibit A-8,
evidencing "regular interests" in REMIC III for purposes of the REMIC
Provisions.
"Class X Component": Any of the thirty-seven (37) components constituting
"regular interests" in REMIC III for purposes of the REMIC Provisions. Such
components are identified as Class LA-1-1, XX-0-0-X, XX-0-0-X, XX-0-0-X,
XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K,
LA-1-2-L, LA-2, LB, LC, LD, LE, LF-A, LF-B, LF-C, LF-D, LG-A, XX-X, XX-X, XX-X,
XX-X, XX-X, XX-X, XX-X, LK-A, LK-B, 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-1 Notional Amount": The aggregate notional principal amount on
which the Class X-1 Certificates accrue interest from time to time which, as of
any date of determination, is equal to the then aggregate Uncertificated
Principal Balances of REMIC Regular Interests XX-0-0, XX-0-0-X, XX-0-0-X,
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J,
LA-1-2-K, LA-1-2-L, LA-2, LB, LC, LD, LE, LF-A, LF-B, LF-C, LF-D, LG-A, XX-X,
XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LK-A, LK-B, LL, LM, LN, LO and LP.
"Class X-1 Pass-Through Rate": With respect to the Class X-1 Certificates,
(i) for the initial Distribution Date 0.047% per annum; and
(ii) for any Distribution Date thereafter, the per annum rate, expressed as
a percentage, obtained by dividing (a) the sum of (I) the products of (x) the
Uncertificated Principal Balance of each REMIC Regular II Interest LA-1-1, LM,
LN, LO and LP immediately prior to such Distribution Date and (y) the related
Component Rate for such Distribution Date
32
and (II) the products of (x) the Uncertificated Principal Balance of each REMIC
Regular II Interest XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-1-2-L, LA-2, LB, LC, LD,
LE, LF-A, LF-B, LF-C, LF-D, LG-A, LG-B, LG-C, XX-X, XX-X, XX-X, XX-X, XX-X,
XX-X, XX-X, and LL prior to such Distribution Date and (y) the related Component
Class X-1 Strip Rate by (b) the Class X-1 Notional Amount.
"Class X-2 Component": As to the Class X-2 Certificates, any one of the
Class X Components applicable to such Class set forth under the definition of
"REMIC II Regular Interests".
"Class X-2 Notional Amount": means, the aggregate notional principal amount
on which the Class X-2 Certificates accrue interest from time to time which:
(A) as of any date of determination on or before the February 2005
Distribution Date, is equal to the then aggregate Uncertificated Principal
Balances of REMIC Regular Interests XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K,
LA-1-2-L, LA-2, LB, LC, LD, LE, LF-A, LF-B, LF-C, LF-D, LG-A, LG-B, LG-C,
LH-A, LH-B, LJ-A, LJ-B, LJ-C, LK-A, LK-B and LL;
(B) as of any date of determination after the February 2005
Distribution Date and on or before the August 2005 Distribution Date, is
equal to the then aggregate Uncertificated Principal Balances of REMIC
Regular Interests XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
XX-0-0-X, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-1-2-L, LA-2, LB, LC,
LD, LE, LF-A, LF-B, LF-C, LF-D, LG-A, LG-B, LG-C, LH-A, LH-B, LJ-A, LJ-B,
LJ-C, LK-A, LK-B and LL;
(C) as of any date of determination after the August 2005 Distribution
Date and on or before the February 2006 Distribution Date, is equal to the
then aggregate Uncertificated Principal Balances of REMIC Regular
Interests, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-1-2-L, LA-2, LB, LC, LD, LE, LF-A, LF-B,
LF-C, LF-D, LG-A, LG-B, LG-C, LH-A, LH-B, LJ-A, LJ-B, LJ-C, LK-A, LK-B and
LL;
(D) as of any date of determination after the February 2006
Distribution Date and on or before the August 2006 Distribution Date, is
equal to the then aggregate Uncertificated Principal Balances of REMIC
Regular Interests, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-1-2-L, LA-2, LB, LC, LD, LE, LF-A, LF-B,
LF-C, LF-D, LG-A, LG-B, LG-C, LH-A, LH-B, LJ-A, LJ-B, LJ-C, LK-B and LL;
(E) as of any date of determination after the August 2006 Distribution
Date and on or before the February 2007 Distribution Date, is equal to the
then aggregate Uncertificated Principal Balances of REMIC Regular
Interests, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
LA-1-2-K, LA-1-2-L, LA-2, LB, LC, LD, LE, LF-A, LF-B, LF-C, LF-D, LG-A,
LG-B, LG-C, LH-A, LH-B, LJ-B, LJ-C and LL;
33
(F) as of any date of determination after the February 2007
Distribution Date and on or before the August 2007 Distribution Date, is
equal to the then aggregate Uncertificated Principal Balances of REMIC
Regular Interests, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
LA-1-2-K, LA-1-2-L, LA-2, LB, LC, LD, LE, LF-A, LF-B, LF-C, LF-D, LG-A,
LG-B, LG-C, LH-A, LH-B, LJ-C and LL;
(G) as of any date of determination after the August 2007 Distribution
Date and on or before the February 2008 Distribution Date, is equal to the
then aggregate Uncertificated Principal Balances of REMIC Regular Interests
LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-1-2-L, LA-2, LB, LC,
LD, LE, LF-A, LF-B, LF-C, LF-D, LG-A, LG-B, LG-C, LH-B, and LL;
(H) as of any date of determination after the February 2008
Distribution Date and on or before the August 2008 Distribution Date, is
equal to the then aggregate Uncertificated Principal Balances of REMIC
Regular Interests, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0,
LB, LC, LD, LE, LF-A, LF-B, LF-C, LF-D, LG-B, LG-C and LL;
(I) as of any date of determination after the August 2008 Distribution
Date and on or before the February 2009 Distribution Date, is equal to the
then aggregate Uncertificated Principal Balances of REMIC Regular
Interests, LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-1-2-L, LA-2, LB, LC, LD, LE,
LF-A, LF-B, LF-C, LF-D, LG-C and LL;
(J) as of any date of determination after the February 2009
Distribution Date and on or before the August 2009 Distribution Date, is
equal to the then aggregate Uncertificated Principal Balances of REMIC
Regular Interests LA-1-2-J, LA-1-2-K, LA-1-2-L, LA-2, LB, LC, LD, LE, LF-B,
LF-C, LF-D and LL;
(K) as of any date of determination after the August 2009 Distribution
Date and on or before the February 2010 Distribution Date, is equal to the
then aggregate Uncertificated Principal Balances of REMIC Regular
Interests, LA-1-2-K, LA-1-2-L, LA-2, LB, LC, LD, LE, LF-C, LF-D and LL;
(L) as of any date of determination after the February 2010
Distribution Date and on or before the August 2010 Distribution Date, is
equal to the then aggregate Uncertificated Principal Balances of REMIC
Regular Interests LA-1-2-L, LA-2, LB, LC, LD, LE, LF-D and LL;
(M) with respect to any Distribution Date occurring after the
Distribution Date in August 2010, zero.
"Class X-2 Pass-Through Rate": With respect to the Class X-2 Certificates,
(i) for the initial Distribution Date, 0.389% per annum;
(ii) for any Distribution Date after the initial Distribution Date and on
or prior to the August 2010 Distribution Date, the per annum rate, expressed as
a percentage, obtained by dividing (a) the sum of the products of (I) the
Uncertificated Principal
34
Balance of each REMIC Regular II Interest XX-0-0-X, XX-0-0-X, XX-0-0-X,
XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K,
LA-1-2-L, LA-2, LB, LC, LD, LE, LF-A, LF-B, LF-C, LF-D, LG-A, LG-B, LG-C, LH-A,
LH-B, LJ-A, LJ-B, LJ-C, LK-A, LK-B and LL immediately prior to such Distribution
Date and (II) the related Component Class X-2 Strip Rate for such Distribution
Date by (b) the Class X-2 Notional Amount; and
(iii) for any Distribution Date occurring after the August 2010
Distribution Date, 0% per annum.
"Closing Date": August 28, 2003.
"CMSA": The Commercial Mortgage Securities Association, or any association
or organization that is a successor thereto. If neither such association nor any
successor remains in existence, "CMSA" shall be deemed to refer to such other
association or organization as may exist whose principal membership consists of
servicers, trustees, certificateholders, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and whose principal purpose is
the establishment of industry standards for reporting transaction-specific
information relating to commercial mortgage pass-through certificates and
commercial mortgage-backed bonds and the commercial mortgage loans and
foreclosed properties underlying or backing them to investors holding or owning
such certificates or bonds, and any successor to such other association or
organization. If an organization or association described in one of the
preceding sentences of this definition does not exist, "CMSA" shall be deemed to
refer to such other association or organization as shall be selected by the
Master Servicer and reasonably acceptable to the Trustee, the Special Servicer
and the Majority Certificateholder of the Controlling Class.
"CMSA Bond Level File": The data file substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA(R)
Bond Level File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Collateral Summary File": The data file substantially in the form of,
and containing the information called for in, the downloadable form of the
"CMSA(R) Collateral Summary File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Comparative Financial Status Report": The report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Comparative Financial Status Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally.
35
"CMSA Delinquent Loan Status Report": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Financial File": The data file substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA(R)
Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Liquidation Report": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Historical Liquidation Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan Report": The
report substantially in the form of, and containing the information called for
in, the downloadable form of the "Historical Loan Modification and Corrected
Mortgage Loan Report" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Loan Level Reserve/Letter of Credit Report": The report substantially
in the form of, and containing the information called for in, the downloadable
form of the "CMSA Loan Level Reserve/Letter of Credit Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Periodic Update File": The data file substantially in the form
of, and containing the information called for in, the downloadable form of the
"CMSA(R) Loan Periodic Update File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Loan Setup File": The data file substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA(R)
Loan Setup File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet": The worksheet(s) substantially in the form
of, and containing the information called for in, the downloadable form of the
"Commercial NOI Adjustment Worksheet," "Multifamily NOI Adjustment Worksheet,"
"Lodging NOI Adjustment
36
Worksheet" and/or "Healthcare NOI Adjustment Worksheet," as applicable,
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be recommended by the CMSA for commercial mortgage
securities transactions generally.
"CMSA Operating Statement Analysis Report": The report(s) substantially in
the form of, and containing the information called for in, the downloadable form
of the "Commercial Operating Statement Analysis Report," "Multifamily Operating
Statement Analysis Report," "Lodging Operating Statement Analysis Report" and/or
"Healthcare Operating Statement Analysis Report," as applicable, available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Property File": The data file substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA(R)
Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA REO Status Report": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally, or with respect to (i)
the Xxxx Xxxxxxx Tower Mortgage Loan, the equivalent status report prepared by
the LB-UBS 2003-C5 Master Servicer and (ii) the Boulevard Mall Mortgage Loan,
the equivalent status report prepared by the GE 2003-C2 Master Servicer.
"CMSA Servicer Watch List": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Servicer
Watch List" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Special Servicer Loan File": The report substantially in the form of,
and containing the information called for in, the downloadable form of the "CMSA
Special Servicer Loan File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Website": The website of the CMSA located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date and any Mortgage
Loan or Serviced Whole Loan, the period commencing immediately following the
prior such period (or,
37
in the case of the initial Collection Period, commencing immediately following
the Cut-off Date for such Mortgage Loan or Serviced Whole 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.
"Compensating Interest Payments": Any payment required to be made by the
Master Servicer pursuant to Section 3.20(f) to cover Prepayment Interest
Shortfalls and Extraordinary Prepayment Interest Shortfalls or Section 3.20(e)
to cover Balloon Payment Interest Shortfalls.
"Component Class X-1 Strip Rate": As to each of the Class XX-0-0-X,
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I,
LA-1-2-J, LA-1-2-K, LA-1-2-L, LA-2, LB, LC, LD, LE, LF-A, LF-B, LF-C, LF-D,
LG-A, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LK-A, LK-B and LL Components,
the Class LA-1-2-A Component Class X-1 Strip Rate, the Class LA-1-2-B Component
Class X-1 Strip Rate, the Class LA-1-2-C Component Class X-1 Strip Rate, the
Class LA-1-2-D Component Class X-1 Strip Rate, the Class LA-1-2-E Component
Class X-1 Strip Rate, the Class LA-1-2-F Component Class X-1 Strip Rate, the
Class LA-1-2-G Component Class X-1 Strip Rate, the Class LA-1-2-H Component
Class X-1 Strip Rate, the Class LA-1-2-I Component Class X-1 Strip Rate, the
Class LA-1-2-J Component Class X-1 Strip Rate, the Class LA-1-2-K Component
Class X-1 Strip Rate, the Class LA-1-2-L Component Class X-1 Strip Rate, the
Class LA-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 LE Component Class X-1 Strip Rate, the LF-A Component
Class X-1 Strip Rate, the Class LF-B Component Class X-1 Strip Rate, the Class
LF-C Component Class X-1 Strip Rate, the Class LF-D Component Class X-1 Strip
Rate, the Class LG-A Component Class X-1 Strip Rate, the Class LG-B Component
Class X-1 Strip Rate, the Class LG-C Component Class X-1 Strip Rate, the Class
LH-A Component Class X-1 Strip Rate, the Class LH-B Component Class X-1 Strip
Rate, the Class LJ-A Component Class X-1 Strip Rate, the Class LJ-B Component
Class X-1 Strip Rate, the Class LJ-C Component Class X-1 Strip Rate, the Class
LK-A Component Class X-1 Strip Rate, the Class LK-B Component Class X-1 Strip
Rate or the Class LL Component Class X-1 Strip Rate, as applicable.
"Component Class X-2 Strip Rate": As to each of the Class XX-0-0-X,
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I,
LA-1-2-J, LA-1-2-K, LA-1-2-L, LA-2, LB, LC, LD, LE, LF-A, LF-B, LF-C, LF-D,
LG-A, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X, LK-A, LK-B and LL Components,
the Class LA-1-2-A Component Class X-2 Strip Rate, the Class LA-1-2-B Component
Class X-2 Strip Rate, the Class LA-1-2-C Component Class X-2 Strip Rate, the
Class LA-1-2-D Component Class X-2 Strip Rate, the Class LA-1-2-E Component
Class X-2 Strip Rate, the Class LA-1-2-F Component Class X-2 Strip Rate, the
Class LA-1-2-G Component Class X-2 Strip Rate, the Class LA-1-2-H Component
Class X-2 Strip Rate, the Class LA-1-2-I Component Class X-2 Strip Rate, the
Class LA-1-2-J Component Class X-2 Strip Rate, the Class LA-1-2-K Component
Class X-2 Strip Rate, the Class LA-1-2-L Component Class X-2 Strip Rate, the
Class LA-2 Component Class X-
38
2 Strip Rate, the Class LB Component Class X-2 Strip Rate, the Class LC
Component Class X-2 Strip Rate, the Class LD Component Class X-2 Strip Rate, the
LE Component Class X-2 Strip Rate, the LF-A Component Class X-2 Strip Rate, the
Class LF-B Component Class X-2 Strip Rate, the Class LF-C Component Class X-2
Strip Rate, the Class LF-D Component Class X-2 Strip Rate, the Class LG-A
Component Class X-2 Strip Rate, the Class LG-B Component Class X-2 Strip Rate,
the Class LG-C Component Class X-2 Strip Rate, the Class LH-A Component Class
X-2 Strip Rate, the Class LH-B Component Class X-2 Strip Rate, the Class LJ-A
Component Class X-2 Strip Rate, the Class LJ-B Component Class X-2 Strip Rate,
the Class LJ-C Component Class X-2 Strip Rate, the Class LK-A Component Class
X-2 Strip Rate, the Class LK-B Component Class X-2 Strip Rate or the Class LL
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, for Certificate Registrar purposes, is located at
Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000, Attention: Corporate Trust Services (CMBS)-GMAC Commercial Mortgage
Securities, Inc. Series 2003-C2 and, for all other purposes, at 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services
(CMBS)-GMAC Commercial Mortgage Securities, Inc. Series 2003-C2.
"Corrected Mortgage Loan": Any Mortgage Loan (including each
Cross-Collateralized Mortgage Loan relating to such Mortgage Loan, but excluding
the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) or
any Serviced Whole Loan, as the case may be, 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 Serviced Whole 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 Lease": With respect to a Credit Lease Loan, if any, the lease
agreement between the Mortgagor as lessor and the Tenant as lessee of the
related Mortgaged Property.
39
"Credit Lease Loan": Any Mortgage Loan that is identified as a "Credit
Lease Loan" on the Mortgage Loan Schedule.
"Cross-Collateralized Mortgage Loans": Any two or more Mortgage Loans
listed on the Mortgage Loan Schedule that are cross-collateralized with each
other.
"Current Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to the aggregate of the following (without duplication):
(a) the principal portions of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments due or deemed due, as the case
may be, in respect of the Mortgage Loans and any related REO Loans for
their respective Due Dates occurring during the same calendar month as such
Distribution Date;
(b) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
(c) with respect to any Balloon Mortgage Loan as to which the related
Stated Maturity Date occurred or any ARD Loan as to which the related
Anticipated Repayment Date occurred, during or prior to the related
Collection Period, any payment of principal (exclusive of any Principal
Prepayment and any amount described in subclause (d) below) that was made
by or on behalf of the related Mortgagor during the related Collection
Period, net of any portion of such payment that represents a recovery of
the principal portion of any Monthly Payment (other than a Balloon Payment)
due, or the principal portion of any Assumed Monthly Payment deemed due, in
respect of such Mortgage Loan on a Due Date during or prior to the same
calendar month as such Distribution Date and not previously recovered;
(d) that portion of all Liquidation Proceeds (exclusive of any Excess
Liquidation Proceeds) and Insurance Proceeds received on or in respect of
the Mortgage Loans during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal
thereof, in each case net of any Liquidation Expenses and any portion of
such amounts that represents a recovery of the principal portion of any
Monthly Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Monthly Payment deemed due, in respect of any such
Mortgage Loan on a Due Date during or prior to the same calendar month as
such Distribution Date and not previously recovered; and
(e) that portion of all Liquidation Proceeds (exclusive of any Excess
Liquidation Proceeds), Insurance Proceeds and REO Revenues received on or
in respect of any REO Properties during the related Collection Period that
were identified and applied by the Master Servicer as recoveries of
principal of the related REO Loans, in each case net of any Liquidation
Expenses and any portion of such amounts that represents a recovery of the
principal portion of any Monthly Payment (other than a Balloon Payment)
due, or of the principal portion of any Assumed Monthly Payment deemed due,
in respect of any such REO Loan or the related Mortgage Loan on a Due
40
Date during or prior to same calendar month as such Distribution Date and
not previously recovered.
"Current Ratings Report". With respect to any Credit Lease Loan, a report
or reports, dated as of a date no earlier than three Business Days prior to the
related Determination Date, setting forth: (i) the publicly available corporate
credit rating of Standard & Poor's for the Tenant and any Guarantor as of that
date, (ii) the publicly available corporate credit rating of Standard & Poor's
for such Tenant or Guarantor included in the Current Ratings Report 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.
"Custodian": A Person who is at any time appointed by the Trustee pursuant
to Section 8.11 as a document custodian for the Mortgage Files, which Person
shall not be the Depositor, any Mortgage Loan Seller or an Affiliate of any of
them. The Trustee shall act as the initial Custodian.
"Cut-off Date": With respect to any Mortgage Loan or Serviced Companion
Loan, the Due Date for such Mortgage Loan or Serviced Companion Loan in August
2003.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan or
Serviced Companion Loan, the outstanding principal balance of such Mortgage Loan
or Serviced 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.
"DDR Portfolio Companion Loan Holders": GSMC or any subsequent holder of
either of the DDR Portfolio Companion Loans.
"DDR Portfolio Companion Loans": As defined in the Preliminary Statement.
"DDR Portfolio Intercreditor Agreement": With respect to the DDR Portfolio
Whole Loan, that certain Notes Intercreditor Agreement, dated as of August 1,
2003, among GSMC, as the A1 Noteholder, GSMC, as the A2 Noteholder and GSMC, as
the A3 Noteholder, as amended from time to time in accordance with its terms.
"DDR Portfolio Mortgage Loan": As defined in the Preliminary Statement.
"DDR Portfolio Whole Loan": As defined in the Preliminary Statement.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan (or group
of Cross-Collateralized Mortgage Loans) or any Serviced Whole Loan, for any
specified period, the debt service coverage ratio calculated in accordance with
the applicable Servicer Report using the methodologies set forth in Exhibit F.
"Default Interest": With respect to any Mortgage Loan (or related REO Loan)
or any Serviced Companion Loan, any amounts collected thereon, other than
interest at the Revised Rate accrued on any ARD Loan after its Anticipated
Repayment Date or Excess Interest accrued on the Leasing Conditions Loan, after
the occurrence of a Leasing Condition Failure, late payment charges and
Prepayment Premiums, that represent penalty interest in excess of interest
41
on the principal balance of such Mortgage Loan (or REO Loan) and any related
Serviced Companion Loan, accrued at the related Mortgage Rate.
"Defaulted Mortgage Loan": A Mortgage Loan or Serviced Companion Loan that
is delinquent in an amount equal to at least two Monthly Payments or is
delinquent thirty days or more in respect of its Balloon Payment, if any, in
either case such delinquency to be determined without giving effect to any grace
period permitted by the related Mortgage or Mortgage Note and without regard to
any acceleration of payments under the related Mortgage and Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": Noncallable government obligations of (or
non-callable obligations, fully guaranteed as to timely payment by) the United
States of America, as are permitted under the terms of a Mortgage Note or
related Mortgage Loan documents, but only if such obligations or assets
constitute "government securities" under the defeasance rule of the REMIC
Provisions.
"Defeasance Loan": Any Mortgage Loan that is designated as such on the
Mortgage Loan Schedule and any related Serviced Companion Loan.
"Defeasance Option": The right of a Mortgagor, pursuant to the terms of the
related Mortgage Note or related Mortgage Loan documents, to obtain a release of
any portion of the related Mortgaged Property from the lien of the related
Mortgage upon the pledge to the Trustee of Defeasance Collateral.
"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.
"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.
42
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Designated Sub-Servicer": Any Sub-Servicer set forth on the Additional
Servicing Fee Schedule and any successor thereto under the related Designated
Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement": With respect to any Additional
Servicing Fee Mortgage Loan, the agreement among the Master Servicer, the
applicable Designated Sub-Servicer, Archon and in the case of certain
sub-servicing agreements, GSMC, pursuant to which the Designated Sub-Servicer
agrees to service the Additional Servicing Fee Mortgage Loans.
"Determination Date": With respect to any Distribution Date, the first day
of the month in which such Distribution Date occurs, or if such first day is not
a Business Day, the Business Day immediately following.
"Directing Certificateholder": The controlling class of certificateholders
of any securitization trust into which a Serviced Companion Loan is deposited,
as such term is defined in the applicable Serviced Companion Loan Securitization
Agreement.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not (within the meaning of
Treasury Regulations Section 1.512(b)-1(c)(5)) customarily provided to tenants
in connection with the rental of space for occupancy, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers in the ordinary course of a trade or business, the performance
of any construction work thereon or any use of such REO Property in a trade or
business, in each case other than through an Independent Contractor; provided,
however, that the Trustee (or the Special Servicer on behalf of the Trustee)
shall not be considered to Directly Operate an REO Property solely because the
Trustee (or the Special Servicer on behalf of the Trustee) establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance, or makes decisions as to repairs (of the type that would be
deductible under Code Section 162) or capital expenditures with respect to such
REO Property.
"Discount Rate": With respect to each Mortgage Loan and each Serviced
Companion Loan, if applicable, as to which there has been a prepayment during a
Collection Period and for which a Prepayment Premium is collected, the yield
(compounded monthly) for "This Week" as reported by the Federal Reserve Board in
Federal Reserve Statistical Release H.15(519) for the constant maturity treasury
having a maturity coterminous with the Anticipated Repayment Date, in the case
of an ARD Loan, or the Maturity Date, in the case of each other Mortgage Loan or
Serviced Companion Loan, of such Mortgage Loan or Serviced Companion Loan as of
the related Determination Date. If there is no Discount Rate for instruments
having a maturity coterminous with the Maturity Date or Anticipated Repayment
Date, as applicable, of the applicable Mortgage Loan or Serviced Companion Loan,
then the Discount Rate will be equal to the linear interpolation of the yields
of the constant maturity treasuries with maturities next longer and shorter than
such Maturity Date or Anticipated Repayment Date, as the case may be.
43
"Discount Rate Fraction": With respect to the distribution of any
Prepayment Premium received with respect to any Mortgage Loan to the Holders of
any Class of Principal Balance Certificates on any Distribution Date, a fraction
(not greater than 1.0 or less than zero), (a) the numerator of which is equal to
the excess, if any, of (x) the Pass-Through Rate for such Class of Certificates
over (y) the relevant Discount Rate and (b) the denominator of which is equal to
the excess, if any, of (x) the Mortgage Rate of the related Mortgage Loan over
(y) the relevant Discount Rate.
"Distributable Certificate Interest": With respect to any Class of REMIC
III Regular Certificates, for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by that portion, if any, of the Net Aggregate
Prepayment Interest Shortfall, if any, for such Distribution Date allocated to
such Class of Certificates as set forth below. The Net Aggregate Prepayment
Interest Shortfall, if any, for each Distribution Date shall be allocated on
such Distribution Date among the REMIC III Regular Certificates, pro rata, in
accordance with the respective amounts of Accrued Certificate Interest for such
Classes of Certificates for such Distribution Date.
"Distribution Account": The segregated account(s) or subaccount(s) created
and maintained by the Trustee pursuant to Section 3.04(b) 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
2003-C2." Any such account or subaccount shall be an Eligible Account.
"Distribution Date": The 10th day of any month, or if such 10th day is not
a Business Day, the Business Day immediately following, commencing in September
2003.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.02(e).
"Due Date": With respect to (i) any Mortgage Loan or Serviced 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 Serviced 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 Serviced 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) "F-1+" by
Fitch, 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) "A+" by Fitch, if the deposits are to be held in the account more
than 30 days, or (ii) a segregated trust account or accounts maintained in the
trust department of the Trustee or other financial institution subject to
regulations regarding fiduciary funds on deposit similar to
44
Section 9.10(b) of Title 12 of the Code of Federal Regulations or (iii) an
account or accounts of a depository institution acceptable to each Rating
Agency, as evidenced by written confirmation from such Rating Agency to the
effect that use of any such account as the Certificate Account or the
Distribution Account would not result in the downgrade, qualification or
withdrawal of the rating then assigned to any Class of Certificates or, in the
case of an account that relates solely to a Serviced Companion Loan, any
Serviced Companion Loan Securities by such Rating Agency.
"Emergency Advance": Any Servicing Advance that must be made within five
Business Days by the Master Servicer (at the direction of the Special Servicer)
in order to avoid any material penalty, any material harm to a Mortgaged
Property or any other material adverse consequence to the Trust Fund.
"Environmental Assessment": A "Phase I assessment" conducted in accordance
with ASTM Standard E 1527-93 or any successor thereto published by ASTM.
"Environmental Policy": The Secured Creditor Impaired Property Policies
(Portfolio) issued by American International Group, Inc. with respect to the
Mortgaged Properties listed on Schedule II.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section 7.01(a).
"Excess Interest": With respect to each ARD Loan, if any, and the Leasing
Conditions Loan, interest accrued on such Mortgage 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 Prepayment in full had been made with respect to
such Mortgage Loan on the Due Date immediately following the date on which such
proceeds were received.
"Excess Liquidation Proceeds Reserve Account": The segregated account or
subaccount created and maintained by the Trustee pursuant to Section 3.04(d) in
trust for the Certificateholders, which shall be entitled "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 2003-C2--Excess Liquidation Proceeds Reserve Account." Any
such account shall be an Eligible Account.
45
"Excess Rate": With respect to (i) each ARD Loan, if any, after the related
Anticipated Repayment Date and (ii) the Leasing Conditions Loan, after the date
on which a Leasing Conditions Failure has occurred, the excess of (A) the
applicable Revised Rate over (B) the applicable initial Mortgage Rate, each as
set forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Extraordinary Prepayment Interest Shortfall": With respect to any 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 applied to such Late Due Date Mortgage
Loan prior to such Mortgage Loan's Due Date in the next succeeding Collection
Period, the amount of interest that would have accrued at the related Net
Mortgage Rate on the amount of such Principal Prepayment from the date as of
which such Principal Prepayment was received to but not including the Due Date
of such Mortgage Loan in the next succeeding Collection Period, to the extent
not collected from the related Mortgagor (without regard to any Prepayment
Premium or Excess Interest that may have been collected) and to the extent that
any portion thereof does not represent a Balloon Payment Interest Shortfall.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination by the Special Servicer
with respect to any Defaulted Mortgage Loan or REO Property (other than a
Mortgage Loan or REO Property, as the case may be, that was purchased by a
Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement or by GMACCM pursuant to Section 4 of the Supplemental Agreement, as
applicable, by the Majority Certificateholder of the Controlling Class or the
applicable Mortgage Loan Seller pursuant to Section 3.18, or by the Master
Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor pursuant to Section 9.01) that, in the reasonable and good faith
judgment of the Special Servicer, there has been a recovery of all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries that, in the
Special Servicer's judgment, exercised without regard to any obligation of the
Master Servicer or the Special Servicer to make payments from its own funds
pursuant to Section 3.07(b), will ultimately be recoverable.
"Fitch": Fitch, Inc. or its successor in interest. If no such rating agency
nor any successor remains in existence, "Fitch" 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
Fitch, Inc. herein referenced shall be deemed to refer to the equivalent ratings
of the party so designated.
"Fixed Rate Mortgage Loan": A Mortgage Loan as to which the related
Mortgage Note provides, as of the Closing Date, for a Mortgage Rate that remains
fixed through the remaining
46
term thereof (without regard to any extension at the Mortgagor's or the
mortgagee's option under the terms of the related Mortgage Loan documents).
"FNMA": Federal National Mortgage Association or any successor thereto.
"Form 10-K Certification": A certification described in Section 8.14
hereof, substantially in the form of Exhibit M-1 attached hereto.
"GACC": German American Capital Corporation and its successors and assigns.
"GE 2003-C2 Fiscal Agent": As defined in the Preliminary Statement.
"GE 2003-C2 Master Servicer": As defined in the Preliminary Statement.
"GE 2003-C2 Pooling and Servicing Agreement": As defined in the Preliminary
Statement.
"GE 2003-C2 Special Servicer": As defined in the Preliminary Statement.
"GE 2003-C2 Trustee": As defined in the Preliminary Statement.
"GMACCM": GMAC Commercial Mortgage Corporation or its successor in
interest.
"Geneva Commons Companion Loan": As defined in the Preliminary Statement.
"Geneva Commons Companion Loan Holder": GSMC or any subsequent holder of
the Geneva Commons Companion Loan.
"Geneva Commons Intercreditor Agreement": With respect to the Geneva
Commons Whole Loan, that certain Notes Intercreditor Agreement, dated as of
August 1, 2003, among GSMC, as the A1 Noteholder and GSMC, as the A2 Noteholder,
as amended from time to time in accordance with its terms.
"Geneva Commons Mortgage Loan": As defined in the Preliminary Statement.
"Geneva Commons Whole Loan": As defined in the Preliminary Statement.
"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 any Adjustable Rate Mortgage Loan (and any
successor REO Loan), if any, the fixed number of percentage points set forth in
the Mortgage Loan Schedule that is added to the applicable value of the related
Index on each Interest Rate
47
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.
"GSMC": Xxxxxxx Xxxxx Mortgage Company and its successors and assigns.
"Guarantor": The guarantor under any Guaranty with respect to any Credit
Lease.
"Guaranty": With respect to any Credit Lease Loan, a guaranty agreement
executed by an affiliate of the related Tenant that guarantees the Tenant's
obligations under the related Credit Lease.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, each Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee 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 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, the
Trust Fund or any Serviced Companion Loan Holder, delivered to the Trustee), so
long as REMIC I does not receive or derive any income from such Person;
provided, that the relationship between such Person and REMIC I is at arm's
length, all within the meaning of Treasury Regulation Section 1.856-4(b)(5), or
any other Person upon receipt by the Trustee of an Opinion of Counsel, which
shall be at no expense to the Trustee or the Trust Fund, to the effect that the
taking of any action in respect of any REO
48
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code), or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property.
"Index": With respect to any Adjustable Rate Mortgage Loan (and any
successor REO Loan), for each Interest Rate Adjustment Date, the base index used
to determine the new Mortgage Rate in effect thereon as specified in the related
Mortgage Note. If the Index currently in effect for any Adjustable Rate Mortgage
Loan (or successor REO Loan) ceases to be available, the Master Servicer shall,
subject to Section 3.20(a) and the terms of the related Mortgage Note, select a
comparable alternative index.
"Initial Class Principal Balance": With respect to any Class of Principal
Balance Certificates, the initial Class Principal Balance thereof as of the
Closing Date, in each case as set forth in the Preliminary Statement.
"Initial Class Notional Amount": The Initial Class X-1 Notional Amount or
the Initial Class X-2 Notional Amount, as applicable.
"Initial Class X-1 Notional Amount": With respect to the Class X-1
Certificates, the initial Class Notional Amount thereof as of the Closing Date,
equal to $1,290,666,634.
"Initial Class X-2 Notional Amount": With respect to the Class X-2
Certificates, the initial Class Notional Amount thereof as of the Closing Date,
equal to $1,209,629,000.
"Initial Resolution Period": As defined in Section 2.03(a).
"Insurance Policy": With respect to any Mortgage Loan or any Serviced Whole
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 Serviced Whole Loan or the related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property or released to the Mortgagor, in either case, in accordance with the
Servicing Standard (including any amounts paid by the Master Servicer or Special
Servicer pursuant to Section 3.07) and applicable law.
"Interest Accrual Period": With respect to any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs.
"Interest Rate Adjustment Date": With respect to any Adjustable Rate
Mortgage Loan (and any successor REO Loan), if any, any date on which the
related Mortgage Rate is subject to adjustment pursuant to the related Mortgage
Note. The first Interest Rate Adjustment Date subsequent to the Cut-off Date for
any Adjustable Rate Mortgage Loan is specified in the Mortgage Loan Schedule,
and successive Interest Rate Adjustment Dates for such Mortgage
49
Loan (and any successor REO Loan) shall thereafter periodically occur with the
frequency specified in the Mortgage Loan Schedule.
"Interest Reserve Account": The segregated account or subaccount created
and maintained by the Trustee pursuant to Section 3.04(e) in trust for the
Certificateholders, which shall be entitled "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
2003-C2--Interest Reserve Account." Any such account or subaccount shall be an
Eligible Account.
"Interest Reserve Loans": Any Mortgage Loan bearing interest computed on an
actual/360 basis.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, any Holder of a Certificate or any Affiliate of any such Person.
"Investment Account": Each of the Certificate Account, the Distribution
Account, any Lock-Box Account, any Cash Collateral Account, the Interest Reserve
Account, the Special Reserve Account, each Whole Loan Custodial Account and any
REO Account.
"Investor Certification": A certification in the form of Exhibit H-1
hereto.
"Xxxx Xxxxxxx Tower Companion Loans": As defined in the Preliminary
Statement.
"Xxxx Xxxxxxx Tower B Notes": As defined in the Preliminary Statement.
"Xxxx Xxxxxxx Tower Co-Lender Agreement": With respect to the Xxxx
Xxxxxxx Tower Mortgage Loan and the Xxxx Xxxxxxx Tower Companion Loans, that
certain co-lender agreement, dated as of July 9, 2003, by and among the holder
of the Xxxx Xxxxxxx Tower Mortgage Loan, the holders of the Xxxx Xxxxxxx Tower
Companion Loans and the holders of the Xxxx Xxxxxxx Tower B Notes, as amended
from time to time in accordance with its terms.
"Xxxx Xxxxxxx Tower Mortgage Loan": As defined in the Preliminary
Statement.
"Late Collections": With respect to any Mortgage Loan or Serviced Whole
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 Serviced Whole
Loan (without regard to any acceleration of amounts due thereunder by reason of
default) on a Due Date in a previous Collection Period (or, in the case of a
Late Due Date Mortgage Loan, on any Due Date prior to the date of receipt) and
not previously recovered. With respect to any Distribution Date and any REO
Loan, all amounts received in connection with the related REO Property during
any Collection Period, whether as Insurance Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of principal or interest
due or deemed due in respect of such REO Loan or the predecessor Mortgage Loan
or Serviced Whole Loan (without regard to any acceleration of amounts due under
such predecessor Mortgage Loan or Serviced Whole Loan by reason of default) on a
Due Date in a previous Collection Period (or, in the case of a Late Due Date
Mortgage Loan, on any
50
Due Date prior to the date of receipt) and not previously recovered. The term
"Late Collections" shall specifically exclude Penalty Charges.
"Late Due Date Mortgage Loan": The Mortgage Loans (or successor REO Loan),
identified as loan numbers 1, 22, 34 and 82 on the Mortgage Loan Schedule with a
Due Date which occurs after the Determination Date in the same calendar month as
such Due Date.
"LB-UBS 2003-C5 Fiscal Agent": As defined in the Preliminary Statement.
"LB-UBS 2003-C5 Master Servicer": As defined in the Preliminary Statement.
"LB-UBS 2003-C5 Pooling and Servicing Agreement": As defined in the
Preliminary Statement.
"LB-UBS 2003-C5 Special Servicer": As defined in the Preliminary Statement.
"LB-UBS 2003-C5 Trustee": As defined in the Preliminary Statement.
"Leasing Conditions Failure": The failure of the conditions set forth in
Schedule 1.01 (78) of the related Loan Agreement for the Leasing Conditions
Loan, upon the occurrence of which a one-time increase in the Mortgage Rate will
occur.
"Leasing Conditions Loan": The Mortgage Loan (or successor REO Loan)
identified as loan number 78 on the Mortgage Loan Schedule.
"Liquidation Event": With respect to any Mortgage Loan or Serviced
Companion Loan, any of the following events: (i) such Mortgage Loan or Serviced
Companion Loan is paid in full; (ii) a Final Recovery Determination is made with
respect to such Mortgage Loan or Serviced 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 or the applicable Mortgage
Loan Seller pursuant to Section 3.18; or (vi) such Mortgage Loan is purchased by
the Master Servicer, the Majority Certificateholder of the Controlling Class or
the Depositor pursuant to Section 9.01. With respect to any REO Property (and
the related REO Loan), any of the following events: (i) a Final Recovery
Determination is made with respect to such REO Property; or (ii) such REO
Property is purchased by the Master Servicer, the Majority Certificateholder of
the Controlling Class or the Depositor pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred by the Special Servicer in connection with
the liquidation of any Specially Serviced Mortgage Loan or REO Property pursuant
to Section 3.09, 3.18 or 3.19 or final payoff of a Corrected Mortgage Loan
(including, without limitation, legal fees and expenses, committee or referee
fees and, if applicable, brokerage commissions, conveyance taxes, any
Liquidation Fee or Workout Fee associated with a final payoff of a Corrected
Mortgage Loan and any other unreimbursed Additional Trust Fund Expense
associated with such Mortgage Loan).
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"Liquidation Fee": With respect to each Specially Serviced Mortgage Loan or
REO Property (other than any Specially Serviced Mortgage Loan or REO Property
purchased by the Majority Certificateholder of the Controlling Class or the
applicable Mortgage Loan Seller pursuant to Section 3.18 or by the Master
Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor pursuant to Section 9.01), the fee designated as such and payable to
the Special Servicer pursuant to Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced Mortgage
Loan or REO Property as to which a Liquidation Fee is payable, 1.00%.
"Liquidation Proceeds": Cash amounts (other than Insurance Proceeds and REO
Revenues) received or paid by the Master Servicer or the Special Servicer in
connection with: (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation; (ii) the liquidation of
a Mortgaged Property or other collateral constituting security for a Defaulted
Mortgage Loan, through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and the terms and conditions
of the related Mortgage Note and Mortgage; (iii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iv) the purchase of a
Mortgage Loan by the Majority Certificateholder of the Controlling Class or the
applicable Mortgage Loan Seller pursuant to Section 3.18; (v) the repurchase of
a Mortgage Loan by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement or by GMACCM pursuant to Section 4 of the
Supplemental Agreement; (vi) the payment of any Substitution Shortfall Amount by
a Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan
Purchase Agreement or by GMACCM pursuant to Section 4 of the Supplemental
Agreement; or (vii) the purchase of a Mortgage Loan or REO Property by the
Master Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor pursuant to Section 9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan or Serviced Whole
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 Serviced Whole Loan, as the case may be, and the denominator of which is
the Appraised Value of the related Mortgaged Property as determined by an
Appraisal thereof.
"Lock-Box Account": With respect to any Mortgaged Property, if applicable,
any account created pursuant to any documents relating to a Mortgage Loan or
Serviced Whole 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 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 Serviced Whole
Loan serviced hereunder, the lock-box agreement, if any, between the originator
of such Mortgage Loan or Serviced Whole Loan and the Mortgagor, pursuant to
which the related Lock-Box Account, if any, is to be established.
52
"Loss Reimbursement Amount": With respect to any REMIC I Regular Interest
and any Distribution Date (except the initial Distribution Date, with respect to
which the Loss Reimbursement Amount for such REMIC I Regular Interest will be
zero), an amount equal to (a)(i) the Loss Reimbursement Amount with respect to
such REMIC I Regular Interest for the immediately preceding Distribution Date,
minus (ii) the aggregate of all reimbursements deemed made to REMIC II on the
immediately preceding Distribution Date pursuant to Section 4.01(a) with respect
to such REMIC I Regular Interest, plus (iii) the aggregate of all reductions
made to the Uncertificated Principal Balance of (and, accordingly, the aggregate
of all Realized Losses and Additional Trust Fund Expenses deemed allocated to)
such REMIC I Regular Interest on the immediately preceding Distribution Date
pursuant to Section 4.04(a), plus (b) one month's interest (calculated on the
basis of a 360-day year consisting of twelve 30-day months) on the amount
described in clause (a) at the REMIC I Remittance Rate applicable to such REMIC
I Regular Interest for the current Distribution Date.
"MAI": Member of Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes.
"Master Servicer": GMACCM, or any successor master servicer appointed as
herein provided.
"Master Servicer Remittance Date": The Business Day preceding each
Distribution Date.
"Master Servicing Fee": With respect to any Distribution Date and each
Mortgage Loan or Serviced Companion Loan and REO Loan serviced hereunder, that
portion of the Servicing Fee that has accrued at the Master Servicing Fee Rate.
"Master Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan serviced hereunder, 0.02% per annum. With respect to the Xxxx Xxxxxxx Tower
Mortgage Loan, 0.03% per annum, and the Boulevard Mall Mortgage Loan, 0.01% per
annum.
"Material Breach": A Breach that materially and adversely affects the value
of a Mortgage Loan, the related Mortgaged Property or the interests of the Trust
Fund therein or of any Certificateholder.
"Material Document Defect": A Document Defect that materially and adversely
affects the value of a Mortgage Loan, the related Mortgaged Property or the
interests of the Trust Fund therein or of any Certificateholder; provided,
however, that the absence of, or a material and adverse irregularity on the face
of, any of the following documents shall be presumed to be a Material Document
Defect: the original Mortgage Note (or a lost note affidavit and indemnity), an
original or executed copy of the Mortgage, an original or copy of the required
lender's title insurance policy (or in lieu thereof a marked-up title commitment
marked as binding and countersigned by the title company or its authorized
agent), the original or copy of any related letters of credit (except with
respect to the National Boulevard Mortgage Loan) or a copy of any related Ground
Lease from the Mortgage File.
53
"Maturity Date": With respect to any Mortgage Loan or Serviced 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 Serviced 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 Serviced Companion Loan granted or agreed to
by the Master Servicer or Special Servicer pursuant to Section 3.21 or (iv) in
the case of any ARD Loan, the Anticipated Repayment Date for such Mortgage Loan.
"Modified Mortgage Loan": Any Mortgage Loan or Serviced 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 Serviced Companion
Loan);
(B) except as expressly contemplated by the related Mortgage Loan
documents, results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount not less than the fair market value (as is), as
determined by an Appraisal delivered to the Special Servicer (at the
expense of the related Mortgagor and upon which the Special Servicer may
conclusively rely), of the property to be released; or
(C) in the good faith and reasonable judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or reduces
the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan or Serviced Companion
Loan, the scheduled monthly payment of principal and/or interest on such
Mortgage Loan or Serviced Companion Loan, including any Balloon Payment, which
is payable by a Mortgagor from time to time under the terms of the related
Mortgage Note(s) (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.
"Mortgage": With respect to any Mortgage Loan or Serviced Whole 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 or Serviced Companion
Loan, subject to Section 2.01(b), collectively the following documents:
(1) (A) in the case of each Mortgage Loan, 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
54
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 2003-C2, without recourse" and
(B) in the case of each Serviced Companion Loan, a copy of the executed
Mortgage Note for such Serviced Companion Loan;
(2) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording indicated thereon;
(3) the original or a copy of the assignment of the Mortgage, in
recordable form, executed by the most recent assignee of record thereof
prior to the Trustee, or if none by the originator, either in blank or in
favor of the Trustee (in such capacity) and with respect to the Serviced
Whole Loans, also to the Trustee, in its capacity as lead lender on behalf
of the Serviced Companion Loan Holders;
(4) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan or
Serviced Companion Loan, as the case may be, to the most recent assignee of
record thereof prior to the Trustee, if any, in each case with evidence of
recording thereon;
(5) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee, or, if none, by the originator, either in blank or in favor of the
Trustee (in such capacity), which assignment may be included as part of the
corresponding assignment of Mortgage, referred to in clause (3) above and
with respect to the Serviced Whole Loans, also to the Trustee, in its
capacity as lead lender on behalf of the Serviced Companion Loan Holders;
(6) an original or a copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan or
Serviced Companion Loan, as the case may be, to the most recent assignee of
record thereof prior to the Trustee, if any;
(7) an original assignment of any related Security Agreement (if such
item is a document separate from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the
originator, either in blank or in favor of the Trustee (in such capacity),
which assignment may be included as part of the corresponding assignment of
Mortgage referred to in clause (3) above and with respect to the Serviced
Whole Loans, also to the Trustee, in its capacity as lead lender on behalf
of the Serviced Companion Loan Holders;
55
(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 or Serviced Companion Loan, as the case may be, 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 or the Serviced
Companion Loan, as the case may be, 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 or the Serviced Companion Loan, as the case may be, (and each
assignee of record prior to the Trustee) in and to the personalty of the
Mortgagor at the Mortgaged Property (in each case with evidence of filing
thereon) and which were in the possession of the Mortgage Loan Seller (or
its agent) at the time the Mortgage Files were delivered and (B) if any
such security interest is perfected and the earlier UCC financing
statements and continuation statements were in the possession of the
Mortgage Loan Seller, a UCC financing statement executed by the most recent
assignee of record prior to the Trustee or, if none, by the originator,
evidencing the transfer of such security interest, either in blank or in
favor of the Trustee;
(12) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to above
was not signed by the Mortgagor;
(13) the related Ground Lease or a copy thereof, if any;
(14) if the Mortgage Loan or Serviced Companion Loan is a Credit Lease
Loan, an original of the credit lease enhancement insurance policy, if any,
obtained with respect to such Mortgage Loan or Serviced Companion Loan, as
the case may be, an original of the bond lease insurance policy, if any,
obtained with respect to such Mortgage Loan or Serviced Companion Loan and
an original of the residual value insurance policy, if any, obtained with
respect to such Mortgage Loan or Serviced Companion Loan;
56
(15) the original or a copy of any lockbox agreement or deposit
account or similar agreement;
(16) the original or a copy of any intercreditor agreement or side
letter with respect to the Mortgage Loan or Serviced Companion Loan;
(17) the original or a copy of any Environmental Policy;
(18) the original or a copy (if the original is held by the Master
Servicer) of any letter of credit and any related transfer documents;
(19) for a hospitality property, copies of franchise agreements, if
any, and franchisor comfort letters, if any; and
(20) a checklist of documents included in the Mortgage File,
provided, that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
Notwithstanding the foregoing, with respect to the Xxxx Xxxxxxx Tower
Mortgage Loan, "Mortgage File" shall mean the original Mortgage Note in the
amount of $75,000,000 pertaining to the Xxxx Xxxxxxx Tower Mortgage Loan, the
Xxxx Xxxxxxx Tower Co-Lender Agreement and copies of each other document
contained in the Mortgage File held by the LB-UBS 2003-C5 Trustee and, with
respect to the Boulevard Mall Mortgage Loan, "Mortgage File" shall mean the
original Mortgage Note in the amount of $48,728,500 pertaining to the Boulevard
Mall Mortgage Loan, the Boulevard Mall Intercreditor Agreement, the Boulevard
Mall Agreement Among Noteholders and copies of each other document contained in
the Mortgage File held by the GE 2003-C2 Trustee.
"Mortgage Loan": Each of the mortgage loans or mortgage loan interests held
by REMIC I, transferred and assigned to the Trustee pursuant to Section 2.01 and
from time to time held in the Trust Fund (including, without limitation, all
Replacement Mortgage Loans, REO Loans and Specially Serviced Mortgage Loans). As
used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage, participation certificate or agreement and/or other security documents
contained in the related Mortgage File. As used herein, unless specifically
provided otherwise, the term "Mortgage Loan" includes the DDR Portfolio Mortgage
Loan, the Geneva Commons Mortgage Loan, the Boulevard Mall Mortgage Loan and the
Xxxx Xxxxxxx Tower Mortgage Loan (which are part of the Trust Fund) but excludes
the DDR Portfolio Companion Loans, the Geneva Commons Companion Loan, the
Xxxxxxxxx Xxxx Xxxxxxxxx Xxxx, xxx Xxxxxxxxx Xxxx X Note, the Xxxx Xxxxxxx Tower
Companion Loans and the Xxxx Xxxxxxx B Notes (which are not part of the Trust
Fund).
"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.
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"Mortgage Loan Schedule": The list of Mortgage Loans transferred on the
Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Schedule I, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan number and name of the Mortgaged Property;
(ii) the street address (including city, state and zip code) of
the related Mortgaged Property;
(iii) the (A) Mortgage Rate in effect as of the Cut-off Date and
(B) whether such Mortgage Loan is an Adjustable Rate Mortgage Loan or
a Fixed Rate Loan;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the (A) remaining term to stated maturity, (B) with respect
to any ARD Loan, the Anticipated Repayment Date and (C) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(ix) in the case of any Adjustable Rate Mortgage Loan, the (A)
Index, (B) Gross Margin, (C) first Interest Rate Adjustment Date
following the Cut-off Date and the frequency of Mortgage Rate
adjustments, and (D) maximum and minimum lifetime Mortgage Rate;
(x) whether such Mortgage Loan is an ARD Loan, a Credit Lease
Loan, a Defeasance Loan, a Broker Strip Loan or an Additional
Servicing Fee Mortgage Loan;
(xi) in the case of a Credit Lease Loan, the identity of the
Tenant and the Guarantor under any applicable Guaranty, and the
publicly available corporate credit ratings of such Tenant and
Guarantor as of the Closing Date;
(xii) the Servicing Fee Rate; 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, (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": Each of GMACCM, GACC, GSMC and MSMC.
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"Mortgage Note": The original executed note evidencing the indebtedness of
a Mortgagor under a Mortgage Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans (including any REO
Loans and Replacement Mortgage Loans, but excluding Deleted Mortgage Loans). As
used herein, unless specifically provided otherwise, the term "Mortgage Pool"
includes the DDR Portfolio Mortgage Loan, the Geneva Commons Mortgage Loan, the
Boulevard Mall Mortgage Loan and the Xxxx Xxxxxxx Tower Mortgage Loan but
excludes the DDR Portfolio Companion Loans, the Geneva Commons Companion Loan,
the Xxxxxxxxx Xxxx Xxxxxxxxx Xxxx, xxx Xxxxxxxxx Xxxx X Note, the Xxxx Xxxxxxx
Tower Companion Loans and the Xxxx Xxxxxxx Tower B Notes.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Serviced
Companion Loan on or prior to its Maturity Date, the fixed or adjustable
annualized rate (not including, in the case of any ARD Loan or the Leasing
Conditions 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 Serviced 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
Serviced 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
Serviced Companion Loan had remained outstanding.
"Mortgaged Property": Individually and collectively, as the context may
require, the real property interest (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Mortgage Loan and, if applicable, its Serviced 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.
"MSMC": Xxxxxx Xxxxxxx Mortgage Capital Inc. and its successors and
assigns.
"National Boulevard Mortgage Loan": As defined in Section 2.01(b) of this
Agreement.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
Distribution Account for such Distribution Date pursuant to Section 3.20(f) in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to any Investment Account for any
Collection Period, the amount, if any, by which the aggregate of all interest
and other income realized during such Collection Period on funds relating to the
Trust Fund held in such account, exceeds
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the aggregate of all losses, if any, incurred during such Collection Period in
connection with the investment of such funds in accordance with Section 2.02(f)
and Section 3.06.
"Net Investment Loss": With respect to any Investment Account for any
Collection Period, the amount by which the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of
funds relating to the Trust Fund held in such account in accordance with Section
2.02(f) and Section 3.06, exceeds the aggregate of all interest and other income
realized during such Collection Period on such funds, but Net Investment Loss
shall not include any loss with respect to such investment which is incurred
solely as a result of the insolvency of the federally or state chartered
depository institution or trust company that holds such Investment Account so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made and also as of a date no earlier than 60 days prior to the
insolvency, and so long as such depository institution or trust company is not
an Affiliate of either the Master Servicer or the Special Servicer.
"Net Mortgage Rate": With respect to any Mortgage Loan, any Serviced
Companion Loan or any REO Loan, as of any date of determination, a rate per
annum equal to the related Mortgage Rate then in effect, minus the Servicing Fee
Rate, but, for purposes of calculating the REMIC I Remittance Rate, the REMIC II
Remittance Rate and Weighted Average Net Mortgage Rate, determined without
regard to any modification, waiver or amendment of the terms of such Mortgage
Loan or Serviced Companion Loan, whether agreed to by the Master Servicer or
Special Servicer or resulting from (i) the bankruptcy, insolvency or similar
proceeding involving the related Mortgagor or (ii) the increase in the interest
rate attributable to the Revised Rate to any ARD Loan or the Leasing Conditions
Loan and, with respect to any Mortgage Loan that does not accrue interest on the
basis of a 360-day year consisting of twelve 30-day months, the Net Mortgage
Rate of such Mortgage Loan for such purposes for any one-month preceding a
related Due Date will be the annualized rate at which interest would have to
accrue in respect of such loan on the basis of a 360-day year consisting of
twelve 30-day months in order to produce the aggregate amount of interest
actually accrued in respect of such loan during such one-month period at the
related Mortgage Rate (net of the related Servicing Fee Rate); provided,
however, that with respect to the Interest Reserve Loans, (i) the Net Mortgage
Rate for the one-month period preceding the Due Dates in (a) January of each
calendar year that is not a leap year and (b) February of each calendar year,
will be determined net of the Withheld Amounts and (ii) the Net Mortgage Rate
for the one-month period preceding the Due Dates in March of each calendar year
will be determined after taking into account the addition of the Withheld
Amounts.
"Net Operating Income": With respect to any Mortgaged Property, for any
specified period, the net operating income calculated in accordance with the
CMSA NOI Adjustment Worksheet using the methodologies set forth in Exhibit F.
"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 the Trustee, as applicable, will not be
ultimately recoverable (together
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with Advance Interest thereon) from Late Collections 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). Subject to Section 4.03(c), with respect to any
Serviced Companion Loan, any advance of principal and/or interest made, or
proposed to be made, on such Serviced Companion Loan which, in the judgment of
the applicable Serviced Companion Loan Master Servicer or Serviced Companion
Loan Trustee, will not ultimately be recoverable (together with any interest
thereon) from late payments, insurance proceeds, liquidation proceeds or any
other recovery on or in respect of such Serviced Companion Loan in accordance
with the related Serviced Companion Loan Securitization Agreement.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously made
or proposed to be made in respect of a Mortgage Loan (other than the Xxxx
Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) or any
Serviced Whole Loan or any REO Property (other than an REO Property related to
the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan)
which, in the judgment of the Master Servicer, the Special Servicer or the
Trustee, as applicable, will not be ultimately recoverable (together with
Advance Interest thereon) from Late Collections on or in respect of such
Mortgage Loan, Serviced Whole Loan or REO Property, which shall be evidenced by
an Officer's Certificate as provided by Section 3.11(h).
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class X-2, Class 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 Notice": As defined in Section 3.18.
"Option Purchase Price": As defined in Section 3.18.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof may have and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
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"Pass-Through Rate": With respect to:
(1) the Class X-1 Certificates, the Class X-1 Pass-Through Rate;
(2) the Class X-2 Certificates, the Class X-2 Pass-Through Rate;
(3) the Class A-1, Class A-2, Class B, Class C, Class D and Class E
Certificates, the fixed rate per annum specified for such Class in the
Preliminary Statement;
(4) the Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, 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.
"Payment Adjustment Date": With respect to each Adjustable Rate Mortgage
Loan, if any, any date on which the related Monthly Payment is subject to
adjustment pursuant to the related Mortgage Note. The first Payment Adjustment
Date subsequent to the Cut-off Date for each Adjustable Rate Mortgage Loan, if
any, is specified in the Mortgage Loan Schedule, and successive Payment
Adjustment Dates for such Adjustable Rate Mortgage Loan shall thereafter
periodically occur with the frequency specified in the Mortgage Loan Schedule.
"Payment Priority": With respect to any Class of Certificates, the priority
of the Holders thereof in respect of the Holders of the other Classes of
Certificates to receive distributions out of the Available Distribution Amount
for any Distribution Date, as set forth in Section 4.01(c) hereof.
"Penalty Charges": With respect to any Mortgage Loan or Serviced 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
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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;
(5) a money market fund rated by each Rating Agency in its highest
rating category and any other money market fund with respect to which a
Rating Agency Confirmation has been received;
(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
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or Serviced Companion Loan Securities by each such Rating Agency, as
evidenced in writing;
provided, however, that no instrument shall be a Permitted Investment (A) unless
it has a predetermined fixed dollar amount of principal due at maturity that
cannot vary or change, and its interest rate is tied to a single interest rate
index plus a single fixed spread (if any) and moves proportionately with such
index and (B) if it represents, (1) the right to receive only interest payments
with respect to the underlying debt instrument, (2) the right to receive both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity greater than 120% of the yield to
maturity at par of such underlying obligations, (3) an obligation that has a
remaining maturity of greater than 365 days from the date of acquisition
thereof. References herein to the highest rating available on money market funds
shall mean "AAAm" in the case of Standard & Poor's and "AAA" in the case of
Fitch, 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 "F-1+" in the case of Fitch.
"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
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) any electing large partnership under
Section 775 of the Code and (vi) any other Person so designated by the Trustee
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Residual Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Person": Any legal person, including, without limitation, any individual,
corporation, partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Plan": As defined in Section 5.02(c)(i).
"Post-Determination Date Payment Report". A report prepared by the Master
Servicer showing all payments received after the Determination Date.
"Preliminary Statement": The introductory section in this Agreement found
on pages 1 through 6 hereof.
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"Prepayment Assumption": A CPR of 0% and an assumption that a Principal
Prepayment in full will be made on any ARD Loan on its Anticipated Repayment
Date, used for determining the accrual of original issue discount, market
discount and premium, if any, on the REMIC I Regular Interests, the REMIC II
Regular Interests and the Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Mortgage Loan (other than
a Late Due Date Mortgage Loan, the Xxxx Xxxxxxx Tower Mortgage Loan or the
Boulevard Mall Mortgage Loan) or Serviced Companion 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 Serviced Companion Loan, as the case may be, in such Collection Period, the
amount of interest (net of related Servicing Fees and, if applicable, Excess
Interest) accrued on the amount of such Principal Prepayment during the period
from and after such Due Date, to the extent collected (without regard to any
Prepayment Premium that may have been collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan (other
than a Late Due Date Mortgage Loan, the Xxxx Xxxxxxx Tower Mortgage Loan or the
Boulevard Mall Mortgage Loan) or Serviced Companion 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 Serviced Companion
Loan, as the case may be, 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 Serviced 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).
"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, Serviced Companion 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 Principal Distribution Amount allocable to such Class of Certificates for
such Distribution Date and the denominator of which is the 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.
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"Principal Distribution Amount": With respect to any Distribution Date, the
aggregate of (i) the Current Principal Distribution Amount for such Distribution
Date and (ii) if such Distribution Date is after the initial Distribution Date,
the excess, if any, of the Principal Distribution Amount for the preceding
Distribution Date, over the aggregate distributions of principal made on the
Principal Balance Certificates in respect of such Principal Distribution Amount
on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor on a
Mortgage Loan or Serviced 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, each
Serviced Companion Loan Holder 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 July 31, 2003, as supplemented by the
Prospectus Supplement.
"Prospectus Supplement": The Prospectus Supplement, dated August 14, 2003,
relating to the offering of the Registered Certificates.
"PTCE 95-60": As defined in Section 5.02(c)(ii).
"Purchase Price": With respect to any Mortgage Loan, a price equal to the
following: (a) the outstanding principal balance of such Mortgage Loan as of the
date of purchase; plus (b) all accrued and unpaid interest on such Mortgage Loan
at the related Mortgage Rate in effect from time to time to but not including
the Due Date in the Collection Period of purchase; plus (c) all related
unreimbursed Servicing Advances; plus (d) all accrued and unpaid Advance
Interest in respect of related Advances; plus (e) if such Mortgage Loan is being
purchased by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement or by GMACCM pursuant to Section 4 of the
Supplemental Agreement, (i) all expenses incurred or to be incurred by the
Master Servicer, the Special Servicer, the Depositor and the Trustee in respect
of the Breach or Document Defect giving rise to the repurchase obligation and
(ii) the aggregate amount of all Special Servicing Fees, Advance Interest (to
the extent, if any, not included in clause (d) above) in respect of related
Advances and Additional Trust Fund Expenses incurred prior to such date of
purchase and, in each case, in respect of the related Mortgage Loan and, if the
applicable Mortgage Loan Seller repurchases such Mortgage Loan after more than
180 days following its receipt of notice of a material breach of a
representation or warranty, the applicable Mortgage Loan Seller will also be
required to pay a Liquidation Fee. 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 Document 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.
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"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 any ARD Loan, not greater
than, and not more than two years less than, that of the Deleted Mortgage Loan;
(vi) has an original Loan-to-Value Ratio not higher than that of the Deleted
Mortgage Loan and a current Loan-to-Value Ratio (equal to the principal balance
on the date of substitution divided by its Appraised Value as determined by an
Appraisal dated not more than twelve months prior to the date of substitution)
not higher than the then current Loan-to-Value Ratio of the Deleted Mortgage
Loan; (vii) will comply with all of the representations and warranties relating
to Mortgage Loans set forth in the related Mortgage Loan Purchase Agreement, as
of the date of substitution; (viii) has an Environmental Assessment relating to
the related Mortgaged Property in its Servicing File; (ix) has a Debt Service
Coverage Ratio equal to or greater than that of the Deleted Mortgage Loan; (x)
has been approved by the Majority Certificateholder of the Controlling Class
(and the applicable Mortgage Loan Seller shall pay the reasonable expenses of
the due diligence (including reasonable legal fees) incurred by the Majority
Certificateholder of the Controlling Class in reviewing any proposed Qualifying
Substitute Mortgage Loan); and (xi) as to which the Trustee has received an
Opinion of Counsel, at the related Mortgage Loan Seller's expense, that such
Qualifying Substitute Mortgage Loan is a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; provided, that no Qualifying
Substitute Mortgage Loan may have a Maturity Date after the date three years
prior to the Rated Final Distribution Date; provided, further, that no such
Qualifying Substitute Mortgage Loan shall be substituted for a Deleted Mortgage
Loan unless Rating Agency Confirmation is obtained. In the event that either one
mortgage loan is substituted for more than one Deleted Mortgage Loan or more
than one mortgage loan is substituted for one or more Deleted Mortgage Loans,
then (a) the principal balance referred to in clause (i) above shall be
determined on the basis of aggregate principal balances and (b) the rates
referred to in clauses (ii) and (iii) above and the remaining term to stated
maturity referred to in clause (v) above shall be determined on a weighted
average basis. Whenever a Qualifying Substitute Mortgage Loan is substituted for
a Deleted Mortgage Loan
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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 May 2040.
"Rating Agency": Each of Fitch and Standard & Poor's; provided, to the
extent it applies to a Serviced Whole Loan or Serviced Companion Loan, each
reference herein to a "Rating Agency" shall also include any rating agency then
rating any related Serviced Companion Loan Securities.
"Rating Agency Confirmation": With respect to any matter and any Rating
Agency, where required under this Agreement, confirmation in writing by such
Rating Agency that a proposed action, failure to act, or other event specified
herein will not in and of itself result in the withdrawal, downgrade or
qualification of the rating assigned by such Rating Agency to any Class of
Certificates or Serviced Companion Loan Securities, as applicable, then rated by
such Rating Agency. For all purposes of this Agreement, the placement by a
Rating Agency of any Class of Certificates or Serviced Companion Loan
Securities, as applicable, on "negative credit watch" shall constitute a
qualification of such Rating Agency's rating of such Certificates or Serviced
Companion Loan Securities, as applicable.
"Realized Loss": With respect to each Defaulted Mortgage Loan as to which a
Final Recovery Determination has been made, or with respect to any REO Loan as
to which a Final Recovery Determination has been made as to the related REO
Property, an amount (not less than zero) equal to (i) the unpaid principal
balance of such Mortgage Loan or REO Loan, as the case may be, as of the Due
Date immediately preceding the date the Final Recovery Determination was made,
plus (ii) all accrued but unpaid interest on such Mortgage Loan or REO Loan, as
the case may be (including all Special Servicing Fees, Workout Fees or other
fees, expenses or items with respect to such Mortgage Loan, Serviced Companion
Loan or REO Loan that caused Distributable Certificate Interest not to be paid
in full in any prior Interest Accrual Period, but without taking into account
the amounts described in clause (iv) of this sentence), at the related Mortgage
Rate to but not including the Due Date in the Collection Period (or, in the case
of a Late Due Date Mortgage Loan, the Due Date in the Collection Period
immediately following the Collection Period) in which the Final Recovery
Determination was made, plus (iii) any related unreimbursed Servicing Advances
and Delinquency Advances (to the extent not included in clause (ii) above) as of
the commencement of the Collection Period in which the Final Recovery
Determination was made, together with any new related Servicing Advances made
during such Collection Period, minus (iv) all payments and proceeds, if any,
received in respect of such Mortgage Loan or REO Loan, as the case may be,
during the Collection Period in which such Final Recovery Determination was made
(net of any related Liquidation Expenses and compensation payable to the Master
Servicer, the Special Servicer or the Trustee paid therefrom).
With respect to any Mortgage Loan or Serviced 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 Serviced Whole Loan
68
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 Serviced Companion Loan as to which
the Mortgage Rate thereon has been permanently reduced for any period in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan or
Serviced Whole Loan granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.21, the amount of the consequent reduction in the
interest portion of each successive Monthly Payment due thereon. Each such
Realized Loss shall be deemed to have been incurred on the Due Date for each
affected Monthly Payment.
"Record Date": With respect to any Distribution Date, the last Business Day
of the calendar month immediately preceding the month in which such Distribution
Date occurs.
"Registered Certificates": The Class A-1, Class A-2, Class B, Class C,
Class D and Class E Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time.
"Related Borrower Group": Any of the groups of Mortgage Loans having the
same or related Mortgagors as identified in Annex A to the Prospectus Supplement
under the column heading "Related Group."
"Release Date": As defined in Section 3.08(d).
"Remaining Certificateholder": Any Holder (or Holders if they act in
unanimity) holding 100% of the Class J, Class K, Class L, Class M, Class N,
Class O, Class P and Class X Certificates or an assignment of the voting rights
thereof; provided, however, that the Certificate Balances of the Class A, Class
B, Class C, Class D, Class E, Class F, Class G and Class H Certificates have
been reduced to zero.
"REMIC": A "real estate mortgage investment conduit" as defined in Section
860D of the Code.
"REMIC I": The segregated pool of assets subject hereto, constituting the
primary trust created hereby and to be administered hereunder, with respect to
which a REMIC election is to be made, consisting of: (i) the Mortgage Loans as
from time to time are subject to this Agreement and all payments under and
proceeds of such Mortgage Loans received or receivable after the Cut-off Date
(other than (a) Excess Interest, (b) any Special Reserve Account, (c) payments
of principal, interest and other amounts due and payable on the Mortgage Loans
on or before the Cut-off Date, (d) to the extent properly attributable to the
Serviced Companion Loans, all or any portion of the Serviced Whole Loan
Custodial Accounts or the Serviced Whole Loan REO Accounts, and (e) the Serviced
Companion Loan Distribution Accounts), 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;
69
(iii) the Certificateholders' interest in such funds or assets (other than
Excess Interest) as from time to time are deposited in the Distribution Account,
the Certificate Account and the REO Account (if established); and (iv) the
rights of the Depositor under Sections 2, 4(a) and 6 of each Mortgage Loan
Purchase Agreement and the rights of the Depositor under Sections 2 and 4 of 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
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 thirty-seven (37) separate
non-certificated beneficial ownership interests in REMIC II issued hereunder
designated as a "regular interest" in REMIC II and identified individually as
REMIC II Regular Interests XX-0-0, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-1-2-L,
LA-2, LB, LC, LD, LE, LF-A, LF-B, LF-C, LF-D, LG-A, XX-X, XX-X, XX-X, XX-X,
XX-X, XX-X, XX-X, LK-A, LK-B, 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.
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Each REMIC II Regular Interest corresponds to a Class of Principal Balance
Certificates and a Class X Component as follows:
REMIC II Class of Principal Class X
Regular Interest Balance Certificates Component
------------------ -------------------- -----------------------------
Class LA-1-1 Class A-1 Class LA-1-1 Component(1)
Class LA-1-2-A Class A-1 Class LA-1-2-A Component(1)(2)
Class LA-1-2-B Class A-1 Class LA-1-2-B Component(1)(2)
Class LA-1-2-C Class A-1 Class LA-1-2-C Component(1)(2)
Class LA-1-2-D Class A-1 Class LA-1-2-D Component(1)(2)
Class LA-1-2-E Class A-1 Class LA-1-2-E Component(1)(2)
Class LA-1-2-F Class A-1 Class LA-1-2-F Component(1)(2)
Class LA-1-2-G Class A-1 Class LA-1-2-G Component(1)(2)
Class LA-1-2-H Class A-1 Class LA-1-2-H Component(1)(2)
Class LA-1-2-I Class A-1 Class LA-1-2-I Component(1)(2)
Class LA-1-2-J Class A-1 Class LA-1-2-J Component(1)(2)
Class LA-1-2-K Class A-1 Class LA-1-2-K Component(1)(2)
Class LA-1-2-L Class A-1 Class LA-1-2-L Component(1)(2)
Class LA-2 Class A-2 Class LA-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-A Class F Class LF-A Component(1)(2)
Class LF-B Class F Class LF-B Component(1)(2)
Class LF-C Class F Class LF-C Component(1)(2)
Class LF-D Class F Class LF-D Component(1)(2)
Class LG-A Class G Class LG-A Component(1)(2)
Class LG-B Class G Class LG-B Component(1)(2)
Class LG-C Class G Class LG-C Component(1)(2)
-----------------------
(1) Applicable to the Class X-1 Certificates
(2) Applicable to the Class X-2 Certificates
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REMIC II Class of Principal Class X
Regular Interest Balance Certificates Component
------------------ -------------------- -----------------------------
Class LH-A Class H Class LH-A Component(1)(2)
Class LH-B Class H Class LH-B Component(1)(2)
Class LJ-A Class J Class LJ-A Component(1)(2)
Class LJ-B Class J Class LJ-B Component(1)(2)
Class LJ-C Class J Class LJ-C Component(1)(2)
Class LK-A Class K Class LK-A Component(1)(2)
Class LK-B Class K Class LK-B Component(1)(2)
Class LL Class L Class LL Component(1)(2)
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)
"REMIC II Remittance Rate": With respect to each REMIC II Regular Interest,
for any Distribution Date, the weighted average of the respective REMIC I
Remittance Rates for all REMIC I Regular Interests for such Distribution Date
(weighted on the basis of the respective Uncertificated Principal Balances of
the related REMIC I Regular Interests immediately prior to such Distribution
Date).
"REMIC III": The segregated pool of assets consisting of all of the REMIC
II Regular Interests, with respect to which a separate REMIC election is to be
made.
"REMIC III Certificate": Any Certificate, other than a Class R-I or Class
R-II Certificate.
"REMIC III Regular Certificate": Any REMIC III Certificate, other than a
Class R-III Certificate.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final Treasury regulations (and, to the extent not inconsistent
with such temporary and final regulations, proposed regulations) and any
published rulings, notices and announcements, promulgated thereunder, as the
foregoing may be in effect from time to time.
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"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, which shall be entitled "GMAC Commercial
Mortgage Corporation, as Special Servicer, in trust for registered holders of
GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 2003-C2."
"REO Acquisition": The acquisition of any REO Property pursuant to Section
3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.19.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be outstanding
with respect to each REO Property. Each REO Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to the applicable Assumed
Monthly Payment and otherwise to have the same terms and conditions as its
predecessor Mortgage Loan or Serviced 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
73
default on such predecessor Mortgage Loan or Serviced 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 Serviced
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 Serviced
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 Serviced 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, in the case of the Mortgaged Property securing a Serviced Whole Loan, for
the benefit of the Certificateholders and the related Serviced Companion Loan
Holders) through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of a Mortgage Loan (other than the Xxxx Xxxxxxx Tower Mortgage
Loan and the Boulevard Mall Mortgage Loan).
"REO Revenues": All income, rents and profits derived from the ownership,
operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Replacement Mortgage Loan": Any Qualifying Substitute Mortgage Loan that
is substituted for one or more Deleted Mortgage Loans.
"Request for Release": A release signed by a Servicing Officer, in the form
of Exhibit D attached hereto.
"Required Appraisal Loan": As defined in Section 3.20(d).
"Reserve Account": The account or accounts created and maintained pursuant
to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan or Serviced Companion
Loan serviced hereunder, any cash amounts or instruments convertible into cash
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for items such as repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property.
"Residual Certificate": Any Class R-I, Class R-II or Class R-III
Certificate.
"Resolution Extension Period": With respect to any Mortgage Loan and any
Material Document Defect or Material Breach which would require the related
Mortgage Loan Seller to
74
cure, repurchase or substitute for such Mortgage Loan pursuant to the terms of
the related Mortgage Loan Purchase Agreement or the Supplemental Agreement, as
applicable:
(i) with respect to a Material Breach or a Material Document Defect
relating to any Mortgage Loan, the ninety (90) day period following the end of
the applicable Initial Resolution Period;
(ii) with respect to a Material Document Defect relating to any Mortgage
Loan that is not a Specially Serviced Mortgage Loan at any time during the
applicable Initial Resolution Period, the period commencing at the end of the
applicable Initial Resolution Period and ending on, and including, the earlier
of: (i) the 90th day following the end of such Initial Resolution Period and
(ii) the 45th day following the applicable Mortgage Loan Seller's receipt of
written notice from the Master Servicer or the Special Servicer of the
occurrence of any Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) with respect to a Material Document Defect relating to any Mortgage
Loan that is not a Specially Serviced Mortgage Loan as of the commencement of
the applicable Initial Resolution Period but is subject to a Servicing Transfer
Event during such Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the 90th
day following the applicable Mortgage Loan Seller's receipt of written notice
from the Master Servicer or the Special Servicer of the occurrence of such
Servicing Transfer Event; and
(iv) with respect to a Material Document Defect relating to any Mortgage
Loan that is a Specially Serviced Mortgage Loan as of the commencement of the
applicable Initial Resolution Period, thirty (30) days, provided that, if the
applicable Mortgage Loan Seller did not receive written notice from the Master
Servicer or the Special Servicer of the relevant Servicing Transfer Event as of
the commencement of the applicable Initial Resolution Period, then such
Servicing Transfer Event will be deemed to have occurred during such Initial
Resolution Period and clause (iii) of this definition will be deemed to apply.
"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 (i) any ARD Loan, the increased interest
rate after the Anticipated Repayment Date (in the absence of a default) for such
ARD Loan, as calculated and as set forth in the related Mortgage Note or
Mortgage and (ii) the Leasing Conditions Loan, the increased interest rate after
the date a Leasing Conditions Failure has occurred, as calculated and set forth
in the related Mortgage Note or Mortgage.
"Securities Act": The Securities Act of 1933, as amended.
75
"Security Agreement": With respect to any Mortgage Loan or Serviced Whole
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 Serviced Whole Loan.
"Senior Certificate": Any Class X, Class A-1 or Class A-2 Certificate.
"Serviced Companion Loan": Any of the DDR Portfolio Companion Loans or the
Geneva Commons Companion Loan.
"Serviced Companion Loan Distribution Account": With respect to any
Serviced Companion Loan, the account(s) or subaccount(s) created and maintained
by the Serviced Companion Loan Paying Agent pursuant to Section 3.05(f) in trust
for the related Serviced Companion Loan Holder. Any such account or subaccount
shall be an Eligible Account.
"Serviced Companion Loan Holder": Any of the Geneva Commons Companion Loan
Holder and the DDR Portfolio Companion Loan Holders.
"Serviced Companion Loan Holder Register": As defined in Section 8.18.
"Serviced Companion Loan Paying Agent": Xxxxx Fargo Bank Minnesota,
National Association, in its capacity as the Serviced Companion Loan Paying
Agent under this Agreement, its successor in interest, or any successor Serviced
Companion Loan Paying Agent appointed as herein provided.
"Serviced Companion Loan Master Servicer": With respect to any Serviced
Companion Loan, the master servicer with respect to such Serviced Companion Loan
appointed and acting under the related Serviced Companion Loan Securitization
Agreement, if any.
"Serviced Companion Loan Securities": For so long as the Mortgage Loan
related thereto or any successor REO Loan thereof is part of the Mortgage Pool,
any class of securities backed by a Serviced Companion Loan. Any reference
herein to a "series" of Serviced Companion Loan Securities shall refer to
separate securitizations of one or more of the Serviced Companion Loans.
"Serviced Companion Loan Securitization Agreement": With respect to any
Serviced Companion Loan, any agreement under which any certificates evidencing
interests in such Serviced Companion Loan are issued, as from time to time
amended, supplemented or modified.
"Serviced Companion Loan Trustee": With respect to any Serviced Companion
Loan, the trustee with respect to such Serviced Companion Loan appointed and
acting under the related Serviced Companion Loan Securitization Agreement, if
any.
"Serviced Whole Loan": The DDR Portfolio Whole Loan or the Geneva Commons
Whole Loan, as the context may require.
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"Serviced Whole Loan Custodial Account": With respect to each Serviced
Whole Loan, the account or accounts maintained by the Master Servicer pursuant
to Section 3.04(f) on behalf of the Certificateholders and the related Serviced
Companion Loan Holders. Any such account or accounts shall be an Eligible
Account.
"Serviced Whole Loan Intercreditor Agreement": The DDR Portfolio
Intercreditor Agreement or the Geneva Commons Intercreditor Agreement, as the
context may require.
"Serviced Whole Loan Remittance Amount": With respect to any Business Day
preceding a Distribution Date and any Serviced Whole Loan, an amount equal to:
(a) the aggregate amount of all payments and other collections on or with
respect to the Serviced Whole Loan and the related Mortgaged Property (if it
becomes an REO Property) that (A) were received as of the close of business on
the immediately preceding Determination Date and (B) are on deposit or are
required to be on deposit in the related Serviced Whole Loan Custodial Account
as of 3:00 p.m. (New York City time) on such date, including any such payments
and other collections transferred to such Serviced Whole Loan Custodial Account
from the related REO Account (if established); net of (b) the portion of the
aggregate amount described in clause (a) of this definition that represents
Monthly Payments that are due on a Due Date following the end of the related
Collection Period and/or any amount payable or reimbursable to any Person from
the applicable Serviced Whole Loan Custodial Account pursuant to Section
3.05(e).
"Serviced Whole Loan REO Account": As defined in Section 3.16(b).
"Servicer Reports": The CMSA Delinquent Loan Status Report, the CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, the CMSA
Historical Liquidation Report, the CMSA Loan Level Reserve/Letter of Credit
Report, the CMSA REO Status Report, the CMSA Servicer Watch List, the CMSA
Special Servicer Loan File, the CMSA NOI Adjustment Worksheet, the CMSA
Comparative Financial Status Report, the CMSA Operating Statement Analysis
Report and the Advance Interest Reconciliation Report.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including attorneys' fees and expenses and fees of
real estate brokers) incurred by the Master Servicer or the Trustee, as
applicable, in connection with the servicing and administering of (a) a Mortgage
Loan (excluding the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall
Mortgage Loan) or a Serviced 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 (excluding the Mortgaged
Property relating to the Xxxx Xxxxxxx Tower Mortgage Loan and the Mortgaged
Property relating to the Boulevard Mall Mortgage Loan), (iii) obtaining any
Insurance Proceeds or any Liquidation Proceeds in respect of any Mortgage Loan
(excluding the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage
Loan), any Serviced Companion Loan or any REO Property, (iv) any enforcement or
judicial proceedings with respect to a Mortgaged
77
Property, including foreclosures, and (v) the operation, management, maintenance
and liquidation of any REO Property (excluding any REO Property related to the
Xxxx Xxxxxxx Tower Mortgage Loan or the Boulevard Mall Mortgage Loan). All
Emergency Advances made by the Master Servicer hereunder shall be considered
"Servicing Advances" for the purposes hereof.
"Servicing Fee Rate": With respect to any Mortgage Loan or Serviced
Companion Loan (including any REO Loan), the percentage rate per annum set forth
with respect to such Mortgage Loan or Serviced Companion Loan (including any REO
Loan) on the Mortgage Loan Schedule.
"Servicing Fees": With respect to any Distribution Date and each Mortgage
Loan, each Serviced Companion Loan and each REO Loan serviced hereunder, the fee
payable to the Master Servicer pursuant to Section 3.11(a).
"Servicing File": Any documents (including copies of any documents required
to be part of the related Mortgage File), including but not limited to
appraisals, environmental reports, engineering reports, property insurance
information (including the Accord 27 certificate), property inspection reports,
financial statements, escrow analyses, tax bills, financial information on the
borrower, sponsor and guarantor, copies of the letters of credit and copies of
environmental insurance policies and legal opinions delivered to the Master
Servicer or the Special Servicer and relating to the servicing of any Mortgage
Loan; provided, that no information that is proprietary to the related Mortgage
Loan Seller shall be considered part of the Servicing File.
"Servicing Officer": Any officer of the Master Servicer or the Special
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans and the Serviced Companion Loans serviced hereunder, whose
name and specimen signature appear on a list of servicing officers furnished by
the Master Servicer or the Special Servicer to the Trustee and the Depositor on
the Closing Date as such list may be amended from time to time thereafter.
"Servicing Standard": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan (other than
the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) or
any Serviced Whole Loan, the occurrence of any of the events described in
clauses (1) through (8) of the definition of "Specially Serviced Mortgage Loan."
"Special Reserve Account": A segregated custodial account or accounts
created and maintained pursuant to Section 2.02(f) by the Trustee or the Master
Servicer on behalf of the Trustee in trust for the Certificateholders, which
shall be entitled "GMAC Commercial Mortgage Corporation, as Master Servicer, in
trust for the registered holders of GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2003-C2." Any such account shall be
an Eligible Account and shall be an "outside reserve fund" for purposes of the
REMIC Provisions, which is not held by REMIC I.
"Special Servicer": GMACCM, or any successor special servicer appointed as
herein provided.
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"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan (including any Serviced Companion Loan) and each 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 Serviced Companion Loan) and REO Loan, 0.250% per
annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan (including each
related Cross-Collateralized Mortgage Loan, but excluding the Xxxx Xxxxxxx Tower
Mortgage Loan and the Boulevard Mall Mortgage Loan) or Serviced Whole Loan, as
to which any of the following events has occurred:
(1) with respect to a Balloon Mortgage Loan, a payment default shall
have occurred with respect to the related Balloon Payment; provided, if the
Mortgagor continues to make its Assumed Monthly Payment and diligently
pursues a refinancing, a Servicing Transfer Event shall not occur with
respect to such Mortgage Loan or Serviced Whole Loan until 90 days
following such default (or, if the Mortgagor has produced a written
refinancing commitment that is reasonably acceptable to the Special
Servicer and the Majority Certificateholder of the Controlling Class, 150
days following such default); provided, further, pursuant to Section
3.21(a)(i), the Master Servicer, with the consent of the Majority
Certificateholder of the Controlling Class, and pursuant to Section
3.21(a)(ix), the Special Servicer, in the circumstances set forth therein,
shall have the authority to extend the due date of the related Balloon
Payment and in such case, a Servicing Transfer Event shall not occur with
respect to such Mortgage Loan; or
(2) the related Mortgagor has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment required under
the related Mortgage Note or the related Mortgage, which failure continues
unremedied for 60 days; or
(3) either the Master Servicer and/or the Majority Certificateholder
of the Controlling Class has determined in its good faith and reasonable
judgment, that a default in the making of a Monthly Payment or any other
payment required under the related Mortgage Note or the related Mortgage is
likely to occur within 30 days and is likely to remain unremedied for at
least 60 days or, except as provided in clause (1) above, in the case of a
Balloon Payment, for at least 30 days; or
(4) there shall have occurred a default, other than as described in
clause (1) or (2) above, that materially impairs the value of the related
Mortgaged Property as security for the Mortgage Loan or Serviced Whole 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
Serviced Whole 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
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receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the related
Mortgagor and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(6) the related Mortgagor shall have consented to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all of
its property; or
(7) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a
petition to take advantage of any applicable insolvency or
reorganization statute, made an assignment for the benefit of its
creditors, or voluntarily suspended payment of its obligations; or
(8) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property.
A Mortgage Loan or Serviced Whole Loan will cease to be a Specially
Serviced Mortgage Loan when a Liquidation Event has occurred in respect of such
Mortgage Loan or Serviced Whole 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 Serviced Whole Loan to be characterized
as a Specially Serviced Mortgage Loan (provided that no other Servicing Transfer
Event then exists with respect to the particular Mortgage Loan or Serviced Whole
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 Serviced Whole Loan (as such terms
may be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.21);
(x) with respect to the circumstances described in clauses (3),
(5), (6) and (7) above, such circumstances cease to exist in the good
faith and reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (4)
above, such default is cured; and
(z) with respect to the circumstances described in clause (8)
above, such proceedings are terminated.
"Specified Earnout Reserve Loan": The Mortgage Loans identified on Schedule
V hereto.
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"Standard & Poor's": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "Standard & Poor's" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor. Notice of such designation
shall be given to the Trustee, the Master Servicer and the Special Servicer and
specific ratings of Standard & Poor's herein referenced shall be deemed to refer
to the equivalent ratings of the party so designated.
"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 Serviced
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
Serviced Companion Loan granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.21 or, in the case of any ARD Loan, the
Anticipated Repayment Date for such Mortgage Loan or Serviced Companion Loan, as
the case may be.
"Stated Principal Balance": With respect to any Mortgage Loan or Serviced
Companion Loan (and any related REO Loan), the Cut-off Date Principal Balance of
such Mortgage Loan or Serviced 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 Serviced
Companion Loan (or related REO Loan) that are (or, if they had not been applied
to cover any Additional Trust Fund Expense, would have been) distributed to
Certificateholders on such Distribution Date, and (ii) the principal portion of
any Realized Loss incurred in respect of such Mortgage Loan or Serviced
Companion Loan (or related REO Loan) during the related Collection Period.
Notwithstanding the foregoing, if a Liquidation Event occurs in respect of any
Mortgage Loan or Serviced Companion Loan or any REO Property, then the "Stated
Principal Balance" of such Mortgage Loan or Serviced 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.
"Sub-Servicer": Any Person with which the Master Servicer has entered into
a Sub-Servicing Agreement.
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"Sub-Servicing Agreement": The written contract between the Master Servicer
and any Sub-Servicer relating to servicing and administration of Mortgage Loans
as provided in Section 3.23.
"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 August
14, 2003, between GMACCM and GSMC, as such agreement may be amended, restated or
otherwise supplemented from time to time.
"Tax Returns": The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each of REMIC I, REMIC II and REMIC III due to its classification
as a REMIC under the REMIC Provisions, and the federal income tax return to be
filed on behalf of the Grantor Trust due to its classification as a grantor
trust under the Grantor Trust Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, or
Applicable State Law.
"Tenant": With respect to any Credit Lease Loan, the lessee thereunder.
"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust Fund": Collectively, the Excess Interest and all of the assets of
REMIC I, REMIC II and REMIC III.
"Trustee": 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.
"Trustee Fee": With respect to any Distribution Date and each Mortgage Loan
and REO Loan, an amount equal to the product of (a) the Trustee Fee Rate and (b)
the aggregate Stated Principal Balance of such Mortgage Loan or REO Loan
immediately following the prior
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Distribution Date and (c) a fraction, the numerator of which is the actual
number of days elapsed in the related Interest Accrual Period and the
denominator of which is 360.
"Trustee Fee Rate": 0.0018%. 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 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
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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 Xxxxxx Xxxxxxx & Co. Incorporated, Deutsche Bank
Securities 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.
"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
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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.
"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.
(a) All amounts collected in respect of any group of related
Cross-Collateralized Mortgage Loans in the form of payments from Mortgagors,
Insurance Proceeds and Liquidation Proceeds, shall be applied by the Master
Servicer among such Mortgage Loans and any related Serviced Companion Loans in
accordance with the express provisions of the related loan documents and
Serviced Whole Loan Intercreditor 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 and Serviced Companion Loan. All
amounts collected in respect of any Mortgage Loan or Serviced Companion Loan
(whether or not such Mortgage Loan or Serviced Companion Loan is a
Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors,
Liquidation Proceeds or Insurance Proceeds shall be applied to amounts due and
owing under the related Mortgage Note and Mortgage (including, without
limitation, for principal and accrued and unpaid interest) in accordance with
the express provisions of the related Mortgage Note and Mortgage and, in the
absence of such express provisions, shall be applied for purposes of this
Agreement: first, as a recovery of any related unreimbursed Servicing Advances
and, if applicable, unpaid Liquidation Expenses, Additional Trust Fund Expenses
or other fees and expenses payable to the Master Servicer, the Special Servicer
or the Trustee and attributable to such Mortgage Loan; second, as a recovery of
accrued and unpaid interest at the related Mortgage Rate on such Mortgage Loan
and, if applicable, the Serviced 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 and , if applicable, the Serviced Companion Loan then due and
owing, including, without limitation, by reason of acceleration of the Mortgage
Loan or Serviced Companion Loan following a default thereunder (or, if a
Liquidation Event has occurred in respect of such Mortgage Loan or Serviced
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 and, if applicable, the Serviced Companion Loan;
seventh, as a recovery of any Penalty Charges then due and owing under such
Mortgage Loan and, if applicable, the Serviced Companion Loan; eighth, as a
recovery of any other amounts (other than Excess Interest) then due and owing
under such
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Mortgage Loan and, if applicable, the Serviced Companion Loan; ninth, as a
recovery of any remaining principal of such Mortgage Loan or Serviced Companion
Loan to the extent of its entire remaining unpaid principal balance; and tenth,
if such Mortgage Loan is an ARD Loan or the Leasing Conditions Loan, as a
recovery of any Excess Interest then due and owing on such Mortgage Loan or
Serviced Companion Loan.
(b) Collections in respect of each REO Property (exclusive of amounts
to be applied to the payment of the costs of operating, managing, maintaining
and disposing of such REO Property) shall be treated: first, as a recovery of
any related unreimbursed Servicing Advances and unpaid or unreimbursed
Additional Trust Fund Expenses or other fees and expenses payable to the Master
Servicer, the Special Servicer or the Trustee and attributable to such REO
Property or the related REO Loan; second, as a recovery of accrued and unpaid
interest on the related REO Loan at the related Mortgage Rate to but not
including the Due Date in the month of receipt; third, as a recovery of
principal of the related REO Loan to the extent of its entire unpaid principal
balance; and fourth, as a recovery of any other amounts deemed to be due and
owing in respect of the related REO Loan.
(c) The applications of amounts received in respect of any Mortgage
Loan or any REO Property pursuant to subsections (a) and (b) of this Section
1.02 shall be determined by the Master Servicer in its good faith judgment.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
Section 2.01 Establishment of Trust; Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a trust, appoint the Trustee to serve as trustee
of such trust and assign to the Trustee without recourse for the benefit of the
Certificateholders all the right, title and interest of the Depositor, including
any security interest therein for the benefit of the Depositor, in, to and under
(i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections
2, 4(a), 6 and 13 of each Mortgage Loan Purchase Agreement and Sections 2, 4 and
6 of 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, interest and other amounts due and payable on the
Mortgage Loans on or before the Cut-off Date). The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be
delivered to and deposited with, the Trustee or the Custodian (with a copy to
the Master Servicer), on or before the Closing Date, the Mortgage File for each
of such Mortgage Loan Seller's Mortgage Loans so assigned. Further, each of the
Mortgage
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Loan Sellers pursuant to the applicable Mortgage Loan Purchase Agreement has
agreed to deliver to and deposit with, or cause to be delivered to and deposited
with, the Trustee or a Custodian appointed thereby, on or before the Closing
Date, the Mortgage Note, a copy of the Mortgage, a copy of any related Ground
Leases, the copies of any related letters of credit (and any transfer or
assignment documents) and the lender's title insurance policy (original or copy
or marked-up title commitment marked as binding and countersigned by the title
company or its authorized agent either on its face or by an acknowledged closing
instruction or escrow letter) for each Mortgage Loan so assigned; provided,
however, that if any Mortgage Loan Seller fails to deliver on or before the
Closing Date, with respect to any Mortgage Loan so assigned, a copy of the
Mortgage, a copy of any related Ground Lease, the copies of any related letters
of credit or the lender's title policy (original or copy or marked-up title
commitment marked as binding and countersigned by the title company or its
authorized agent either on its face or by an acknowledged closing instruction or
escrow letter), the delivery requirements of this Section 2.01(b) shall be
deemed satisfied with respect to such missing document if the Mortgage Loan
Seller delivers such document to the Trustee within 15 Business Days following
the Closing Date. 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 (and including an indemnification provision). If the related
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(2), (4), (11)(A) and (12) of the definition of "Mortgage File", with evidence
of recording or filing, as the case may be, thereon, because of a delay caused
by the public recording or filing office where such document or instrument has
been delivered for recordation or filing, or because such original recorded
document has been lost or returned from the recording or filing office and
subsequently lost, as the case may be, the delivery requirements of the related
Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to
have been satisfied as to such missing document or instrument, and such missing
document or instrument shall be deemed to have been included in the Mortgage
File; provided, that a photocopy of such missing document or instrument (without
evidence of recording or filing thereon, but certified (which certification may
relate to multiple documents or instruments) by the related Mortgage Loan Seller
to be a true and complete copy of the original thereof submitted for recording
or filing, as the case may be) is delivered to the Trustee or a Custodian
appointed thereby on or before the Closing Date and either the original of such
missing document or instrument, or a copy thereof, with evidence of recording or
filing, as the case may be, thereon, is delivered to or at the direction of the
Trustee within 180 days of the Closing Date (or within such longer period after
the Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the related Mortgage Loan Seller has provided
the Trustee with evidence of such recording or filing, as the case may be, or
has certified to the Trustee as to the occurrence of such recording or filing,
as the case may be, and is, as certified to the Trustee no less often than
quarterly, in good faith attempting to obtain from the appropriate county
recorder's or filing office such original or copy). Upon request, the Trustee
shall provide a copy of any such certification, promptly after receipt thereof,
to any Certificate Owner holding a Certificate in the Controlling Class that has
provided a certification to the Trustee in the form attached hereto as Exhibit
H-1. 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
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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 pro forma policy or commitment for title insurance "marked-up"
at the closing of such Mortgage Loan, marked as binding by the insurer or its
agent, and the related Mortgage Loan Seller shall deliver to the Trustee or such
Custodian, promptly following the receipt thereof, the original related lender's
title insurance policy (or a copy thereof). In addition, notwithstanding
anything to the contrary contained herein, if there exists with respect to any
group of related Cross-Collateralized Mortgage Loans only one original of any
document referred to in the definition of "Mortgage File" covering all the
Mortgage Loans in such group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such group shall
be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan. Neither the Trustee nor any Custodian shall in any way be liable
for any failure by the Mortgage Loan Seller or the Depositor to comply with the
delivery requirements of the Mortgage Loan Purchase Agreement and this Section
2.01(b).
If any of the endorsements referred to in clause (1) of the definition of
"Mortgage File" are delivered to the Trustee in blank, the Trustee shall be
responsible for promptly (and in any event within 45 days of the Closing Date)
completing the related endorsement and if any of the assignments referred to in
clauses (3), (5) and (7) of the definition of "Mortgage File" are delivered to
the Trustee in blank, the related Mortgage Loan Seller shall be responsible for
completing the related assignment, in the name of the Trustee (in such capacity)
and in any event prior to releasing possession thereof. Notwithstanding anything
herein to the contrary, with respect to the documents referred to in clause (18)
of the definition of Mortgage File, the Master Servicer may hold the original of
such document in trust on behalf of the Trustee in order to draw on such letter
of credit and the applicable Mortgage Loan Seller shall be deemed to have
satisfied the delivery requirements of this Section 2.01(b) by delivering the
original of such document to the (x) Master Servicer in the case of Mortgage
Loans sold or originated by GMACCM or its Affiliates or (y) Trustee, in the case
of loans (other than Mortgage Loans originated by GMACCM or its Affiliates) sold
by GSMC, GACC or MSMC, who will certify receipt of such document by the Closing
Date and send a copy of the applicable document to the other party, and the
Trustee shall appoint the Master Servicer as custodian with respect to any such
letters of credit. The applicable Mortgage Loan Seller shall pay any costs of
assignment of such letter of credit required in order for the Master Servicer to
draw on such letter of credit. In the event that the related transfer documents
specified in clause (18) of the definition of Mortgage File are missing because
the related assignment documents have not been completed, the applicable
Mortgage Loan Seller shall take all necessary steps to enable the Master
Servicer to draw on the related letter of credit including, if necessary,
drawing on the letter of credit in its own name pursuant to written instructions
from the Master Servicer and immediately remitting such funds (or causing such
funds to be remitted) to the Master Servicer.
Notwithstanding the above, the related Mortgage Loan Seller shall handle
the processing of the assignment and transfer of the original letters of credit.
The related Mortgage Loan Seller shall have up to forty-five (45) days following
the Closing Date to complete such transfer; and provided, further, in the event
the Master Servicer determines to make a draw under any letter of credit prior
to the time it has been assigned and/or transferred to the Trustee on behalf of
the
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Trust Fund or the Master Servicer, as applicable, then the related Mortgage
Loan Seller agrees to cooperate with the Master Servicer in making any
presentation and draw concerning such letter of credit, on behalf of the Trust
Fund (and if necessary the related Mortgage Loan Seller shall make such draw in
its own name pursuant to the written instructions of the Master Servicer and
deliver the proceeds to the Master Servicer on behalf of the Trust Fund). In the
event a draw is not honored or able to be processed as a result of the transfer
process being incomplete, the related Mortgage Loan Seller shall be liable to
the Trust Fund for all expenses, damages or losses, including, but not limited
to reimbursement of interest charged by the Master Servicer for any Advance made
in lieu of such draw, up to an amount not to exceed the amount of such draw plus
Advance Interest and related expenses resulting from the failure of the draw to
occur.
Notwithstanding anything to the contrary contained herein, the parties
hereto acknowledge and agree that (i) the original letter of credit pertaining
to the Mortgage Loan identified as loan number 39856 on the Mortgage Loan
Schedule (the "National Boulevard Mortgage Loan"), is held by GMACCM with
restrictions on transferability, (ii) for so long as the GMACCM is the Master
Servicer under this Agreement, GMACCM will draw upon the letter of credit
relating to the National Boulevard Mortgage Loan in accordance with the related
Mortgage Loan documents and (iii) in the event that GMACCM is no longer acting
as Master Servicer, GMACCM shall enter into an agreement with the replacement
Master Servicer pursuant to which GMACCM agrees to draw upon such letter of
credit when instructed by such replacement Master Servicer and assigns all
proceeds of the letter of credit to the Trust Fund.
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller shall, as to each Mortgage Loan, at its own expense,
promptly (and in any event within 60 days of the Closing Date) cause to be
submitted for recording or filing, as the case may be, in the appropriate public
office for real property records or UCC Financing Statements, as appropriate,
each assignment referred to in clauses (3) and (5) of the definition of
"Mortgage File" and each UCC-2 and UCC-3 referred to in clause (11)(B) of the
definition of "Mortgage File." Each such assignment shall reflect that it should
be returned by the public recording office or the Mortgage Loan Seller to the
Trustee or its designee following recording, and each such UCC-2 and UCC-3 shall
reflect that the file copy thereof should be returned to the Trustee or its
designee following filing. Promptly following receipt, the Trustee shall, at the
request of the Master Servicer, deliver a copy of any such document or
instrument to the Master Servicer. If any such document or instrument is lost or
returned to the Trustee unrecorded or unfiled, as the case may be, because of a
defect therein, the Trustee shall direct the Mortgage Loan Seller, pursuant to
the related Mortgage Loan Purchase Agreement promptly to prepare or cause to be
prepared a substitute therefor or cure such defect, as the case may be.
(d) All documents and records in the Depositor's or any Mortgage Loan
Seller's possession relating to the Mortgage Loans that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Master Servicer on or before the Closing Date and shall be held
by the Master Servicer (or a Sub-Servicer retained thereby) on behalf of the
Trustee in trust for the benefit of the Certificateholders and, with respect to
the Serviced Companion Loans, the related Serviced Companion Loan Holders. If
the Sub-Servicer shall hold any original documents and records delivered to it
pursuant to this subsection (d) then the Sub-Servicer shall deliver copies
thereof to the Master Servicer.
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(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.
(f) The Trustee, by the execution and delivery of this Agreement,
hereby agrees to be bound to the terms of the DDR Portfolio Intercreditor
Agreement, the Geneva Commons Intercreditor Agreement, the Xxxx Xxxxxxx Tower
Co-Lender Agreement, the Boulevard Mall Intercreditor Agreement and the
Boulevard Mall Agreement Among Noteholders.
Section 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
hereby certifies receipt by it or a Custodian on its behalf, subject to the
provisions of Section 2.01 and the further review provided for in this Section
2.02, and further subject to any exceptions noted on any exception report
prepared by the Trustee or such Custodian and attached hereto as Exhibit L-1, of
the documents specified in clauses (1), (2), (9), (13) and (18) (other than the
related transfer documents) of the definition of "Mortgage File" with respect to
each Mortgage Loan, of a fully executed original counterpart of each Mortgage
Loan Purchase Agreement and the Supplemental Agreement, if applicable, and of
all other assets included in REMIC I and delivered to it, in good faith and
without notice of any adverse claim, and declares that it or a Custodian on its
behalf holds and will hold such documents and the other documents delivered or
caused to be delivered by the Mortgage Loan Sellers constituting the Mortgage
Files, and that it holds and will hold such other assets included in REMIC I, in
trust for the exclusive use and benefit of all present and future
Certificateholders; provided that the Trustee's certification with respect to
the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan shall
only include documents specified in clause (1) of the definition of Mortgage
File. In connection with the foregoing, the Trustee hereby certifies, subject to
any exceptions noted on any exception report prepared by the Trustee or the
Custodian and attached hereto as Exhibit L-1, as to each Mortgage Note, that it
(A) appears regular on its face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Mortgagor), (B) appears
to have been executed (where appropriate) and (C) purports to relate to such
Mortgage Loan. To the extent that documents in the Mortgage File for the
Serviced Whole Loans relate to any Serviced Companion Loan(s), as applicable,
the Trustee shall also hold such documents in such Mortgage File in trust for
the use and benefit of the related Serviced Companion Loan Holders.
Further, the Trustee hereby certifies to each of the Depositor, the
Master Servicer, the Special Servicer and each Mortgage Loan Seller that except
as identified in the exception report, which is attached hereto as Exhibit L-1,
without regard to the proviso in the definition of "Mortgage File", each of the
original executed Mortgage Notes and endorsements as described in clause (1) of
the definition of Mortgage File and the documents or instruments referred to in
clauses (2), (9), (13) and (18) (solely with respect to letters of credit and
not the related transfer documents) of the definition of Mortgage File are in
its possession; provided that with respect to clause (13) of the definition of
Mortgage File, the Trustee certification shall relate only to copies of Ground
Leases if any, and, with respect to clause (18) of the definition of Mortgage
File, the
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Trustee's certification shall relate only to copies of any letter of credit and
transfer documents, if any. With respect to the schedule of exceptions described
in the preceding sentence, within fifteen (15) Business Days of the Closing
Date, with respect to the documents specified in clauses (2), (9), (13) and (18)
(solely with respect to letters of credit and not the related transfer
documents) of the definition of Mortgage File, the related Mortgage Loan Seller
shall cure any exception listed therein (for the avoidance of doubt, any
deficiencies with respect to the documents specified in clause (2) resulting
solely from a delay in the return of the related documents from the applicable
recording office or loss of such documents, shall be cured in the time and
manner described in Section 2.01(b)). If such exception is not so cured, the
related Mortgage Loan Seller shall either (x) repurchase the related Mortgage
Loan, (y) with respect to exceptions relating to clause (18) of the definition
of "Mortgage File", deposit with the Master Servicer an amount, to be held in a
Special Reserve Account, equal to the amount of the undelivered letter of credit
(in the alternative, the related Mortgage Loan Seller may deliver to the Master
Servicer, with a copy to the Trustee, a letter of credit for the benefit of the
Master Servicer on behalf of the Trustee and upon the same terms and conditions
as the undelivered letter of credit) which the Master Servicer on behalf of the
Trustee may use (or draw upon, as the case may be) under the same circumstances
and conditions as the Master Servicer would have been entitled to draw on the
undelivered letter of credit, or (z) with respect to any exceptions relating to
clauses (2) and (9), deposit with the Trustee an amount, to be held in trust in
a Special Reserve Account, equal to 25% of the Stated Principal Balance of the
related Mortgage Loan. Any funds or letter of credit deposited pursuant to
clauses (y) and (z) shall be held pursuant to the related Mortgage Loan Purchase
Agreement by the Trustee or the Master Servicer, as applicable, until the
earlier of (i) the date on which the Master Servicer certifies to the Trustee
and the Majority Certificateholder of the Controlling Class that such exception
has been cured (or the Trustee certifies the same to the Majority
Certificateholder of the Controlling Class), at which time such funds or letter
of credit, as applicable, shall be returned to the related Mortgage Loan Seller
and (ii) thirty (30) Business Days after the Closing Date; provided, however,
that if such exception is not cured within such thirty (30) Business Days, (A)
in the case of clause (y), the Master Servicer shall retain the funds or the
letter of credit on deposit in the related Special Reserve Account until such
exception is cured or the Mortgage Loan is repurchased, or (B) in the case of
clause (z), the related Mortgage Loan Seller shall repurchase the related
Mortgage Loan in accordance with the terms and conditions of Section 2.03 or the
related Mortgage Loan Purchase Agreement, at which time such funds shall be
applied to the Purchase Price of the related Mortgage Loan. Any funds or letter
of credit deposited pursuant to clauses (y) or (z) shall be treated as an
"outside reserve fund" for purposes of the REMIC Provisions, and the related
Mortgage Loan Seller shall be treated as the beneficial owner thereof (and any
amounts reimbursed by REMIC I or REMIC II) and shall be taxed on any
reinvestment income with respect to such funds.
(b) Within 60 days of the Closing Date, the Trustee or a Custodian on
its behalf shall review each of the Mortgage Loan documents delivered or caused
to be delivered by the Mortgage Loan Sellers constituting the Mortgage Files;
and, promptly following such review, the Trustee shall certify in writing in the
form attached hereto as Exhibit L-2 to each of the Depositor, the Master
Servicer, the Special Servicer, each Certificateholder in the Controlling Class,
each Mortgage Loan Seller and, upon request, any Certificateholder that, as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or any Mortgage Loan specifically identified in any exception
report annexed thereto as not
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being covered by such certification) (in electronic format if requested), (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; provided
that the Trustee's certification with respect to the Xxxx Xxxxxxx Tower Mortgage
Loan and the Boulevard Mall Mortgage Loan shall only include documents specified
in clause (1) of the definition of Mortgage File. If the Trustee's certification
pursuant to the preceding sentence includes an exception report, or if such
certification indicates that any recording or filing required by Section 2.01(c)
has not been completed with respect to a Mortgage Loan, the Trustee or a
Custodian on its behalf shall continuously update such exception report to
reflect receipt of any additional documents or instruments or evidence of
recording or filing of such additional documents or instruments with respect to
such Mortgage Loan, until the earliest of (i) the date on which such exceptions
are eliminated and any such recording or filing has been completed, (ii) the
date on which the affected Mortgage Loan has been removed from the Trust Fund,
and (iii) the date which is two years after the Closing Date, and shall provide
such updated exception report (beginning 150 days after the Closing Date and
continuing every 90 days thereafter until the date such exceptions are cured,
and following the date which is two years after the Closing Date) to each of the
Depositor, the Master Servicer, the Special Servicer, the Majority
Certificateholder of the Controlling Class and, upon request, any
Certificateholder and, with respect to any Serviced Whole Loan, the related
Serviced Companion Loan Holder. At any time after the date which is two years
after the Closing Date, the Depositor, the Master Servicer, the Special
Servicer, any Certificateholder and any Serviced Companion Loan Holder 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 Exhibit L-2 to each of the Depositor, the
Master Servicer, the Special Servicer, the Majority Certificateholder of the
Controlling Class and each Mortgage Loan Seller (and, with respect to with
respect to the Serviced Companion Loans, the related Serviced Companion Loan
Holders) that, as to each Mortgage Loan listed on the Mortgage Loan Schedule
(other than any Mortgage Loan as to which a Liquidation Event has occurred) and
except as specifically identified in any exception report annexed to such
certification, (i) all documents specified in clauses (1) through (5), (9),
(11), (12), (13) 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 clause (3) and, insofar as an unrecorded original thereof had been
delivered or caused to be delivered by the related Mortgage Loan Seller, clause
(5) of the definition of "Mortgage File" or a copy of such recorded original
certified by the applicable public recording office or, if such public recording
office does not provide a certified original, the Mortgage Loan
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Seller to be true and complete and (iii) all Mortgage Loan documents received by
it or any Custodian have been reviewed by it or by such Custodian on its behalf
and (A) appear regular on their face and relate to such Mortgage Loan, (B)
appear to have been executed (where appropriate) and (C) purport to relate to
such Mortgage Loan; provided that the Trustee's certification with respect to
the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan, shall
only include documents specified in clause (1) of the definition of Mortgage
File.
(d) It is acknowledged that neither the Trustee nor any Custodian is
under any duty or obligation (i) to determine whether any of the documents
specified in clauses (6), (7), (8), (10), (14), (15), (16), (17) and (19) of the
definition of "Mortgage File" exist or are required to be delivered by the
Depositor, any Mortgage Loan Seller or any other Person or (ii) to inspect,
review or examine any of the documents, instruments, certificates or other
papers relating to the Mortgage Loans delivered to it to determine that the same
are genuine, enforceable, in recordable form or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
Further, with respect to the documents described in clause (11) of the
definition of "Mortgage File", to the extent the Trustee has actual knowledge or
is notified of any fixture or real property UCC Financing Statements, the
Trustee shall file an assignment to the Trust Fund with respect to such UCC
Financing Statements in the appropriate jurisdiction under the UCC at the
expense of the related Mortgage Loan Seller. The UCC Financing Statements will
be delivered on the new national filing forms, in recordable form and will be
filed in the relevant central office of such state, as referred to herein or on
the face of such documents.
(e) If, in the process of reviewing the Mortgage Files or at any time
thereafter, the Trustee or any Custodian finds (or, if at any time, any other
party hereto finds) any document or documents constituting a part of a Mortgage
File to have not been properly executed or, subject to Section 2.01(b), to have
not been delivered, to contain information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule, or to be defective on its face (each, a "Document Defect" in the
related Mortgage File) the Trustee (or such other party) shall promptly so
notify each of the other parties hereto, the related Mortgage Loan Seller, and
with respect to the Serviced Companion Loans, the related Serviced Companion
Loan Holders. If and when notified of any error in the Mortgage Loan Schedule,
the Depositor shall promptly correct such error and distribute a new, corrected
Mortgage Loan Schedule to each of the other parties hereto, and upon receipt by
the Trustee of such a corrected Mortgage Loan Schedule so identified, such new,
corrected Mortgage Loan Schedule shall be deemed to amend and replace the
existing Mortgage Loan Schedule for all purposes.
(f) The Master Servicer, or the Trustee, as applicable, may establish
one or more Special Reserve Accounts, each of which shall be an Eligible
Account, and the Master Servicer, or the Trustee, as applicable, or its designee
shall deposit any amount permitted to be deposited, pursuant to Sections 2.02(a)
or 2.03(a), in a Special Reserve Account within two Business Days of receipt.
The related Mortgage Loan Seller may direct the Master Servicer, or the Trustee,
as applicable, to invest or cause the investment of the funds deposited in the
Special Reserve Account in one or more Permitted Investments that bear interest
or are sold at a discount and that mature, unless payable on demand, no later
than the Business Day prior to the next Delinquency Advance Date. The Master
Servicer, or the Trustee, as applicable, shall act upon the
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written instructions of the Mortgage Loan Seller with respect to the investment
of the funds in the Special Reserve Account in such Permitted Investments;
provided, that in the absence of appropriate and timely written instructions
from the related Mortgage Loan Seller, the Master Servicer, or the Trustee, as
applicable, shall not invest or direct the investment of funds in such Special
Reserve Account. All income and gain realized from the investment of funds
deposited in such Special Reserve Account shall be for the benefit of the
related Mortgage Loan Seller (which shall be taxable with respect thereto) and
shall be withdrawn by the Master Servicer, or the Trustee, as applicable, or its
designee and remitted to the related Mortgage Loan Seller on each Delinquency
Advance Date (net of any losses incurred), and the related Mortgage Loan Seller
shall remit to the Master Servicer, or the Trustee, as applicable, from the
related Mortgage Loan Seller's own funds for deposit into such Special Reserve
Account the amount of any Net Investment Loss (net of Net Investment Earnings)
in respect of such Permitted Investments immediately upon realization of such
Net Investment Losses and receipt of written notice thereof from the Master
Servicer, or the Trustee, as applicable,.
Section 2.03 Mortgage Loan Sellers' Repurchase or Substitution of Mortgage
Loans for Defects in Mortgage Files and Breaches of Representations and
Warranties.
(a) If the Trustee discovers or receives notice of a Document 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"), and if such Document
Defect or Breach is a Material Document Defect or Material Breach, as the case
may be, the Trustee shall give prompt written notice of such Material Document
Defect, or Material Breach, as the case may be, to the Depositor, the Master
Servicer, the Special Servicer, the Majority Certificateholder of the
Controlling Class, the Rating Agencies and the related Mortgage Loan Seller (and
GMACCM, in the case of such a Material Document Defect or Material Breach under
the Supplemental Agreement). The Special Servicer shall, and the Trustee and
Master Servicer may (provided that, if the applicable Mortgage Loan Seller is an
Affiliate of the Special Servicer, the Trustee shall pursue such action in
consultation with the Majority Certificateholder of the Controlling Class),
request in writing (with a copy to the other parties hereto, the Rating Agencies
and the Majority Certificateholder of the Controlling Class) that the applicable
Mortgage Loan Seller, not later than ninety (90) days from receipt of such
written request, and the applicable Mortgage Loan Seller shall, (i) cure such
Material Document Defect or Material Breach, as the case may be, in all material
respects, (ii) repurchase the affected Mortgage Loan at the Purchase Price,
(iii) within two years of the Closing Date, substitute a Qualified Substitute
Mortgage Loan for such affected Mortgage Loan and pay the Master Servicer for
deposit into the Certificate Account any Substitution Shortfall Amount in
connection therewith, or (iv) at the sole discretion of the Majority
Certificateholder of the Controlling Class (so long as the Majority
Certificateholder of the Controlling Class is not the related Mortgage Loan
Seller or an Affiliate thereof), provide to the Master Servicer a letter of
credit or deposit in a Special Reserve Account an amount equal to 25% of the
Stated Principal Balance of any Mortgage Loan for which certain types of
Material Document Defects relating to delay in the return of documents from
local filing or recording offices remaining uncorrected for 18 months following
the Closing Date as provided in Section 2.02(a); provided, however, that if such
Material Document Defect or Material Breach is capable of being cured but not
cured within such ninety (90) day period (the "Initial Resolution Period"), such
Material Document Defect or Material Breach does not relate to the Mortgage Loan
not being treated as a "qualified
94
mortgage" within the meaning of the REMIC Provisions and the applicable Mortgage
Loan Seller has commenced and is diligently proceeding with the cure of such
Material Document Defect or Material Breach within such ninety (90) day period,
the applicable Mortgage Loan Seller shall have (x) with respect to any such
Material Breach, an additional period equal to the applicable Resolution
Extension Period (and shall give notice to the Trustee that it is using such
additional period) to complete such cure (or, failing to complete such cure, to
repurchase the related Mortgage Loan (or related REO Loan) or substitute a
Qualified Substitute Mortgage Loan) and (y) with respect to any such Material
Document Defect, the applicable Resolution Extension Period to complete such
cure (or, failing to complete such cure, to repurchase the related Mortgage Loan
(or related REO Loan) or substitute a Qualified Substitute Mortgage Loan) or as
described in clause (iv) above, provide a letter of credit or deposit the
requisite amount in the Special Reserve Account; and provided, further, with
respect to such Resolution Extension Period, the applicable Mortgage Loan Seller
shall have delivered an officer's certificate to the Trustee setting forth the
reasons such Material Document Defect or Material Breach is not capable of being
cured within the initial ninety (90) day period and what actions the applicable
Mortgage Loan Seller is pursuing in connection with such cure thereof and
stating that the applicable Mortgage Loan Seller anticipates such Material
Document Defect or Material Breach will be cured within the Resolution Extension
Period. If the affected Mortgage Loan is to be repurchased or substituted, the
Master Servicer shall designate the Certificate Account as the account to which
funds in the amount of the Purchase Price or the Substitution Shortfall Amount,
as applicable, are to be wired. Any such repurchase or substitution of a
Mortgage Loan shall be on a whole loan, servicing released basis.
Notwithstanding the foregoing, if (x) there exists a Breach of any
representation or warranty on the part of a Mortgage Loan Seller as set forth
in, or made pursuant to, Exhibit B, clauses 23, 28, 29 and 32 of the related
Mortgage Loan Purchase Agreement relating to fees and expenses payable by the
Mortgagor associated with the exercise of a defeasance option, a waiver of a
"due on sale" provision or a "due on encumbrance" provision or the release of
any Mortgaged Property, and (y) the related Mortgage Loan documents specifically
prohibit the Master Servicer or Special Servicer from requiring the related
Mortgagor to pay such fees and expenses, then, upon notice by the Master
Servicer or Special Servicer, the related Mortgage Loan Seller shall transfer to
the Certificate Account, within 90 days of such Mortgage Loan Seller's receipt
of such notice, the amount of any such fees and expenses borne by the Trust Fund
that are the basis of such Breach. Upon its making such deposit, the related
Mortgage Loan Seller shall be deemed to have cured such Breach in all respects.
Provided such payment is made, this paragraph describes the sole remedy
available to the Certificateholders and the Trustee on their behalf regarding
any such Breach, regardless of whether it constitutes a Material Breach, and the
related Mortgage Loan Seller shall not be obligated to repurchase or otherwise
cure such Breach.
If a repurchase obligation arises for any Mortgage Loan, such obligation
shall extend to, and the related Mortgage Loan Seller shall repurchase, any
related Cross-Collateralized Mortgage Loan; provided, that with respect to any
Mortgage Loan, the Mortgage Loan Seller shall not be required to repurchase or
substitute for the affected Mortgage Loan for which the repurchase obligation
has arisen all of the related Cross-Collateralized Mortgage Loans, if the Breach
or Document Defect relates solely to one Mortgaged Property and if the affected
Mortgaged Property may be released pursuant to the specific terms of any partial
release
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provisions in the related Mortgage Loan documents and the remaining Mortgaged
Property(ies) satisfies the requirements, if any, set forth in the Mortgage(s)
for the Mortgaged Property(ies) remaining after application of the partial
release provisions or, in the alternative, at the sole discretion of the
Majority Certificateholder of the Controlling Class (so long as the Majority
Certificateholder of the Controlling Class is not the related Mortgage Loan
Seller or an Affiliate thereof), if the credit of the remaining Mortgage Loans
comprising the related pool of Cross-Collateralized Mortgage Loans shall be
reasonably acceptable and the released Mortgage Loan is released from the
application of the cross-collateralization provisions; provided, however, that
in connection with a partial release, the related Mortgage Loan Seller shall
obtain an Opinion of Counsel (at such Mortgage Loan Seller's expense) to the
effect that the contemplated action will not, with respect to REMIC I, REMIC II
or REMIC III, adversely affect REMIC status and, unless such party determines in
its sole discretion to indemnify the Trust Fund on an after-tax basis with
respect to any prohibited transaction; and provided further, that if (i) the
Debt Service Coverage Ratio of the remaining Mortgaged Properties is less than
the Debt Service Coverage Ratio of all such Mortgaged Properties prior to the
release, or (ii) the Loan-to-Value Ratio of the remaining Mortgaged Properties
is greater than the Loan-to-Value Ratio of all such Mortgaged Properties prior
to the release, Rating Agency Confirmation shall be required.
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
Document 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 Document
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 Document Defect, Breach or event under the
Supplemental Agreement) shall be entitled to retain all amounts received in
respect of such Deleted Mortgage Loan.
In any month in which the related Mortgage Loan Seller (or GMACCM under the
Supplemental Agreement) substitutes one or more Qualifying Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine
the applicable Substitution Shortfall Amount. The Trustee shall direct the
related Mortgage Loan Seller (or GMACCM, as applicable) to deposit cash equal to
such amount into the Certificate Account concurrently with the delivery of the
Mortgage File(s) for the Qualifying Substitute Mortgage Loan(s), without any
reimbursement thereof. The Trustee shall also direct the related Mortgage Loan
Seller (or GMACCM, as applicable) to give written notice to the Trustee and the
Master Servicer of such deposit, accompanied by an Officer's Certificate as to
the calculation of the applicable Substitution Shortfall Amount. The Trustee
shall direct the related Mortgage Loan Seller (or GMACCM, as applicable) to
amend the Mortgage Loan Schedule to reflect the removal of each Deleted Mortgage
Loan and, if applicable, the substitution of the Qualifying Substitute Mortgage
Loan(s); and, upon such amendment, the Trustee shall deliver or cause the
delivery of such
96
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 or substitution of one or more
Mortgage Loans contemplated by this Section 2.03, upon receipt of a Request for
Release (in the form of Exhibit D attached hereto) of a Servicing Officer of the
Master Servicer certifying as to the receipt of the applicable Purchase Price(s)
in the Certificate Account (in the case of any such repurchase) or the receipt
of the applicable Substitution Shortfall Amount(s) in the Certificate Account
and upon the delivery of the Mortgage File(s) and the Servicing File(s) for the
related Qualified Substitute Mortgage Loan(s) to the Master Servicer (in the
case of any such substitution), (i) the Trustee shall promptly execute and
deliver such endorsements and assignments as are provided to it, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the applicable Mortgage Loan Seller the legal and beneficial ownership of each
repurchased Mortgage Loan or Deleted Mortgage Loan, as applicable, being
released pursuant to this Section 2.03, and (ii) the Trustee, the Master
Servicer and the Special Servicer shall each tender promptly to the applicable
Mortgage Loan Seller, upon delivery to each of them of a receipt executed by the
applicable Mortgage Loan Seller, all portions of the Mortgage File and other
documents pertaining to each such Mortgage Loan possessed by it and the Master
Servicer and the Special Servicer shall release or cause to be released to the
applicable Mortgage Loan Seller any Escrow Payments and Reserve Funds held by it
in respect of such repurchased or Deleted Mortgage Loan; provided that any such
tender by the Trustee shall be conditioned upon its receipt from the Master
Servicer or the Special Servicer of a Request for Release.
Thereafter, the Trustee, the Master Servicer and the Special Servicer shall
have no further responsibility with regard to the related repurchased Mortgage
Loan(s) or Deleted Mortgage Loan(s), as applicable, and the related Mortgage
File(s) and Servicing File(s). The Master Servicer shall, and is hereby
authorized and empowered by the Trustee to, prepare, execute and deliver in its
own name, on behalf of the Certificateholders and the Trustee or any of them,
the endorsements and assignments contemplated by this Section 2.03, and the
Trustee shall execute any powers of attorney that are prepared and delivered to
the Trustee by the Master Servicer and are necessary to permit the Master
Servicer to do so. At the time a substitution is made, the related Mortgage Loan
Purchase Agreement or the Supplemental Agreement, as applicable, will provide
that the Mortgage Loan Seller shall deliver the related Mortgage File to the
Trustee and certify that the substitute Mortgage Loan is a Qualified Substitute
Mortgage Loan.
(c) The provisions of this Article II provide the sole remedy
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, with respect to any Material Document Defect in a Mortgage
File or any Material Breach of any representation or warranty set forth in or
required to be made pursuant to Section 4(a) of any Mortgage Loan Purchase
Agreement or Section 2(a) of the Supplemental Agreement or any of the
circumstances described in Section 6(b) of any Mortgage Loan Purchase Agreement
or in Section 4(b) of the Supplemental Agreement.
(d) The Trustee, with the cooperation of the Special Servicer (in the
case of Specially Serviced Mortgage Loans), shall, for the benefit of the
Certificateholders, enforce the
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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
reimbursed for the reasonable costs of such enforcement, together with interest
thereon at the Reimbursement Rate: first, from a specific recovery of costs,
expenses or attorneys' fees against the related Mortgage Loan Seller (or GMACCM,
in the case of enforcement under the Supplemental Agreement); second, pursuant
to Section 3.05(a)(x) out of the related Purchase Price, to the extent that such
expenses are a specific component thereof; and third, if at the conclusion of
such enforcement action it is determined that the amounts described in clauses
first and second are insufficient, then pursuant to Section 3.05(a)(xi) out of
general collections on the Mortgage Loans on deposit in the Certificate Account.
(e) Subject to the applicable time periods for cure, substitution,
repurchase or other remedy provided in this Agreement, if the applicable
Mortgage Loan Seller contests a repurchase claim for a Material Breach or
Material Document Defect and the Special Servicer determines that it is in the
best interest of the Certificateholders to proceed with a liquidation or workout
(any modification pursuant to which shall not constitute a defense against a
repurchase) of a Mortgage Loan that is in default while pursuing a repurchase
claim; provided, that any such action is consistent with the Servicing Standard,
the Mortgage Loan Seller will be liable for the difference between the aggregate
of all Liquidation Proceeds, Insurance Proceeds, net REO Revenues and all other
amounts previously received from the liquidation or workout of, or otherwise in
respect of, such Mortgage Loan and the Purchase Price to the extent the
repurchase claim is successful.
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
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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.
Section 2.07 Conveyance of REMIC II Regular Interests; Acceptance of REMIC
III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery hereof, does hereby assign without recourse all the right, title
and interest of the Depositor in and to the REMIC II Regular Interests to the
Trustee for the benefit of the REMIC III Certificateholders. The Trustee
acknowledges the assignment to it of the REMIC II Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future REMIC III Certificateholders.
Section 2.08 Issuance of REMIC III Certificates.
Concurrently with the assignment to the Trustee of the REMIC II Regular
Interests, and in exchange therefor, at the direction of the Depositor, the
Trustee has executed, and caused the Certificate Registrar to authenticate and
deliver, to or upon the order of the Depositor, the REMIC III Certificates in
authorized denominations evidencing the entire beneficial ownership of REMIC
III. The rights of the respective Classes of REMIC III Certificateholders to
receive distributions from the proceeds of REMIC III in respect of their REMIC
III Certificates, and all ownership interests of the respective Classes of REMIC
III Certificateholders in and to such distributions, shall be as set forth in
this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
Section 3.01 Servicing and Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service
and administer the Mortgage Loans (excluding the Xxxx Xxxxxxx Tower Mortgage
Loan and the
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Xxxxxxxxx Xxxx Mortgage Loan) and the Serviced Whole Loans that it is obligated
to service and administer pursuant to this Agreement on behalf of the Trustee
and in the best interests of and for the benefit of the Certificateholders and,
with respect to the Serviced Whole Loans, on behalf of the Certificateholders
and the related Serviced Companion Loan Holders (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 accordance with applicable law,
the terms of this Agreement and the terms of the respective Mortgage Loans and
Serviced Companion Loans, respectively, and, to the extent consistent with the
foregoing, further as follows: (i) with the same care, skill and diligence as is
normal and usual in its general mortgage servicing and REO property management
activities on behalf of third parties or on behalf of itself, whichever is
higher, with respect to mortgage loans and REO properties that are comparable to
those for which it is responsible hereunder; (ii) with a view to the timely
collection of all scheduled payments of principal and interest under the
Mortgage Loans and Serviced Companion Loans or, if a Mortgage Loan or Serviced
Whole Loan comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery on such Mortgage Loan to the Certificateholders (as a collective whole)
and, with respect to the Serviced Whole Loans, the maximization of the recovery
on the Serviced Whole Loans, to the Certificateholders and the Serviced
Companion Loan Holders (as a collective whole), on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders or the Serviced Companion Loan Holders, as applicable, to be
performed at the related Net Mortgage Rate); and (iii) without regard to (A) any
relationship that the Master Servicer or the Special Servicer, as the case may
be, or any Affiliate thereof may have with the related Mortgagor, (B) the
ownership of any Certificate or any Serviced Companion Loan Security by the
Master Servicer or the Special Servicer, as the case may be, or by any Affiliate
thereof, (C) the Master Servicer's obligation to make Advances, (D) the Special
Servicer's obligation to direct the Master Servicer to make Servicing Advances,
(E) the right of the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction and (F) the obligation
of GMACCM to repurchase Mortgage Loans pursuant to Section 4(b) of the
Supplemental Agreement (the conditions set forth in the immediately foregoing
clauses (i), (ii) and (iii), the "Servicing Standard"). Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, in connection with its servicing and administrative
duties hereunder is hereby authorized and empowered by the Trustee, to exercise
efforts consistent with the foregoing standard and to execute and deliver, on
behalf of the Certificateholders, the Serviced Companion Loan Holders and the
Trustee or any of them, any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; subject to Section
3.21, any and all modifications, waivers, amendments or consents to or with
respect to any documents contained in the related Mortgage File; and any and all
instruments of satisfaction or cancellation, or of full release or discharge,
and all other comparable instruments, with respect to the Mortgage Loans, the
Serviced Whole Loans and the Mortgaged Properties. Each of the Master Servicer
and the Special Servicer is also authorized to approve a request by a Mortgagor
under a Mortgage Loan or Serviced Whole Loan that it is obligated to service and
administer pursuant to this Agreement,
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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 Serviced Whole Loan. Subject to Section 3.10, the Trustee shall furnish,
or cause to be furnished, to the Master Servicer and the Special Servicer any
powers of attorney and other documents necessary or appropriate to enable the
Master Servicer or the Special Servicer, as the case may be, to carry out its
servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable, and shall be indemnified by the Master
Servicer or the Special Servicer, as applicable, for any negligence with respect
to, or willful misuse of, any such power of attorney by the Master Servicer or
the Special Servicer, as the case may be; provided, further, that neither the
Master Servicer nor the Special Servicer, without the written consent of the
Trustee, shall initiate any action in the name of the Trustee, without
indicating its representative capacity or cause the Trustee to be registered to
do business in any state.
(b) Subject to Section 3.01(a) and Section 3.24(f) (taking account of
Section 3.24(g)), the Master Servicer and the Special Servicer each shall have
full power and authority, acting alone or, subject to Section 3.23, through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
(c) The relationship of the Master Servicer and the Special Servicer
to the Trustee and, unless the same Person acts in multiple capacities, to each
other under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
Unless the same Person acts in both capacities, the Master Servicer shall have
no responsibility for the performance by the Special Servicer of its duties
under this Agreement, and the Special Servicer shall have no responsibility for
the performance of the Master Servicer under this Agreement.
(d) Subject to Section 3.01(a), each of the Master Servicer and
Special Servicer shall service and administer each Mortgage Loan that is a
Cross-Collateralized Mortgage Loan as a single Mortgage Loan in each case as and
when it deems such treatment necessary and appropriate.
(e) (i) The parties hereto acknowledge that the Geneva Commons Whole
Loan is subject to the terms and conditions of the Geneva Commons Intercreditor
Agreement. With respect to the Geneva Commons Whole Loan, the Trustee, the
Master Servicer and the Special Servicer recognize the respective rights and
obligations of the Trust and the Geneva Commons Companion Loan Holder under the
Geneva Commons Intercreditor Agreement, including with respect to the allocation
of collections on or in respect of the Geneva Commons Whole Loan in accordance
with Section 3.2 of the Geneva Commons Intercreditor Agreement. The Master
Servicer shall comply with the applicable provisions of the Geneva Commons
Intercreditor Agreement, and if the Geneva Commons Whole Loan is then being
specially serviced, the Special Servicer shall comply with the applicable
provisions of the Geneva Commons Intercreditor Agreement, including, in each
case, the provisions of Section 3.3 and 3.4 thereof.
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(ii) The parties hereto acknowledge that the DDR Portfolio Whole
Loan is subject to the terms and conditions of the DDR Portfolio Intercreditor
Agreement. With respect to the DDR Portfolio Whole Loan, the Trustee, the Master
Servicer and the Special Servicer recognize the respective rights and
obligations of the Trust and the DDR Portfolio Companion Loan Holders under the
DDR Portfolio Intercreditor Agreement, including with respect to the allocation
of collections on or in respect of the DDR Portfolio Whole Loan in accordance
with Section 3.2 of the DDR Portfolio Intercreditor Agreement. The Master
Servicer shall comply with the applicable provisions of the DDR Portfolio
Intercreditor Agreement, and if the DDR Portfolio Whole Loan is then being
specially serviced, the Special Servicer shall comply with the applicable
provisions of the DDR Portfolio Intercreditor Agreement, including, in each
case, the provisions of Section 3.3 and 3.4 thereof.
(f) Notwithstanding the foregoing provisions of this Section 3.01:
(i) the Xxxx Xxxxxxx Tower Mortgage Loan shall be serviced and
administered by the LB-UBS 2003-C5 Master Servicer and the LB-UBS 2003-C5
Special Servicer pursuant to the LB-UBS 2003-C5 Pooling and Servicing Agreement
and the Xxxx Xxxxxxx Tower Co-Lender Agreement, except as otherwise specifically
provided in this Agreement. If the Xxxx Xxxxxxx Tower Companion Loan that is an
asset under the trust created by the LB-UBS 2003-C5 Pooling and Servicing
Agreement is removed from the mortgage loan pool created under the LB-UBS
2003-C5 Pooling and Servicing Agreement, or if the LB-UBS 2003-C5 Pooling and
Servicing Agreement is otherwise terminated, the servicing of the Xxxx Xxxxxxx
Tower Mortgage Loan shall be transferred, pursuant to the Xxxx Xxxxxxx Tower
Co-Lender Agreement, and shall be serviced and administered by a successor
servicing agreement, which shall have similar provisions to the LB-UBS 2003-C5
Pooling and Servicing Agreement as set forth in the Xxxx Xxxxxxx Tower Co-Lender
Agreement.
(ii) The Boulevard Mall Mortgage Loan shall be serviced and
administered by the GE 2003-C2 Master Servicer and the GE 2003-C2 Special
Servicer pursuant to the GE 2003-C2 Pooling and Servicing Agreement, the
Boulevard Mall Intercreditor Agreement and the Boulevard Mall Agreement Among
Noteholders, except as otherwise specifically provided in this Agreement. If the
Boulevard Mall Companion Loan is removed from the mortgage loan pool created
under the GE 2003-C2 Pooling and Servicing Agreement, or if the GE 2003-C2
Pooling and Servicing Agreement is otherwise terminated, the servicing of the
Boulevard Mall Mortgage Loan shall be transferred, pursuant to the Boulevard
Mall Intercreditor Agreement, and shall be serviced and administered by a
successor servicing agreement, which shall have similar provisions to the GE
2003-C2 Pooling and Servicing Agreement as set forth in the Boulevard Mall
Intercreditor Agreement.
Section 3.02 Collection of Mortgage Loan and Serviced Companion Loan
Payments.
(a) 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
(excluding the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage
Loan) and the Serviced Companion Loans (as the case may be) serviced hereunder,
and shall, to the extent such procedures shall be consistent with this
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Agreement and the terms and conditions of the Mortgage Loans and Serviced
Companion Loans, follow such collection procedures as are consistent with the
Servicing Standard; provided, however, that nothing herein contained shall be
construed as an express or implied guarantee by the Master Servicer or the
Special Servicer of the collectability of the Mortgage Loans and Serviced
Companion Loans. Consistent with the foregoing, the Master Servicer may in its
discretion waive any Penalty Charge in connection with any delinquent payment on
a Mortgage Loan or Serviced Companion Loan serviced hereunder (other than a
Specially Serviced Mortgage Loan) and the Special Servicer may in its discretion
waive any Penalty Charge in connection with any delinquent payment on a
Specially Serviced Mortgage Loan.
(b) Promptly following the Closing Date, the Trustee shall send
written notice to the LB-UBS 2003-C5 Master Servicer and the GE 2003-C2 Master
Servicer and Bank of America N.A. (as sub-servicer of the Boulevard Mall
Mortgage Loan, the Boulevard Mall Companion Loan and the Boulevard Mall B Note)
stating that, as of the Closing Date, the Trustee is the holder of the Xxxx
Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan and directing
the LB-UBS 2003-C5 Master Servicer and Bank of America, N.A. to remit to the
Master Servicer all amounts payable to, and directing the LB-UBS 2003-C5 Master
Servicer and GE 2003-C2 Master Servicer to forward, deliver or otherwise make
available, as the case may be, to the Master Servicer all reports, statements,
documents, communications and other information that are to be forwarded,
delivered or otherwise made available to, the holder of the Xxxx Xxxxxxx Tower
Mortgage Loan and the Boulevard Mall Mortgage Loan under the Xxxx Xxxxxxx Tower
Co-Lender Agreement and the LB-UBS 2003-C5 Pooling and Servicing Agreement and
the Boulevard Mall Intercreditor Agreement, the Boulevard Mall Agreement Among
Noteholders and the GE 2003-C2 Pooling and Servicing Agreement, as applicable,
except the Balloon Payment due on the Xxxx Xxxxxxx Tower Mortgage Loan and the
remittance report related to such Balloon Payment, which the Trustee shall
direct the LB-UBS 2003-C5 Master Servicer to remit and deliver directly to the
Trustee. Upon receipt by the Trustee of such Balloon Payment, the Master
Servicer may withdraw from general collections on deposit in the Certificate
Account amounts that would otherwise be payable to the Master Servicer from such
Balloon Payment pursuant to Section 3.05 (a) had it been received by the Master
Servicer. The Master Servicer shall, on the day of receipt thereof, deposit into
the Certificate Account all amounts received with respect to the Xxxx Xxxxxxx
Tower Mortgage Loan and the Boulevard Mall Mortgage Loan, the Xxxx Xxxxxxx Tower
Mortgaged Property and the Boulevard Mall Mortgaged Property or any related REO
Property.
Section 3.03 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts and Reserve Accounts.
(a) Each of the Master Servicer (or the Special Servicer with respect
to the Specially Serviced Mortgage Loans) shall establish and maintain one or
more accounts (the "Servicing Accounts"), into which all Escrow Payments with
respect to the Mortgage Loans and Serviced Companion Loans serviced hereunder
shall be deposited and retained. Servicing Accounts shall be Eligible Accounts.
Withdrawals of amounts so collected in respect of any Mortgage Loan or Serviced
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 and the Master Servicer,
in that order, as applicable, for any
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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 Serviced Companion Loan. The Servicing
Accounts shall not be considered part of the segregated pool of assets
constituting REMIC I, REMIC II, REMIC III or the Grantor Trust.
(b) Each of the Master Servicer (with respect to Mortgage Loans and
Serviced Companion Loans serviced hereunder other than Specially Serviced
Mortgage Loans) 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 and Serviced
Companion Loans which require the related Mortgagor to escrow for the payment of
such items, and shall effect payment thereof prior to the applicable penalty or
termination date, employing for such purpose Escrow Payments as allowed under
the terms of the related Mortgage Loan or Serviced Companion Loan. To the extent
that a Mortgage Loan or Serviced Companion Loan does not require a Mortgagor to
escrow for the payment of real estate taxes, assessments, insurance premiums,
ground rents (if applicable) and similar items, the Master Servicer (or the
Special Servicer with respect to the Specially Serviced Mortgaged Loans) shall
use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to comply with the requirements of the related Mortgage for
payments in respect of such items at the time they first become due.
(c) In accordance with the Servicing Standard, the Master Servicer (at
the direction of the Special Servicer in the case of Specially Serviced Mortgage
Loans) shall advance with respect to each Mortgaged Property relating to the
Mortgage Loans and the Serviced Companion Loans serviced hereunder all such
funds as are necessary for the purpose of effecting the payment of (i) real
estate taxes, assessments and other similar items that are or may become a lien
thereon, (ii) ground rents (if applicable), and (iii) premiums on Insurance
Policies, in each instance if and to the extent Escrow Payments collected from
the related Mortgagor are insufficient to pay such item when due and the related
Mortgagor has failed to pay such item on a timely basis; provided, that the
particular advance would not, if made, constitute a Nonrecoverable Servicing
Advance. All such Servicing Advances shall be reimbursable in the first instance
from related collections from the Mortgagors, and further as provided in Section
3.05. No costs incurred by the Master Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments, ground rents (if
applicable) and other similar items on or in respect of the Mortgaged Properties
shall, for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balances
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of the related Mortgage Loans or Serviced Companion Loans, notwithstanding that
the terms of such Mortgage Loans or Serviced Companion Loans so permit. The
parties acknowledge that, pursuant to the LB-UBS 2003-C5 Pooling and Servicing
Agreement and the GE 2003-C2 Pooling and Servicing Agreement, the LB-UBS 2003-C5
Master Servicer and the GE 2003-C2 Master Servicer, respectively, are each
obligated to make servicing advances with respect to the Xxxx Xxxxxxx Tower
Mortgage Loan and the Boulevard Mall Mortgage Loan, respectively. The LB-UBS
2003-C5 Master Servicer and the GE 2003-C2 Master Servicer shall be entitled to
reimbursement for any Nonrecoverable Servicing Advances (with, in each case, any
accrued and unpaid interest thereon provided for under the LB-UBS 2003-C5
Pooling and Servicing Agreement or the GE 2003-C2 Pooling and Servicing
Agreement, as applicable) in the manner set forth in the Xxxx Xxxxxxx Tower
Co-Lender Agreement and the LB-UBS 2003-C5 Pooling and Servicing Agreement and
the Boulevard Mall Intercreditor Agreement, the Boulevard Mall Agreement Among
Noteholders and the GE 2003-C2 Pooling and Servicing Agreement, as applicable.
(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, Mortgage and any agreement governing the Reserve Funds, 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 Certificate Account, Distribution Account, Interest Reserve
Account and Serviced Whole Loan Custodial Accounts.
(a) The Master Servicer shall establish and maintain a Certificate
Account that shall be held in the name of the Master Servicer on behalf of the
Certificateholders. The Master Servicer shall deposit or cause to be deposited
into the Certificate Account on a daily basis, except as otherwise specifically
provided herein, the following payments and collections received or made by or
on behalf of it subsequent to the Cut-off Date (other than in respect of
principal and interest on the Mortgage Loans due and payable on or before the
Cut-off Date, which payments shall be held by the Mortgage Loan Seller as
provided in the applicable Mortgage Loan Purchase Agreement), and payments
(other than Principal Prepayments) received by it on or prior to the Cut-off
Date but allocable to a period subsequent thereto:
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(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans (other than the Mortgage Loans related to the
Serviced Whole Loans);
(ii) all payments on account of interest (including, without
limitation, Default Interest and Excess Interest) on the Mortgage Loans (other
than the Mortgage Loans related to the Serviced Whole Loans), late payment
charges and Prepayment Premiums;
(iii) any amounts received from the Special Servicer which are
required to be transferred from the REO Account (other than the REO Accounts
with respect to the Serviced Whole Loans) pursuant to Section 3.16(c) and
amounts of interest and investment income earned in respect of amounts relating
to the Trust Fund held in any Lock-Box Account or Cash Collateral Account, if
any, and only to the extent not required to be paid to the applicable Mortgagor
under the terms of the related Mortgage Loan documents or applicable law;
(iv) all Insurance Proceeds and Liquidation Proceeds received in
respect of any Mortgage Loan (other than the Mortgage Loans related to the
Serviced Whole Loans) or any REO Property (other than REO Property related to
the Serviced Whole Loans), other than Excess Liquidation Proceeds and
Liquidation Proceeds that are received in connection with the Master Servicer's
or the Depositor's purchase of all the Mortgage Loans and any REO Properties in
the Trust Fund and that are to be deposited in the Distribution Account pursuant
to Section 9.01) and any Borrower Recoveries;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds relating to the Trust Fund held in the
Certificate Account;
(vi) that portion of each Delinquency Advance that represents
(without duplication) the Servicing Fee;
(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; and
(viii) any amounts required to be transferred to the Certificate
Account from a Serviced Whole Loan Custodial Account pursuant to Section
3.05(e).
The foregoing requirements for deposit in the Certificate Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, actual payments from Mortgagors in the nature of Escrow
Payments, Reserve Funds, charges for beneficiary statements or demands,
assumption fees, amounts collected for checks returned for insufficient funds,
ancillary fees and any other amounts that the Master Servicer and the Special
Servicer are entitled to as additional servicing compensation pursuant to
Section 3.11 need not be deposited by the Master Servicer in the Certificate
Account. If the Master Servicer shall deposit in the Certificate Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Certificate Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer, as additional servicing compensation in accordance with Section
3.11(d), all assumption fees,
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modification fees, ancillary fees and other transaction fees due to and received
by the Master Servicer with respect to Specially Serviced Mortgage Loans. The
Certificate Account shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage pass-through certificates of other
series serviced by and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i), (ii) and (iv)
above with respect to any Mortgage Loan which is not an REO Loan, the Special
Servicer shall promptly, but in no event later than two Business Days after
receipt, remit such amounts to the Master Servicer for deposit into the
Certificate Account in accordance with the second preceding paragraph, unless
the Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property shall be deposited by the Special Servicer into the
REO Account and remitted to the Master Servicer for deposit into the Certificate
Account pursuant to Section 3.16(c). With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
such check to the order of the Master Servicer and shall deliver promptly, but
in no event later than two Business Days after receipt, any such check to the
Master Servicer by overnight courier, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason.
Funds in the Certificate Account may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall give notice to the Trustee, the Special Servicer and the
Depositor of the location of the Certificate Account as of the Closing Date and
of the new location of the Certificate Account prior to any change thereof.
(b) The Trustee shall establish and maintain the Distribution Account
in trust for the benefit of the Certificateholders. The Distribution Account
shall be maintained as a segregated account, separate and apart from trust funds
for mortgage pass-through certificates of other series administered by the
Trustee and other accounts of the Trustee.
The Master Servicer shall deliver to the Trustee each month on or before
the Master Servicer Remittance Date therein, for deposit in the Distribution
Account, that portion of the Available Distribution Amount (calculated without
regard to clauses (b)(iii) or (b)(iv) of the definition thereof and excluding
the Balloon Payment on the Xxxx Xxxxxxx Tower Loan, which will be remitted
directly to the Trustee) for the related Distribution Date then on deposit in
the Certificate 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 Distribution Account:
(i) any Delinquency Advances required to be made by the Master
Servicer in accordance with Section 4.03 (in each case, net of the portion
thereof that represents Servicing Fees and/or Special Servicing Fees, which is
to be deposited in the Certificate Account);
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(ii) any Compensating Interest Payments required to be made by
the Master Servicer pursuant to Section 3.20;
(iii) any Liquidation Proceeds paid by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor in
connection with the purchase of all of the Mortgage Loans and any REO Properties
in the Trust Fund pursuant to Section 9.01 (exclusive of that portion thereof
required to be deposited in the Certificate Account pursuant to Section 9.01);
(iv) all amounts received from the LB-UBS 2003-C5 Master
Servicer, the LB-UBS 2003-C5 Special Servicer or the LB-UBS 2003-C5 Trustee
pursuant to the LB-UBS 2003-C5 Pooling and Servicing Agreement or the Xxxx
Xxxxxxx Tower Co-Lender Agreement on account of the Xxxx Xxxxxxx Tower Mortgage
Loan;
(v) all amounts received from the GE 2003-C2 Master Servicer, the
GE 2003-C2 Special Servicer or the GE 2003-C2 Trustee pursuant to the GE 2003-C2
Pooling and Servicing Agreement, the Boulevard Mall Intercreditor Agreement or
the Boulevard Mall Agreement Among Noteholders on account of the Boulevard Mall
Mortgage Loan; and
(vi) any other amounts required to be so delivered for deposit in
the Distribution Account pursuant to any provision of this Agreement.
(c) The Trustee shall, upon receipt, deposit in the Distribution
Account any and all amounts received by the Trustee that are required by the
terms of this Agreement to be deposited therein. If, as of 3:00 p.m. (New York
City time) on any Master Servicer Remittance Date or on such other date as any
amount is required to be delivered for deposit in the Distribution Account, the
Master Servicer shall not have delivered to the Trustee for deposit in the
Distribution Account the relevant portion of the Available Distribution Amount,
or any of the other amounts required to be deposited therein, then the Trustee
shall provide notice of such failure to a Servicing Officer of the Master
Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such
alternative number provided by the Master Servicer to the Trustee in writing)
and by telephone at telephone no. (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) as soon as possible,
but in any event before 5:00 p.m. (New York City time) on such day. To the
extent the Master Servicer has not delivered to the Trustee for deposit in the
Distribution Account such amounts as are required to be delivered on the Master
Servicer Remittance Date, the Master Servicer shall pay interest thereon to the
Trustee at an interest rate equal to the Reimbursement Rate then in effect for
the period from and including the Master Servicer Remittance Date to and
excluding the date such amounts are deposited.
Funds in the Distribution Account may be invested by the Trustee in
Permitted Investments and the Trustee shall be required to deposit an amount
equal to the Net Investment Loss, if any, in such account, all as provided in
accordance with the provisions of Section 3.06. The Trustee shall give notice to
the Master Servicer, the Special Servicer and the Depositor of the location of
the Distribution Account as of the Closing Date and of the new location of the
Distribution Account prior to any change thereof.
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(d) The Trustee shall establish (upon an event occurring that
generates Excess Liquidation Proceeds) and maintain the Excess Liquidation
Proceeds Reserve Account in trust for the benefit of the Certificateholders. The
Excess Liquidation Proceeds Reserve Account shall be maintained as a segregated
account, separate and apart from trust funds for mortgage pass-through
certificates of other series administered by the Trustee and other accounts of
the Trustee. Funds in the Excess Liquidation Proceeds Reserve Account may be
invested by the Trustee in Permitted Investments in accordance with the
provisions of Section 3.06 and the Trustee shall be required to deposit an
amount equal to the Net Investment Loss, if any, in such account, all as
provided in accordance with the provisions of Section 3.06.
Upon the disposition of any REO Property in accordance with Section 3.19,
the Special Servicer will calculate the Excess Liquidation Proceeds, if any,
realized in connection with such sale and deposit such amount in the Excess
Liquidation Proceeds Reserve Account.
(e) The Trustee shall establish and maintain the Interest Reserve
Account in trust for the benefit of the Certificateholders. The Interest Reserve
Account shall be maintained as a segregated account, separate and apart from
trust funds for mortgage pass-through certificates of other series administered
by the Trustee and other accounts of the Trustee. Funds in the Interest Reserve
Account may be invested in Permitted Investments in accordance with the
provisions of Section 3.06 and the Trustee shall be required to deposit an
amount equal to the Net Investment Loss, if any, in such account, all as
provided in accordance with the provisions of Section 3.06.
On each Master Servicer Remittance Date occurring in (i) January of each
calendar year that is not a leap year and (ii) February of each calendar year,
the Trustee shall calculate the Withheld Amount with respect to each Interest
Reserve Loan. On each such Master Servicer Remittance Date, the Trustee shall
withdraw from the Distribution Account and deposit in the Interest Reserve
Account an amount equal to the aggregate of the Withheld Amounts calculated in
accordance with the previous sentence. If the Trustee shall deposit in the
Interest Reserve Account any amount not required to be deposited therein, it may
at any time withdraw such amount from the Interest Reserve Account, any
provision herein to the contrary notwithstanding. On or prior to the Master
Servicer Remittance Date in March of each calendar year, the Trustee shall
transfer to the Distribution Account the aggregate of all Withheld Amounts on
deposit in the Interest Reserve Account.
(f) With respect to each Serviced Whole Loan, the Master Servicer
shall maintain, or cause to be maintained, one or more Serviced Whole Loan
Custodial Accounts in which the Master Servicer shall deposit or cause to be
deposited within one Business Day following receipt of available funds, except
as otherwise specifically provided herein, the following payments and
collections received or made by or on behalf of it on the related Serviced Whole
Loan subsequent to the Cut-off Date (other than in respect of principal and
interest on the Serviced Whole Loan due and payable on or before the Cut-off
Date, which payments shall be held in accordance with the related Serviced Whole
Loan Intercreditor Agreement), or payments (other than Principal Prepayments)
received by it on or prior to the Cut-off Date but allocable to a period
subsequent thereto:
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(i) all payments on account of principal, including Principal
Prepayments, on the applicable Serviced Whole Loan;
(ii) all payments on account of interest (including, without
limitation, Default Interest) on the applicable Serviced Whole Loan (net of the
related Servicing Fees), late payments charges and Prepayment Premiums;
(iii) any amounts received from the Special Servicer which are
required to be transferred from the REO Account pursuant to Section 3.16(c) and
amounts of interest and investment income earned in respect of amounts relating
to the Trust Fund held in any Lock-Box Account or Cash Collateral Account, if
any, and only to the extent not required to be paid to the applicable Mortgagor
under the terms of the related loan documents or applicable law;
(iv) all Insurance Proceeds and Liquidation Proceeds received in
respect of the applicable Serviced Whole Loan or related REO Property (other
than Liquidation Proceeds that are received in connection with the purchase by
the Master Servicer or the Special Servicer of all the Mortgage Loans and any
REO Property in the Trust Fund and that are to be deposited in the Distribution
Account pursuant to Section 9.01); and
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the such Serviced Whole Loan Custodial
Account.
The foregoing requirements for deposit into any Serviced Whole Loan
Custodial Account shall be exclusive; it being understood and agreed, that
without limiting the generality of the foregoing, actual payments from the
related Mortgagor in the nature of Escrow Payments, charges for beneficiary
statements or demands, assumption fees, modification fees, extension fees or
amounts collected for checks returned for insufficient funds need not be
deposited by the Master Servicer into any Serviced Whole Loan Custodial Account.
If the Master Servicer shall deposit in a Serviced Whole Loan Custodial Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from such Serviced Whole Loan Custodial Account, any provision
herein to the contrary notwithstanding. All assumption, extension and
modification fees actually received from the related Mortgagor on a Specially
Serviced Mortgage Loan shall be promptly delivered to the Special Servicer as
additional servicing compensation, but only to the extent the payment of such
fees are in accordance with Section 3.11 and any other terms hereof. Each
Serviced Whole Loan Custodial Account shall be maintained as a segregated
account, separate and apart from any trust fund created for mortgage-backed
securities of other series and the other accounts of the Master Servicer;
provided, however, that each Serviced Whole Loan Custodial Account may be a
sub-account of the Certificate Account.
Upon receipt of any of the foregoing amounts described in clauses (i), (ii)
and (iv) above with respect to the related Serviced Whole Loan for so long as it
is a Specially Serviced Mortgage Loan but is not an REO Loan, the Special
Servicer shall remit within one Business Day such amounts to the Master Servicer
for deposit into the applicable Serviced Whole Loan Custodial Account in
accordance with the second preceding paragraph. Any such amounts received by the
Special Servicer with respect to an REO Property related to the Serviced Whole
Loan shall initially be deposited by the Special Servicer into the related
Serviced Whole Loan
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REO Account and remitted to the Master Servicer for deposit into the applicable
Serviced Whole Loan Custodial Account pursuant to Section 3.04(f). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse without recourse or warranty such check to the
order of the Master Servicer and shall promptly deliver any such check to the
Master Servicer by overnight courier.
Funds in a Serviced Whole Loan Custodial Account may only be invested in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the Trustee, the Special Servicer, the
Depositor and each related Serviced Companion Loan Holder of the location of the
Serviced Whole Loan Custodial Account as of the Closing Date and of the new
location of a Serviced Whole Loan Custodial Account prior to any change thereof.
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Liquidation
Proceeds Reserve Account and Serviced Whole Loan Custodial Accounts;
Establishment of Serviced Companion Loan Distribution Accounts.
(a) The Master Servicer may, from time to time, make withdrawals from
the Certificate Account for any of the following purposes:
(i) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be remitted pursuant to the second paragraph of
Section 3.04(b) or that may be applied to make Delinquency Advances pursuant to
Section 4.03(a);
(ii) to pay itself unpaid Servicing Fees payable to itself earned
thereby in respect of each Mortgage Loan and each related REO Loan, the Master
Servicer's rights to payment pursuant to this clause (ii) being limited to
amounts received or advanced on or in respect of such Mortgage Loan or such REO
Loan that are allocable as a recovery or advance of interest thereon;
(iii) to pay to the Special Servicer, out of general collections
on the Mortgage Loans and any related REO Properties, earned and unpaid Special
Servicing Fees in respect of any Mortgage Loan (other than the Xxxx Xxxxxxx
Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) that is a Specially
Serviced Mortgage Loan or REO Loan, but with respect to the Mortgage Loans
related to the Serviced Whole Loans, only to the extent that amounts on deposit
in the related Serviced Whole Loan Custodial Account are insufficient therefor;
(iv) to pay to the Special Servicer earned and unpaid Workout
Fees and Liquidation Fees with respect to the Mortgage Loans (other than the
Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) to which
it is entitled pursuant to, and from the sources contemplated by, Section
3.11(c), but with respect to the Mortgage Loans related to the Serviced Whole
Loans, only to the extent that amounts on deposit in the related Serviced Whole
Loan Custodial Account are insufficient therefor;
(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
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respective rights to be reimbursed pursuant to this clause (v) being limited to
amounts received that represent Late Collections of interest on and principal of
the particular Mortgage Loans and REO Loans with respect to which such
Delinquency Advances were made (in each case, net of related Workout Fees), but
with respect to the Mortgage Loans related to the Serviced Whole Loans, only to
the extent that amounts on deposit in the related Serviced Whole Loan Custodial
Account that are allocable to the related Mortgage Loan are insufficient
therefor;
(vi) to reimburse the Trustee and itself, in that order, as
applicable, for unreimbursed Servicing Advances made thereby, the Master
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, but with respect to the
Mortgage Loans related to the Serviced Whole Loans, only to the extent that
amounts on deposit in the related Serviced Whole Loan Custodial Account are
insufficient therefor;
(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 Nonrecoverable Advances made thereby, but with
respect to the Mortgage Loans related to the Serviced Whole Loans, only to the
extent that amounts on deposit in the related Serviced Whole Loan Custodial
Account are insufficient therefor;
(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, but with
respect to the Mortgage Loans related to the Serviced Whole Loans, only to the
extent that amounts on deposit in the related Serviced Whole Loan Custodial
Account are insufficient therefor;
(ix) to reimburse itself (if it is not the affected Mortgage Loan
Seller) or the Trustee, as the case may be, for any unreimbursed expenses
reasonably incurred by such Person in respect of any Material Breach or Material
Document Defect giving rise to a repurchase obligation of a Mortgage Loan Seller
under Section 6 of the related Mortgage Loan Purchase Agreement (or Section 4 of
the Supplemental Agreement, if applicable), 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) or (e) 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
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Reimbursement Rate, but only to the extent that such expenses are not
reimbursable pursuant to clause (ix) above or otherwise;
(xi) to pay out of general collections on the Mortgage Loans and
related REO Properties, for costs and expenses incurred by the Trust Fund with
respect to the Mortgage Loans and related REO Properties pursuant to Section
3.09(c) and to pay Liquidation Expenses out of related Liquidation Proceeds
pursuant to Section 3.09;
(xii) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned in
respect of amounts relating to the Trust Fund held in the Certificate Account,
any Lock Box Account and Cash Collateral Account as provided in Section 3.06(b)
(but only to the extent of the Net Investment Earnings with respect to the
Certificate Account, any Lock Box Account and Cash Collateral Account for any
Collection Period), (B) Prepayment Interest Excesses and Balloon Payment
Interest Excess received on the Mortgage Loans and (C) Penalty Charges received
on Mortgage Loans that are not Specially Serviced Mortgage Loans (but only to
the extent not otherwise allocable to cover Advance Interest in respect of the
related Mortgage Loan (excluding the Xxxx Xxxxxxx Tower Mortgage Loan and the
Boulevard Mall Mortgage Loan) or Serviced Companion Loan);
(xiii) to pay to the Special Servicer, as additional servicing
compensation, all Penalty Charges received on any Specially Serviced Mortgage
Loan (but only to the extent not otherwise allocable to pay Advance Interest in
respect of the related Specially Serviced Mortgage Loan);
(xiv) to pay itself, the Depositor, or any of their respective
directors, officers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and REO Properties, any amounts payable to any
such Person pursuant to Section 6.03;
(xv) to pay, out of general collections on the Mortgage Loans and
REO Properties, for (A) the cost of the Opinions of Counsel contemplated by
Sections 3.09(b)(ii) and 3.16(a), (B) the cost of the advice of counsel
contemplated by Section 3.17(a), (C) the cost of any Opinion of Counsel
contemplated by Section 11.01(a) in connection with an amendment to this
Agreement, which amendment is in furtherance of the rights and interests of
Certificateholders, (D) the cost of obtaining the REO Extension contemplated by
Section 3.16(a), (E) the cost of recording this Agreement in accordance with
Section 11.02(a) and (F) the cost of a new Appraisal obtained pursuant to
Section 3.11(h) or Section 4.03(c);
(xvi) to pay itself, the Special Servicer, any Mortgage Loan
Seller, GMACCM or the Majority Certificateholder of the Controlling Class, as
the case may be, with respect to each Mortgage Loan, if any, previously
purchased by such Person pursuant to or as contemplated by this Agreement, all
amounts received on such Mortgage Loan subsequent to the date of purchase;
(xvii) to withdraw funds deposited into the Certificate Account
in error; and
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
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For each Mortgage Loan, the Master Servicer shall keep and maintain
separate accounting records, on a loan-by-loan basis (and for each REO Loan, on
a property-by-property basis) when appropriate, for the purpose of justifying
any withdrawal from the Certificate Account.
The Master Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account.
(b) The Trustee may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes (but not necessarily in
the following order of priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 and to deposit the Withheld Amounts
in the Interest Reserve Account pursuant to Section 3.04(d);
(ii) to pay itself interest and investment income earned in
respect of amounts relating to the Trust Fund held in the Distribution Account
as provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the Distribution Account for any Collection Period);
(iii) to pay itself unpaid Trustee Fees pursuant to Section
8.05(a);
(iv) to pay itself or any of their respective directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b);
(v) to pay for (A) the cost of the Opinion of Counsel
contemplated by Section 11.01(a) or (c) in connection with any amendment to this
Agreement requested by the Trustee, which amendment is in furtherance of the
rights and interests of Certificateholders, (B) the cost of the Opinion of
Counsel contemplated by Section 11.02(a) in connection with any recordation of
this Agreement and (C) to the extent payable out of the Trust Fund, the cost of
the Opinion of Counsel contemplated by Section 10.01(e) or Section 10.03(f);
(vi) to (A) pay any and all federal, state and local taxes
imposed on REMIC I, REMIC II or REMIC III or on the assets or transactions of
any such REMIC, together with all incidental costs and expenses, and any and all
reasonable expenses relating to tax audits, if and to the extent that either (1)
none of the Trustee, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(g) or (2) any such Person that may be so
liable has failed to make the required payment, and (B) reimburse the Trustee
for reasonable expenses
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incurred by and reimbursable to it by the Trust Fund pursuant to Section
10.03(b) or Section 10.01(c);
(vii) to withdraw funds deposited into the Distribution Account
in error; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may, from time to time, make withdrawals from the
Interest Reserve Account to pay itself interest and investment income earned in
respect of amounts relating to the Trust Fund held in the Interest Reserve
Account (but only to the extent of Net Investment Earnings with respect to the
Interest Reserve Account for any Collection Period).
(d) The Trustee shall, on any Distribution Date, make withdrawals from
the Excess Liquidation Proceeds Reserve Account to the extent required to make
the distributions from the Excess Liquidation Proceeds Reserve Account required
by Section 4.01(c).
(e) The Master Servicer shall from time to time make withdrawals from
each Serviced Whole Loan Custodial Account, for any of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to make remittances each month on or before the third
Business Day before the Distribution Date therein, in accordance with the
applicable Serviced Whole Loan Intercreditor Agreement, in an aggregate amount
of immediately available funds equal to the applicable Serviced Whole Loan
Remittance Amount, to (A) the Serviced Companion Loan Paying Agent (on behalf of
the related Serviced Companion Loan Holders); provided, that if the Serviced
Whole Loan is a Defaulted Mortgage Loan or a Specially Serviced Mortgage Loan,
then such remittance shall be on or before the the second Business Day before
the Distribution Date in such month), and (B) to the Certificate Account for the
benefit of the Trust, in each case in accordance with the applicable Serviced
Whole Loan Intercreditor Agreement;
(ii) (A) to pay itself unpaid Servicing Fees and the Special
Servicer unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in
respect of the applicable Serviced Whole Loan and related REO Loan, as
applicable, the Master Servicer's or Special Servicer's, as applicable, rights
to payment of Servicing Fees and Special Servicing Fees, Liquidation Fees and
Workout Fees pursuant to this clause (ii)(A) with respect to the Serviced Whole
Loan or related REO Loan, as applicable, being limited to amounts received on or
in respect of the Serviced Whole Loan (whether in the form of payments,
Liquidation Proceeds or Insurance Proceeds), or such REO Loan (whether in the
form of REO Revenues, Liquidation Proceeds or Insurance Proceeds), that, in the
case of the Master Servicer, are allocable as recovery of interest thereon and
(B) each month to the Special Servicer any unpaid Special Servicing Fees,
Liquidation Fees and Workout Fees in respect of the Serviced Whole Loan or REO
Loan, as applicable, remaining unpaid out of collections on the Serviced Whole
Loan and related REO Property;
(iii) to reimburse itself and/or the Trustee for unreimbursed
Delinquency Advances with respect to the applicable Mortgage Loan and to
reimburse the
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related Serviced Companion Loan Master Servicer and/or the related Serviced
Companion Loan Trustee for any unreimbursed Delinquency Advances on a related
Serviced Companion Loan (to the extent allocable thereto), the Master Servicer's
or the Trustee's right to reimbursement pursuant to this clause (iii) being
limited to amounts received in such Serviced Whole Loan Custodial Account which
represent Late Collections received in respect of the Mortgage Loan and the
Serviced Companion Loan Master Servicer's or the Serviced Companion Loan
Trustee's right to reimbursement pursuant to this clause (iii) being limited to
amounts received in such Serviced Whole Loan Custodial Account which represent
Late Collections received in respect of the applicable Serviced Companion Loan
(as allocable thereto pursuant to the related Mortgage Loan documents and the
applicable Serviced Whole Loan Intercreditor Agreement) during the applicable
period;
(iv) to reimburse itself, the Special Servicer or the Trustee, as
applicable (in reverse of such order with respect to the Serviced Whole Loan or
REO Property), for unreimbursed Servicing Advances with respect to the Serviced
Whole Loan or related REO Property, the Master Servicer's, the Trustee's or the
Special Servicer's respective rights to receive payment pursuant to this clause
(iv) being limited to, as applicable, related payments, Liquidation Proceeds,
Insurance Proceeds and REO Revenues with respect to the Serviced Whole Loan;
(v) (A) to reimburse itself and the Serviced Companion Loan
Master Servicer (pro rata), the Special Servicer, the Trustee and the Serviced
Companion Loan Trustee (pro rata), as applicable (in reverse of such order with
respect to the Serviced Whole Loan or related REO Property), out of collections
on the applicable Serviced Whole Loan and REO Property for Nonrecoverable
Advances previously made or (B) to pay itself or the Special Servicer out of
collections on the Serviced Whole Loan and related REO Property, with respect to
the applicable Mortgage Loan or REO Property any related earned Servicing Fee,
Special Servicing Fee, Liquidation Fee or Workout Fee, as applicable, that
remained unpaid in accordance with clause (ii) above following a Final Recovery
Determination made with respect to the Serviced Whole Loan or related REO
Property and the deposit into such Serviced Whole Loan Custodial Account of all
amounts received in connection therewith such party's rights to reimbursement
pursuant to this clause (v) with respect to any such Nonrecoverable Advance,
Servicing Fees, Special Servicing Fees, Liquidation Fees or Workout Fees, as
applicable, being limited (except to the extent set forth in Section 3.05(a)) to
amounts on deposit in the Serviced Whole Loan Custodial Account that were
received in respect of the applicable Mortgage Loan (as allocable thereto
pursuant to the Mortgage Loan documents and the Serviced Whole Loan
Intercreditor Agreement) as to which such Nonrecoverable Advance, Servicing
Fees, Special Servicing Fees, Liquidation Fees or Workout Fees, as applicable,
relates;
(vi) at such time as it reimburses itself and the Serviced
Companion Loan Master Servicer (pro rata), the Special Servicer, the Trustee and
the Serviced Whole Loan Trustee (pro rata), as applicable (in reverse of such
order with respect to the Serviced Whole Loan or related REO Property), for (A)
any unreimbursed Delinquency Advance with respect to the applicable Mortgage
Loan or the applicable Serviced Companion Loan pursuant to clause (iii) above,
to pay itself and the Serviced Companion Loan Master Servicer (pro rata), or the
Trustee and the Serviced Companion Loan Trustee (pro rata), any interest accrued
and payable thereon in accordance with Section 4.03(d) and Section 3.11(c), (B)
any unreimbursed Servicing
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Advances pursuant to clause (iv) above, to pay itself, the Special Servicer or
the Trustee, as the case may be, any interest accrued and payable thereon in
accordance with Section 3.03(e) and Section 3.11(c) or (C) any Nonrecoverable
Advances pursuant to clause (v) above, to pay itself, the Special Servicer and
the Serviced Companion Loan Master Servicer (pro rata), the Trustee and the
Serviced Companion Loan Trustee, as the case may be, any interest accrued and
payable thereon;
(vii) to reimburse itself, the Special Servicer or the Trustee,
as the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Document Defect with respect to the
applicable Mortgage Loan giving rise to a repurchase obligation of the
applicable Mortgage Loan Seller under Section 6 of the applicable Mortgage Loan
Purchase Agreement, including, without limitation, any expenses arising out of
the enforcement of the repurchase obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to the Serviced Whole
Loan being limited to that portion of the Purchase Price paid for the related
Mortgage Loan that represents such expense in accordance with clauses (d) or (e)
of the definition of Purchase Price, and to reimburse the Master Servicer, the
Special Servicer or the related Serviced Companion Loan Trustee for any similar
unreimbursed expenses incurred in respect of a related Companion Loan;
(viii) in accordance with Section 2.03(e), to reimburse itself,
the Special Servicer or the Trustee, as the case may be, out of collections on
the Serviced Whole Loan and related REO Property for any unreimbursed expense
reasonably incurred by such Person in connection with the enforcement of the
applicable Mortgage Loan Seller's obligations under Section 6 of the applicable
Mortgage Loan Purchase Agreement with respect to the related Mortgage Loan, but
only to the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise and are allocable to the Mortgage Loan under the
applicable Serviced Whole Loan Intercreditor Agreement, and to reimburse the
Master Servicer, the Special Servicer or the Serviced Companion Loan Trustee for
any similar unreimbursed expenses incurred under the Securitization Agreement in
respect of a related Serviced Companion Loan;
(ix) to pay itself all Prepayment Interest Excesses on the
related Mortgage Loan not required to be used pursuant to Section 3.05(a)(xii);
(x) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (1) interest and investment income earned in
respect of amounts relating to the Serviced Whole Loan held in such Serviced
Whole Loan Custodial Account as provided in Section 3.06(b) (but only to the
extent of the Net Investment Earnings with respect to such Serviced Whole Loan
Custodial Account for any period from any Distribution Date to the immediately
succeeding Delinquency Advance Date) and (2) Penalty Charges on the Serviced
Whole Loan (except if the Serviced Whole Loan is a Specially Serviced Mortgage
Loan), but only to the extent collected from the related Mortgagor and to the
extent that all amounts then due and payable with respect to the related
Serviced Whole Loan have been paid and are not needed to pay interest on
Advances in accordance with Section 3.11; and (B) to pay the Special Servicer,
as additional servicing compensation in accordance with the second paragraph of
Section 3.11, Penalty Charges on the Serviced Whole Loan during the period it is
a Specially Serviced Loan (but only to the extent collected from the related
Mortgagor and to the
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extent that all amounts then due and payable with respect to the Specially
Serviced Loan have been paid and are not needed to pay interest on Advances, all
in accordance with Section 3.11);
(xi) to recoup any amounts deposited in such Serviced Whole Loan
Custodial Account in error;
(xii) to pay itself, the Special Servicer, the Depositor, the
Serviced Companion Loan Paying Agent or any of their respective directors,
officers, members, managers, employees and agents, as the case may be, any
amounts payable to any such Person pursuant to Section 6.03 or Section 8.17(d)
to the extent that such amounts relate to the Serviced Whole Loan;
(xiii) to pay for (A) the cost of the Opinions of Counsel
contemplated by Section 3.16(a) to the extent payable out of the Trust Fund as
they relate to the Serviced Whole Loan, (B) the cost of any Opinion of Counsel
contemplated by Section 11.01(a) or Section 11.01(c) in connection with an
amendment to this Agreement requested by the Trustee or the Master Servicer,
which amendment is in furtherance of the rights and interests of
Certificateholders and, if the Serviced Whole Loan is involved, the related
Serviced Companion Loan Holders, as a collective whole and (c) the cost of
obtaining the REO Extension contemplated by Section 3.16(a), to the extent that
such amounts relate to the Serviced Whole Loan;
(xiv) to pay out of collections on the Serviced Whole Loan and
related REO Property any and all federal, state and local taxes imposed on the
REMIC I, REMIC II, REMIC III, or any of their assets or transactions, together
with all incidental costs and expenses, in each case to the extent that none of
the Master Servicer, the Special Servicer or the Trustee is liable therefor
pursuant to Section 10.01(h) and only to the extent that such amounts relate to
the related Mortgage Loan or to any Serviced Companion Loan that is included in
a REMIC;
(xv) to reimburse the Trustee and the Serviced Companion Loan
Trustee out of collections on the Serviced Whole Loan and REO Property for
expenses incurred by and reimbursable to it by the Trust Fund, and the trust
fund relating to the Serviced Companion Loan Securities, respectively, to the
extent that such amounts relate to the related Mortgage Loan or Serviced
Companion Loan;
(xvi) to pay any Person with respect to the related Mortgage
Loan, if any, all amounts received thereon after the date of purchase of such
Mortgage Loan relating to the period after the date of purchase;
(xvii) to remit to the Trustee for deposit in the Interest
Reserve Account the amounts with respect to the related Mortgage Loan required
to be deposited in the Interest Reserve Account pursuant to Section 3.04(e);
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, to the extent that such amounts
relate to the related Mortgage Loan, any amount specifically required to be paid
to such Person at the expense of the Trust Fund under any provision of this
Agreement to which reference is not made in any other clause of this Section
3.05(e) and to pay to the Serviced Companion Loan Trustee or the depositor
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under a related Companion Loan Securitization Agreement to the extent that such
amounts related to the applicable Serviced Companion Loan, any amount
specifically required to be paid to such Person under the Serviced Companion
Loan Securitization Agreement, it being acknowledged that this clause (xviii)
shall not be construed to modify any limitation or requirement otherwise set
forth in this Agreement as to the time at which any Person is entitled to
payment or reimbursement of any amount or as to the funds from which any such
payment or reimbursement is permitted to be made; and
(xix) to clear and terminate such Serviced Whole Loan Custodial
Account at the termination of this Agreement pursuant to Section 9.01.
Any permitted withdrawals under this Section 3.05(e) with respect to
reimbursement for advances or other amounts payable to a Serviced Companion Loan
Trustee shall, if applicable, also be deemed to be a permitted withdrawal for
similar amounts owed to the fiscal agent of the Serviced Companion Loan Trustee,
if any. All withdrawals with respect to the Serviced Whole Loan shall be made
first from the related Serviced Whole Loan Custodial Account and then, from the
Certificate Account to the extent permitted by Section 3.05(a).
The Master Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer), the Serviced Companion
Loan Paying Agent, the Trustee and any related Serviced Companion Loan Trustee
from a Serviced Whole Loan Custodial Account amounts permitted to be paid to it
(or to such third party contractors) therefrom promptly upon receipt of a
certificate of a Servicing Officer of the Special Servicer or a Responsible
Officer of the Trustee, the Serviced Companion Loan Paying Agent or Serviced
Companion Loan Trustee, as the case may be, describing the item and amount to
which the Special Servicer (or any such third party contractor) or the Serviced
Companion Loan Trustee is entitled. The Master Servicer may rely conclusively on
any such certificate and shall have no duty to re-calculate the amounts stated
therein. The Special Servicer shall keep and maintain separate accounting for
each Mortgage Loan and the related Serviced Companion Loan(s) constituting a
Serviced Whole Loan (and related REO Loan) on a loan-by-loan basis for the
purpose of justifying any request for withdrawal from the related Serviced Whole
Loan Custodial Account.
In the event that the Master Servicer fails, as of 5:00 p.m. (New York
City time) on the date such remittance is required to be made, to remit to the
Trustee (in respect of the related Mortgage Loan) and the Serviced Companion
Loan Paying Agent (in respect of any related Serviced Companion Loan) any
amounts required to be so remitted hereunder by such date, the Master Servicer
shall pay to the Trustee (in respect of the Mortgage Loan) and the Serviced
Companion Loan Paying Agent (in respect of the Serviced Companion Loan), for the
account of the Trustee (in respect of the Mortgage Loan) and the Serviced
Companion Loan Paying Agent (in respect of the Serviced Companion Loan),
interest, calculated at the Prime Rate, on such amount(s) not timely remitted,
from the time such payment was required to be made (without regard to any grace
period) until such payment is received by the Trustee and the Serviced Companion
Loan Paying Agent.
(f) The Serviced Companion Loan Paying Agent shall establish and
maintain a separate Serviced Companion Loan Distribution Account for the benefit
of each Serviced Companion Loan Holder. Each Serviced Companion Loan
Distribution Account shall be
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maintained as an Eligible Account (or as a sub-account of an Eligible Account).
Funds in the Serviced Companion Loan Distribution Accounts may be invested in
Permitted Investments for the account of the Serviced Companion Loan Paying
Agent. All income and gain realized from the investment of funds deposited in
such Serviced Companion Loan Distribution Account shall be for the benefit of
the Serviced Companion Loan Paying Agent; provided that the Serviced Companion
Loan Paying Agent shall be responsible for the amount of any Net Investment Loss
(net of Net Investment Earnings) in respect of such Permitted Investments. The
Serviced Companion Loan Paying Agent shall give notice to the Master Servicer of
the location of each Serviced Companion Loan Distribution Account as of the
Closing Date and of the new location of any Serviced Companion Loan Distribution
Account prior to any change thereof.
The Master Servicer shall deliver to the Serviced Companion Loan Paying
Agent each month on or before the date set forth in Section 3.05(e)(i), for
deposit in the applicable Serviced Companion Loan Distribution Account, that
portion of the applicable Serviced Whole Loan Remittance Amount allocable to the
applicable Serviced Companion Loan Holder then on deposit in the applicable
Serviced Whole Loan Custodial Account.
On each Master Servicer Remittance Date, the Serviced Companion Loan Paying
Agent shall, based upon information provided to the Serviced Companion Loan
Paying Agent by the Master Servicer, remit to each Serviced Companion Loan
Holder on the applicable Distribution Date by wire transfer in immediately
available funds to the account of such Serviced Companion Loan Holder or an
agent therefore appearing on the Serviced Companion Loan Holder Register on the
related Record Date (or, if no such account so appears or information relating
thereto is not provided at least five Business Days prior to the related Record
Date, by check sent by first-class mail to the address of such Serviced
Companion Loan Holder or its agent appearing on the Serviced Companion Loan
Holder Register) the portion of the applicable Serviced Whole Loan Remittance
Amount allocable to such Serviced Companion Loan Holder.
The Serviced Companion Loan Paying Agent shall, upon receipt, deposit in
the applicable Serviced Companion Loan Distribution Account any and all amounts
received by the Serviced Companion Loan Paying Agent that are required by the
terms of this Agreement to be deposited therein. If, as of 3:00 p.m. (New York
City time) on any Master Servicer Remittance Date or on such other date as any
amount is required to be delivered for deposit in such Serviced Companion Loan
Distribution Account, the Master Servicer shall not have delivered to the
Serviced Companion Loan Paying Agent for deposit in the applicable Serviced
Companion Loan Distribution Account any of the amounts required to be deposited
therein, then the Serviced Companion Loan Paying Agent shall provide notice of
such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy no. (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Serviced Companion Loan Paying Agent in
writing) and by telephone at telephone no. (000) 000-0000 (or such alternative
number provided by the Master Servicer to the Serviced Companion Loan Paying
Agent in writing) as soon as possible, but in any event before 5:00 p.m. (New
York City time) on such day.
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Section 3.06 Investment of Funds in the Certificate Account, the
Distribution Account, the Excess Liquidation Proceeds Reserve Account, the
Interest Reserve Account, the REO Account and the Serviced Whole Loan Custodial
Accounts.
(a) (i) The Master Servicer may direct any depository institution
maintaining the Certificate Account, a Serviced Whole Loan Custodial Account,
any Lock-Box Account or any Cash Collateral Account to invest, (ii) the Special
Servicer may direct any depository institution maintaining the REO Account to
invest, or if it is a depository institution, may itself invest, and (iii) the
Trustee may direct the depository institution maintaining the Distribution
Account, the Excess Liquidation Proceeds Reserve Account or the Interest Reserve
Account to invest, or if it is such depository institution, may itself invest,
the funds held therein in one or more Permitted Investments bearing interest or
sold at a discount, and maturing, unless payable on demand, (A) no later than
the Business Day immediately preceding the next succeeding date on which such
funds are required to be withdrawn from such account pursuant to this Agreement,
if a Person other than the depository institution maintaining such account is
the obligor thereon, and (B) no later than the next succeeding date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement, if the depository institution maintaining such account is the obligor
thereon. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such).
The Master Servicer (with respect to Permitted Investments of amounts in
the Certificate Account, the Serviced Whole Loan Custodial Accounts, any
Lock-Box Account and any Cash Collateral Account) and the Special Servicer (with
respect to Permitted Investments of amounts in the REO Account) on behalf of the
Trustee, and the Trustee (with respect to Permitted Investments of amounts in
the Distribution Account, the Excess Liquidation Proceeds Reserve Account and
the Interest Reserve Account), shall (and Trustee hereby designates the Master
Servicer and the Special Servicer, as applicable, as the Person that shall): (i)
be the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security." For purposes
of this Section 3.06(a), the terms "entitlement holder," "security entitlement,"
"control," "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment by the Master Servicer or the Special
Servicer shall constitute "control" by a Person designated by, and acting on
behalf of the Trustee for purposes of Revised Article 8 (1994 Revision) of the
UCC.
In the event amounts on deposit in an Investment Account are at any time
invested in a Permitted Investment payable on demand, the Master Servicer (in
the case of the Certificate Account, any Serviced Whole Loan Custodial Account,
any Lock-Box Account or any Cash Collateral Account), the Special Servicer (in
the case of the REO Account) and the Trustee (in the case of the Distribution
Account, the Excess Liquidation Proceeds Reserve Account and the Interest
Reserve Account) shall: (i) consistent with any notice required to be given
thereunder, demand that payment be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser of
(A) all amounts then payable thereunder and (B) the amount required to be
withdrawn on such date; and (ii) demand payment of all amounts due thereunder
promptly upon determination by the Master Servicer, the Special Servicer or the
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Trustee, as the case may be, that such Permitted Investment would not constitute
a Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds
in the Certificate Account or any Serviced Whole Loan Custodial Account, and to
the extent the Master Servicer directs the investment of funds in any Lock-Box
Account or any Cash Collateral Account, interest and investment income realized
on funds deposited in each such Investment Account, to the extent of the Net
Investment Earnings, if any, with respect to such account for each Collection
Period, shall be for the sole and exclusive benefit of the Master Servicer and
shall be subject to its withdrawal, or withdrawal at its direction, in
accordance with Section 3.05(a). Interest and investment income realized on
funds deposited in the Distribution Account, the Excess Liquidation Proceeds
Reserve Account and the Interest Reserve Account, to the extent of Net
Investment Earnings, if any, with respect to such account for each Collection
Period, shall be for the sole and exclusive benefit of the Trustee and shall be
subject to its withdrawal in accordance with Section 3.05(b) or (c), as the case
may be. Whether or not the Special Servicer directs the investment of funds in
the REO Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in the Certificate Account, any Serviced
Whole Loan Custodial Account, and to the extent the Master Servicer has
discretion to direct the investment of funds in any Lock-Box Account or any Cash
Collateral Account for its sole and exclusive benefit, the Master Servicer shall
deposit therein, no later than the end of the Collection Period during which
such loss was incurred, without right of reimbursement, the amount of the Net
Investment Loss, if any, with respect to such account for such Collection
Period. If any loss shall be incurred in respect of any Permitted Investment on
deposit in the Distribution Account, the Excess Liquidation Proceeds Reserve
Account or the Interest Reserve Account, the Trustee shall immediately deposit
therein, without right of reimbursement, the amount of the Net Investment Loss,
if any, with respect to such account. If any loss shall be incurred in respect
of any Permitted Investment on deposit in the REO Account, the Special Servicer
shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the end of the Collection Period during which such
loss was incurred, the amount of the Net Investment Loss, if any, for such
Collection Period.
(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
Serviced Whole Loans (other than Specially Serviced Mortgage Loans, the Xxxx
Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan)) and the
Special Servicer (solely in the
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case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause
each Mortgagor to maintain in respect of the related Mortgaged Property all
insurance coverage as is required under the related Mortgage (to the extent such
insurance coverage is available at commercially reasonable terms as determined
by the Master Servicer or Special Servicer, as applicable, provided that any
such determination that such insurance is not available at commercially
reasonable terms shall be consented to by the Majority Certificateholder of the
Controlling Class); provided, that if any Mortgage permits the holder thereof to
dictate to the Mortgagor the insurance coverage to be maintained on such
Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate,
shall impose such insurance requirements as are consistent with the Servicing
Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer
(at the direction of the Special Servicer in the case of a Specially Serviced
Mortgage Loan or REO Loan) shall (to the extent available at commercially
reasonable terms as determined by the Master Servicer, which shall be entitled
to rely on an opinion of counsel or insurance consultants in making such
determination, provided that, subject to the Servicing Standard, such final
determination shall be consented to by the Majority Certificateholder of the
Controlling Class) obtain such insurance (which may be through a master or
single interest policy) and the cost (including any deductible relating to such
insurance and any out of pocket cost incurred by the Master Servicer in
obtaining advice of counsel or insurance consultants) of such insurance (or in
the case of a master or single interest policy, the incremental cost (including
any deductible relating to such insurance) of such insurance relating to the
specific Mortgaged Property), shall be a Servicing Advance and shall be
recoverable by the Master Servicer pursuant to Section 3.05(a) or 3.05 (e). If
the Master Servicer or Special Servicer, as the case may be, determines in
accordance with the preceding provisions of this paragraph that the applicable
insurance is not available at commercially reasonable terms, the Master Servicer
or the Special Servicer, as the case may be, shall notify the Majority
Certificateholder of the Controlling Class and the Rating Agencies of such
determination. If at any time a Mortgaged Property related to a Mortgage Loan
serviced hereunder is located in an area identified in the Flood Hazard Boundary
Map or Flood Insurance Rate Map issued by the Federal Emergency Management
Agency as having special flood hazards or it becomes located in such area by
virtue of remapping conducted by such agency (and flood insurance has been made
available), the Master Servicer (or in the case of a Specially Serviced Mortgage
Loan, the Special Servicer) shall, if and to the extent that the Mortgage Loan
or Serviced Whole 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 Serviced Whole Loan. With respect to any Mortgage Loan (other than the Xxxx
Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) or any
Serviced Whole Loan, if (i) the Mortgagor is required by the terms of the
Mortgage Loan or Serviced Whole 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
Serviced Whole Loan permit the mortgagee to require the Mortgagor to obtain such
insurance, the Master Servicer (or in the case of any 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
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Master Servicer (or in the case of any Specially Serviced Mortgage Loan, the
Special Servicer) shall obtain such insurance, the cost of which shall be a
Servicing Advance and shall be recoverable by the Master Servicer pursuant to
Section 3.05(a) or 3.05 (e); provided, that the Master Servicer or Special
Servicer shall not be required to incur any such cost if such Advance would
constitute a Nonrecoverable Servicing Advance; provided, further, if the Master
Servicer or Special Servicer, as applicable, shall determine that the payment of
such amount is (i) necessary to preserve the related Mortgaged Property and (ii)
would be in the best interest of the Certificateholders (or with respect to any
Serviced Whole Loan, the Certificateholders and the related Serviced Companion
Loan Holders), then the Master Servicer shall make such payment from amounts in
the Certificate Account or, with respect to any Serviced Whole Loan, from the
related Serviced Whole Loan Custodial Account. Subject to Section 3.17(a), the
Special Servicer shall also use reasonable efforts to cause to be maintained for
each REO Property (to the extent available at commercially reasonable terms) no
less insurance coverage than was previously required of the Mortgagor under the
related Mortgage or as is consistent with the Servicing Standard. All such
insurance policies shall contain a "standard" mortgagee clause, with loss
payable to the Master Servicer (in the case of Mortgaged Properties) or the
Special Servicer (in the case of REO Properties) on behalf of the Trustee, and
shall be issued by an insurer authorized under applicable law to issue such
insurance. Any amounts collected by the Master Servicer or the Special Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case in accordance with applicable
law, the terms of the related Mortgage Loan or Serviced Whole Loan documents and
the Servicing Standard) shall be deposited in the Certificate Account or, with
respect to the any Serviced Whole Loan, deposited in the related Serviced Whole
Loan Custodial Account, subject to withdrawal pursuant to Section 3.05(a) and
Section 3.05(e), respectively, in the case of amounts received in respect of a
Mortgage Loan or Serviced Companion Loan, or in the REO Account, subject to
withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an REO Property. Any cost incurred by the Master Servicer or the
Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the outstanding principal balance of the related
Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such
Mortgage Loan or Serviced Whole Loan so permit, but shall be recoverable by the
Master Servicer as a Servicing Advance pursuant to Section 3.05(a) or Section
3.05(e), as applicable.
(b) (i) If the Master Servicer or the Special Servicer obtains and
maintains a blanket policy insuring against hazard losses on all of the
Mortgaged Properties and/or REO Properties for which it is responsible to cause
the maintenance of insurance hereunder, then, to the extent such policy provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer, as the case may be, shall conclusively be
deemed to have satisfied its obligation to cause hazard insurance to be
maintained on such Mortgaged Properties and/or REO Properties. Such policy may
contain a deductible clause (not in excess of a customary amount), in which case
the Master Servicer or the Special Servicer, as appropriate, shall, if there
shall not have been maintained on a Mortgaged Property or an REO Property a
hazard insurance policy complying with the requirements of Section 3.07(a), and
there shall have been one or more losses which would have been covered by such
policy, promptly deposit into the Certificate Account or, with respect to any
Serviced Whole Loan, deposited in the related Serviced Whole Loan Custodial
Account (or into the Servicing Account
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if insurance proceeds are to be applied to the repair or restoration of the
applicable Mortgaged Property or disbursed to the related Mortgagor) from its
own funds the amount not otherwise payable under the blanket policy because of
such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan, or, in the
absence of any such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard. The Master Servicer and the Special
Servicer each agrees to prepare and present, on behalf of itself, the Trustee
and the Certificateholders (and with respect to the Serviced Whole Loans, the
related Serviced Companion Loan Holders), claims under any such blanket policy
maintained by it in a timely fashion in accordance with the terms of such
policy.
(ii) If the Master Servicer or the Special Servicer, as
applicable, causes any Mortgaged Property or REO Property to be covered by a
master force placed insurance policy, which provides protection equivalent to
the individual policies otherwise required, the Master Servicer or Special
Servicer shall conclusively be deemed to have satisfied its respective
obligations to cause hazard insurance to be maintained on such Mortgaged
Properties and/or REO Properties. Such policy may contain a deductible clause,
in which case the Master Servicer or the Special Servicer, as applicable, shall
in the event that (x) there shall not have been maintained on the related
Mortgaged Property or REO Property a policy otherwise complying with the
provisions of Section 3.07(a), and (y) there shall have been one or more losses
which would have been covered by such a policy had it been maintained,
immediately deposit into the Certificate Account or, with respect to any
Serviced Whole Loan, deposit into the related Serviced Whole Loan Custodial
Account (or into the Servicing Account if insurance proceeds are to be applied
to the repair or restoration of the applicable Mortgaged Property or disbursed
to the related Mortgagor) from its own funds the amount not otherwise payable
under such policy because of such deductible to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard. The
Master Servicer and the Special Servicer each agrees to prepare and present, on
behalf of itself, the Trustee and the Certificateholders (and with respect any
Serviced Whole Loan, the related Serviced Companion Loan Holders), claims under
any such master force placed insurance policy maintained by it in a timely
fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall obtain
and maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
insurance policy covering its officers and employees and other persons acting on
behalf of it in connection with its activities under this Agreement and naming
the Trustee as an additional insured. The amount of coverage shall be at least
equal to the coverage that would be required by FNMA or FHLMC, whichever is
greater, with respect to the Master Servicer or Special Servicer, as the case
may be, if the Master Servicer or Special Servicer, as the case may be, were
servicing and administering the Mortgage Loans, Serviced Companion Loans and/or
the REO Properties for which it is responsible hereunder for FNMA or FHLMC.
Coverage of the Master Servicer or the Special Servicer under a policy or bond
obtained by an Affiliate of such Person and providing the coverage required by
this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c).
(d) All insurance coverage required to be maintained by the Master
Servicer or Special Servicer, as applicable, under this Section 3.07 shall be
obtained from Qualified
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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) "A" by Fitch; provided, however, that the requirements
of clauses (x) or (y) shall not be applicable with respect to Standard & Poor's
or Fitch, 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 (other than the Xxxx Xxxxxxx Tower
Mortgage Loan and the Boulevard Mall Mortgage Loan) and each Serviced 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 Serviced 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 Serviced Companion Loan
may not be assumed without the consent of the mortgagee in connection with any
such sale or other transfer,
then, subject to Section 3.28, the Special Servicer, on behalf of the Trustee as
the mortgagee of record, shall exercise (or, subject to Section 3.21(a)(iv),
waive its right to exercise) any right it may have with respect to such Mortgage
Loan or Serviced 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 by, in accordance with the preceding sentence, the
Mortgage Loan or Serviced 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 or
Serviced Companion Loan for purposes of the REMIC Provisions). The Special
Servicer shall promptly notify the Trustee of any such agreement and forward the
original thereof to the Trustee, with a copy to the Master Servicer, 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) Standard & Poor's, in the case of any
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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, or (B) Fitch (in the case of any Mortgage Loan
that is, or any Mortgage Loan that is part of a Related Borrower Group that is,
one of the ten largest Mortgage Loan concentrations (based on Stated Principal
Balance) in 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 Standard & Poor's (in the case of any Mortgage Loan described
in clause (A) above) and/or Fitch (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 (other than the Xxxx Xxxxxxx Tower
Mortgage Loan and the Boulevard Mall Mortgage Loan) or Serviced 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 Serviced Companion Loan
shall (or may at the mortgagee's option) become due and payable upon the
creation of any additional lien or other encumbrance on the related Mortgaged
Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged Property,
then, subject to Section 3.28, 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 Serviced 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) Standard & Poor's (in
all cases) and (B) Fitch (in the case of any Mortgage Loan that is, or any
Mortgage Loan that is part of a Related Borrower Group that is, one of the ten
largest Mortgage Loan concentrations (based on Stated Principal Balance) in the
Mortgage Pool) 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 Standard & Poor's (in
all cases) prior to waiving any such right and/or Fitch (in the case of any
Mortgage Loan described in clause (B) above).
(c) Notwithstanding the foregoing, the Master Servicer shall not waive
any rights under a "due-on-sale" or "due-on-encumbrance" clause with respect to
any Mortgage Loan or Serviced Companion Loan unless: (i) the Master Servicer
shall have notified the Special Servicer of such waiver; (ii) the Master
Servicer shall have submitted the Master Servicer's written recommendation and
analysis to the Special Servicer; (iii) the Master Servicer shall have submitted
to the Special Servicer the documents within the possession of the Master
Servicer that are reasonably requested by the Special Servicer; (iv) the Special
Servicer shall have approved
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such waiver, notified the Majority Certificateholder of the Controlling Class of
the request for the waiver and of the Master Servicer's and its own approval and
submitted to the Majority Certificateholder of the Controlling Class each of the
documents submitted to the Special Servicer by the Master Servicer; and (v) the
Majority Certificateholder of the Controlling Class shall have informed the
Special Servicer that it has approved such waiver; provided, however, that the
Special Servicer shall advise the Majority Certificateholder of the Controlling
Class of its approval (if any) of such waiver promptly upon (but in no case to
exceed ten Business Days) its receipt of such notice, recommendations, analysis,
and reasonably requested documents from the Master Servicer; provided, further,
that if the Majority Certificateholder of the Controlling Class does not reject
such recommendation within five Business Days of its receipt of the Special
Servicer's recommendation and any additional documents and information that the
Majority Certificateholder of the Controlling Class may reasonably request, then
the waiver shall be deemed approved. Neither the Master Servicer nor the Special
Servicer shall approve such waiver unless the Mortgagor shall agree to pay all
fees and costs associated with such waiver (unless such condition shall have
been waived by the Majority Certificateholder of the Controlling Class or the
related Mortgage Loan or Serviced Companion Loan Documents specifically preclude
this requirement).
(d) With respect to any Mortgage Loan (other than the Xxxx Xxxxxxx
Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) or Serviced 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 documents, permit (or, if the terms of such Mortgage
Loan or Serviced Companion 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
Serviced Companion Loan;
(iv) The Mortgagor shall have delivered a security agreement
granting the Trustee (on behalf of the Trust Fund and, with respect to any
Serviced Companion Loan, the related Serviced Companion Loan Holder(s)) a first
priority security interest in the Defeasance Collateral;
(v) The Master Servicer shall have received an Opinion of Counsel
from the related Mortgagor (which shall be an expense of the related Mortgagor)
to the effect that the Trustee (on behalf of the Trust Fund and, with respect to
any Serviced Companion Loan,
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the related Serviced Companion Loan Holder(s)) has a first priority security
interest in the Defeasance Collateral and that the assignment thereof is valid
and enforceable;
(vi) The Master Servicer shall have obtained at the related
Mortgagor's expense a certificate from an Independent certified public
accountant certifying that the Defeasance Collateral complies with the
requirements of the related Mortgage Note;
(vii) The Master Servicer shall have obtained an Opinion of
Counsel from the related Mortgagor to the effect that such release will not
cause any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at any
time that any Certificates are outstanding or cause a tax to be imposed on the
Trust Fund under the REMIC Provisions;
(viii) The related borrower shall have provided evidence to the
Master Servicer demonstrating that the lien of the related Mortgage is being
released to facilitate the disposition of the Mortgaged Property or another
customary commercial transaction, and not as part of an arrangement to
collateralize the Certificates issued by the related REMIC with obligations that
are not real estate mortgages;
(ix) If required by the terms of such Mortgage Loan, the Master
Servicer shall have received Rating Agency Confirmation from each of Fitch and
Standard & Poor's with respect to the exercise of such Defeasance Option;
provided, (A) that if the Master Servicer provides Standard & Poor's with the
written certification substantially in the form of Exhibit I attached hereto,
the Master Servicer shall be required to have received such Rating Agency
Confirmation from Standard & Poor's only with respect to any Mortgage Loan that
has an outstanding principal balance in excess of the lesser of (1) $5,000,000
or (2) 1% of the then outstanding principal balance of the Mortgage Pool and (B)
the Master Servicer shall be required to have received such Rating Agency
Confirmation from Fitch with respect to the exercise of such Defeasance Option
only as to any Mortgage Loan that is, or any Mortgage Loan that is part of a
Related Borrower Group that is, one of the ten largest Mortgage Loan
concentrations (based on Stated Principal Balance) in the Mortgage Pool; and
(x) if the Defeasance Option is being exercised to release less
than all of the Mortgaged Properties securing either a Cross-Collateralized
Mortgage Loan or a Mortgage Loan or Serviced Companion 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 or Serviced Companion Loan in connection with the exercise of such
Defeasance Option.
(e) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan or Serviced 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.
(f) Except as otherwise permitted by Section 3.21, neither the Master
Servicer nor the Special Servicer shall agree to modify, waive or amend any term
of any Mortgage Loan
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or Serviced Companion Loan in connection with the taking of, or the failure to
take, any action pursuant to this Section 3.08.
(g) In the event that the Master Servicer receives a request from any
Mortgagor for consent to (i) the transfer of a Mortgaged Property or assumption
of a Mortgage Loan or Serviced 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 (other
than the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan)
or any Serviced 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 such Mortgage Loan or Serviced Companion
Loan) as are consistent with the Servicing Standard. If, in the Special
Servicer's judgment, such corrective action has been unsuccessful, no
satisfactory arrangement can be made for collection of delinquent payments, and
the Defaulted Mortgage Loan has not been released from the Trust Fund pursuant
to any provision hereof, then the Special Servicer shall, subject to subsections
(b) through (d) of this Section 3.09, exercise reasonable efforts, consistent
with the Servicing Standard, to foreclose upon or otherwise comparably convert
(which may include an REO Acquisition) the ownership of property securing such
Mortgage Loan or Serviced Companion Loan. The foregoing is subject to the
provision that, in any case in which a Mortgaged Property shall have suffered
damage from an Uninsured Cause, the Master Servicer and the Special Servicer
shall have the right but not the obligation to expend its own funds toward the
restoration of such property if it shall determine in its reasonable discretion
(i) that such restoration will increase the net proceeds of liquidation of such
Mortgaged Property to Certificateholders after reimbursement to itself for such
expenses, and (ii) that such expenses will be recoverable by the Master Servicer
or Special Servicer, as the case may be, out of the proceeds of liquidation of
such Mortgaged Property, as contemplated in Sections 3.05(a) and 3.05(e), as
applicable. The Master Servicer shall advance all other costs and expenses
incurred by the Special Servicer in any such proceedings, subject to its being
entitled to reimbursement therefor as a Servicing Advance as provided in
Sections 3.05(a) and 3.05(e), and further subject to the Special Servicer being
required to pay out of the related Liquidation Proceeds any Liquidation Expenses
incurred in respect of any Mortgage Loan or Serviced Companion Loan, which
Liquidation Expenses were outstanding at the time such proceeds are received.
When applicable state law permits the Special Servicer to select between
judicial and non-judicial foreclosure in respect of any Mortgaged Property, the
Special Servicer shall make such selection in a manner consistent with the
Servicing Standard. Nothing contained in this Section 3.09 shall be construed so
as to require the Special Servicer, on behalf of the Trust Fund, to make a bid
on any Mortgaged Property at a foreclosure sale or similar proceeding that is
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in excess of the fair market value of such property, as determined by the
Special Servicer in its sole judgment taking into account the factors described
in Section 3.19 and the results of any Appraisal obtained pursuant to this
Agreement, all such bids to be made in a manner consistent with the Servicing
Standard. If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Defaulted Mortgage Loan (other than the Xxxx
Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan), whether for
purposes of bidding at foreclosure or otherwise, the Master Servicer or the
Special Servicer, as the case may be, is authorized to have an Appraisal
performed with respect to such property (the cost of which Appraisal shall be
covered by, and reimbursable as, an Additional Trust Fund Expense).
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 (with the exception of cash or cash equivalents
pledged as collateral for a Mortgage Loan or Serviced Companion Loan) unless
either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which may be withdrawn from the Certificate Account or the
related Serviced Whole Loan Custodial Account, as applicable, pursuant to
Sections 3.05(a) and 3.05(e), as applicable) to the effect that the holding of
such personal property by the Trust Fund will not (subject to Section 10.01(f))
cause the imposition of a tax on the Trust Fund under the REMIC Provisions or
cause any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at any
time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09, the
Special Servicer shall not, on behalf of the Trustee, initiate foreclosure
proceedings, obtain title to a Mortgaged Property in lieu of foreclosure or
otherwise, have a receiver of rents appointed with respect to any Mortgaged
Property, or take any other action with respect to any Mortgaged Property, if,
as a result of any such action, the Trustee, on behalf of the Certificateholders
or, with respect to any Serviced Whole Loan, on behalf of the Certificateholders
and the related Serviced Companion Loan Holders would be considered to hold
title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee) the Special Servicer has previously received an
Environmental Assessment in respect of such Mortgaged Property prepared within
the twelve months preceding such determination by a Person who regularly
conducts Environmental Assessments and the Special Servicer, based solely (as to
environmental matters and related costs) on the information set forth in such
Environmental Assessment, determines that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that acquiring such Mortgaged
Property and taking such actions as are necessary to bring the Mortgaged
Property in compliance therewith is reasonably likely to produce a greater
recovery to Certificateholders (and if the Mortgaged Property is related to a
Serviced Whole Loan, the Certificateholders and the related Serviced
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Companion Loan Holders) on a present value basis than not acquiring such
Mortgaged Property and not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of Hazardous
Materials for which investigations, testing, monitoring, containment, clean-up
or remediation could be required under any applicable environmental laws and
regulations or, if such circumstances or conditions are present for which any
such action could be required, that acquiring such Mortgaged Property and taking
such actions with respect to such Mortgaged Property is reasonably likely to
produce a greater recovery to Certificateholders (and if the Mortgaged Property
is related to a Serviced Whole Loan, the Certificateholders and the related
Serviced Companion Loan Holders) on a present value basis than not acquiring
such Mortgaged Property and not taking such actions.
The cost of any such Environmental Assessment, as well as the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding sentence, may be withdrawn from the Certificate
Account or, with respect to any Serviced Whole Loan, from the related Serviced
Whole Loan Custodial Account, by the Master Servicer at the direction of the
Special Servicer pursuant to Sections 3.05(a) and 3.05(e), as applicable; and if
any such Environmental Assessment so warrants, the Special Servicer shall, at
the expense of the Trust Fund, perform such additional environmental testing as
are consistent with the Servicing Standard to determine whether the conditions
described in clauses (i) and (ii) of the preceding sentence have been satisfied.
(d) If the environmental testing contemplated by subsection (c) above
establishes that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a Defaulted Mortgage Loan serviced hereunder, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund and, with respect to any Serviced Whole Loan, in the best
economic interest of the Trust Fund and the related Serviced Companion Loan
Holder(s) (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 to the Trustee, who shall, upon
request, forward such reports to the Certificateholders and, with respect to the
Serviced Whole Loans, to the related Serviced Companion Loan Holders) regarding
any actions taken by the Special Servicer with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan serviced hereunder as to which the
environmental testing contemplated in subsection (c) above has revealed that
either of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earliest to occur of
satisfaction of both such conditions, removal of the related Mortgage Loan from
the Trust Fund and release of the lien of the related Mortgage on such Mortgaged
Property.
(f) The Special Servicer shall report to the Internal Revenue Service
and the related Mortgagor, in the manner required by applicable law, the
information required to be reported regarding any Mortgaged Property which is
abandoned or foreclosed, information
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returns with respect to the receipt of mortgage interests received in a trade or
business and the information returns relating to cancellation of indebtedness
income with respect to any Mortgaged Property required by Sections 6050J, 6050H
and 6050P, respectively, of the Code. Such reports shall be in form and
substance sufficient to meet the reporting requirements imposed by Sections
6050J, 6050H and 6050P of the Code. The Special Servicer shall deliver a copy of
any such report upon request to the Trustee.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment in respect of a Mortgage Loan or
Serviced Companion Loan serviced hereunder if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan or Serviced Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records of each Final
Recovery Determination in respect of a Defaulted Mortgage Loan or REO Property
serviced hereunder and the basis thereof. Each Final Recovery Determination
shall be evidenced by an Officer's Certificate delivered to the Trustee no later
than the 10th Business Day following such Final Recovery Determination.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan or Serviced
Companion Loan, or the receipt by the Master Servicer or the Special Servicer of
a notification that payment in full shall be escrowed in a manner customary for
such purposes, the Master Servicer or the Special Servicer, as the case may be,
will immediately notify the Trustee (and, with respect to any Serviced Whole
Loan, the related Serviced Companion Loan Holder(s)) and request delivery of the
related Mortgage File. Any such notice and request shall be in the form of a
Request for Release signed by a Servicing Officer and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited into the Certificate Account
pursuant to Section 3.04(a) or, with respect to a Serviced Whole Loan, into the
related Serviced Whole Loan Custodial Account pursuant to Section 3.04(e), as
applicable, 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, the related Mortgage File (and, in the case of a
Serviced Companion Loan, the Trustee shall direct the related Serviced Companion
Loan Holder to release the Mortgage Note for such Serviced Companion Loan) to
the Master Servicer or the Special Servicer, whichever requested it. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate Account or, with respect to
a Serviced Whole Loan, to the related Serviced Whole Loan Custodial Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan or Serviced Companion Loan, the Master Servicer or the
Special Servicer may deliver to the Trustee a Request for Release signed by a
Servicing Officer thereof. Upon receipt of the foregoing, the Trustee shall
deliver or cause the related Custodian to deliver the Mortgage File or any
document therein to the Master Servicer or the Special Servicer, as the case may
be.
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Upon return of such Mortgage File or such document to the Trustee or the related
Custodian, or the delivery to the Trustee of a certificate of a Servicing
Officer stating that such Mortgage Loan or Serviced 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 Certificate Account
pursuant to Section 3.04(a) or, with respect to a Serviced Whole Loan, into the
related Serviced Whole Loan Custodial Account pursuant to Section 3.04(e), as
applicable, have been or will be so deposited, or that such Mortgage Loan has
become an REO Property, the Request for Release shall be released by the Trustee
to the Master Servicer or the Special Servicer, as applicable.
(c) Within three Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. The Special
Servicer shall be responsible for the preparation of all such documents and
pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
Section 3.11 Servicing Compensation; Nonrecoverable Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to receive the Servicing Fee with respect to each Mortgage
Loan, each Serviced Companion Loan and each REO Loan. As to each Mortgage Loan,
each Serviced 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 Serviced Companion Loan or deemed to be due
on such REO Loan is computed. The Servicing Fee with respect to any Mortgage
Loan, any Serviced 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, each Serviced Companion Loan, REO Revenues allocable as interest on each
REO Loan and the interest portion of Delinquency Advances on such Mortgage Loan,
Serviced Companion Loan and REO Loan. The Master Servicer shall be entitled to
recover unpaid Servicing Fees in respect of any Mortgage Loan, any Serviced
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). 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
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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 (other than the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall
Mortgage Loan) or a Serviced Companion Loan that is not a Specially Serviced
Mortgage Loan, is not required to be deposited in the Certificate Account or,
with respect to any Serviced Whole Loan, is not required to be deposited in the
related Serviced Whole Loan Custodial Account and, to the extent not required to
be paid to the Special Servicer pursuant to Section 3.11(d), may be retained by
the Master Servicer. The Master Servicer shall also be entitled to additional
servicing compensation in the form of (i) any Prepayment Interest Excesses,
Balloon Payment Interest Excesses, and further to the extent received on
Mortgage Loans or Serviced Companion Loans other than Specially Serviced
Mortgage Loans, any Penalty Charges not allocable to pay Advance Interest
collected on the Mortgage Loans or Serviced Companion Loans; (ii) interest or
other income earned on deposits in the Investment Accounts (other than the REO
Account), in accordance with Section 3.06(b) (but only to the extent of the Net
Investment Earnings, if any, with respect to each such Investment Account for
each Collection Period), and (iii) to the extent not required to be paid to any
Mortgagor under applicable law or under the related Mortgage, any interest or
other income earned on deposits in the Servicing Accounts and Reserve Accounts
maintained thereby. The Master Servicer shall be required to pay out of its own
funds all overhead and general and administrative expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any Sub-Servicers retained
by it and the premiums for any blanket policy insuring against hazard losses
pursuant to Section 3.07(b)), if and to the extent such expenses are not payable
directly out of the Certificate Account, and the Master Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and each such REO Loan, the Special Servicing Fee shall
accrue from time to time at the Special Servicing Fee Rate on the same basis and
the same principal amount respecting which any related interest payment due on
such Specially Serviced Mortgage Loan or deemed to be due on such REO Loan is
computed. The Special Servicing Fee with respect to each Specially Serviced
Mortgage Loan and each REO Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof. As to each Specially Serviced
Mortgage Loan and each REO Loan, earned but unpaid Special Servicing Fees shall
be payable monthly out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Certificate Account pursuant to Section 3.05(a);
provided, with respect to any Serviced Whole Loan, earned but unpaid Special
Servicing Fees shall be payable monthly out of general collections on the
applicable Serviced Whole Loan or related REO Property on deposit in the related
Serviced Whole Loan Custodial Account pursuant to Section 3.05(e).
As further compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Workout Fee with respect to each Corrected
Mortgage Loan. As to each Corrected Mortgage Loan, the Workout Fee shall be
payable from, and shall be calculated by application of the Workout Fee Rate to,
each collection of interest and principal received on such Corrected Mortgage
Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
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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 Serviced Companion Loan, as the case may be,
again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated
or resigns in accordance with Section 6.04, it shall retain the right to receive
any and all Workout Fees payable in respect of (i) any Mortgage Loan or Serviced
Companion Loan that became a Corrected Mortgage Loan during the period that it
acted as Special Servicer and were still such at the time of such termination or
resignation and (ii) any Specially Serviced Mortgage Loan for which the Special
Servicer has resolved the circumstances and/or conditions causing any such
Mortgage Loan or Serviced Companion Loan to be a Specially Serviced Mortgage
Loan such that the related Mortgagor has made at least one timely Monthly
Payment as of the date of such termination or resignation and such Mortgage Loan
or Serviced Companion Loan otherwise meets the requirements of a Corrected
Mortgage Loan, with the Workout Fee with respect to such Mortgage Loan or
Serviced Companion Loan payable only after such requirements have been met
(including the requirement that three payments be made) (and any successor
Special Servicer shall not be entitled to any portion of such Workout Fees), in
each case until the Workout Fee for any such loan ceases to be payable in
accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special Servicer
shall also be entitled to receive a Liquidation Fee with respect to each
Specially Serviced Mortgage Loan or REO Property as to which it receives any
full or discounted payoff or any Liquidation Proceeds (other than in connection
with the purchase of any such Specially Serviced Mortgage Loan or REO Property
by the Majority Certificateholder of the Controlling Class, the Special Servicer
or a Mortgage Loan Seller pursuant to Section 3.18 or by the Master Servicer,
the Majority Certificateholder of the Controlling Class or the Depositor
pursuant to Section 9.01 or by a Serviced Companion Loan Holder pursuant to the
related Serviced Whole Loan Intercreditor Agreement). As to each such Specially
Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable
from, and shall be calculated by application of the Liquidation Fee Rate to,
such full or discounted payoff and/or such Liquidation Proceeds. No Liquidation
Fee will be payable with respect to any Specially Serviced Mortgage Loan solely
by virtue of such Mortgage Loan or Serviced Companion Loan becoming a Corrected
Mortgage Loan. Notwithstanding anything herein to the contrary, no Liquidation
Fee will be payable from, or based upon the receipt of, Liquidation Proceeds
collected as a result of any purchase of a Specially Serviced Mortgage Loan or
REO Property described in the parenthetical to the first sentence of this
paragraph; provided, however, that if any such Liquidation Proceeds are received
with respect to any Corrected Mortgage Loan, and the Special Servicer is
properly entitled to a Workout Fee therefrom, such Workout Fee will be payable
based on and from the portion of such Liquidation Proceeds that constitute
principal and/or interest.
Notwithstanding anything to the contrary herein, a Liquidation Fee and a
Workout Fee relating to the same Mortgage Loan or Serviced Companion Loan shall
not be paid from the same proceeds on or with respect to such Mortgage Loan or
Serviced Companion Loan.
Subject to the Special Servicer's right to receive the Special Servicing
Fee, the Workout Fee and/or the Liquidation Fee may not be transferred in whole
or in part except in connection
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with the transfer of all of the Special Servicer's responsibilities and
obligations under this Agreement.
(d) Additional servicing compensation in the form of (i) all
assumption fees, modification fees and earnout fees received on or with respect
to Specially Serviced Mortgage Loans and (ii) fifty percent (50%) of all
assumption fees, modification fees and earnout fees received on or with respect
to any Mortgage Loan (other than the Xxxx Xxxxxxx Tower Mortgage Loan and the
Boulevard Mall Mortgage Loan) or Serviced Companion Loans that is not a
Specially Serviced Mortgage Loan shall be promptly paid by the Master Servicer
to the Special Servicer and shall not be required to be deposited in the
Certificate Account pursuant to Section 3.04(a) or, with respect to any Serviced
Whole Loan, in the related Serviced Whole Loan Custodial Account pursuant to
Section 3.04(e). Additional servicing compensation in the form of assumption
fees, earnout fees and modification fees that the Master Servicer is entitled to
and that are collected by the Special Servicer, shall be paid promptly to the
Master Servicer by the Special Servicer. The Special Servicer shall also be
entitled to additional servicing compensation in the form of: (i) to the extent
not required to be paid to any Mortgagor under applicable law, any interest or
other income earned on deposits in the REO Account, any Servicing Accounts and
any Reserve Accounts maintained thereby; and (ii) to the extent not required to
be paid to the Master Servicer as additional servicing compensation pursuant to
Section 3.11(b), any Penalty Charges (to the extent not allocable to pay Advance
Interest) collected on the Specially Serviced Mortgage Loans and REO Loans. The
Special Servicer shall be required to pay out of its own funds all overhead and
general and administrative expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, the premiums for
any blanket policy obtained by it insuring against hazard losses pursuant to
Section 3.07(b)) and, if and to the extent such expenses are not payable
directly out of the Certificate Account, any Serviced Whole Loan Custodial
Account, the REO Account or any Serviced Whole Loan REO Account, the Special
Servicer shall not be entitled to reimbursement except as expressly provided in
this Agreement.
(e) If the Master Servicer is required under this Agreement to make a
Servicing Advance, but does not make such Servicing Advance within 15 days after
such Advance is required to be made, the Trustee shall, to the extent a
Responsible Officer of the Trustee has actual knowledge of such failure by the
Master Servicer to make such Advance (subject to Section 3.11(h) below), make
such Advance.
(f) (i) With respect to each Mortgage Loan (other than the Xxxx
Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan), 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
Servicing Advance made thereby with respect to such Mortgage Loan or related
Mortgaged Property for so long as such Servicing Advance is outstanding,
payable, first, out of Penalty Charges received on the Mortgage Loan or REO Loan
as to which such Servicing Advance was made and, then, once such Servicing
Advance has been reimbursed pursuant to Section 3.05, out of general collections
on the Mortgage Loans and REO Properties and (ii) with respect to each Serviced
Whole Loan, 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 Servicing Advance made thereby with respect to such
Serviced Whole Loan or related Mortgaged Property for so long as such Servicing
Advance is
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outstanding, payable, first, out of Penalty Charges received on such Serviced
Whole Loan or the related REO Loan, second, once such Servicing Advance has been
reimbursed pursuant to Section 3.05, out of collections on the Serviced Whole
Loan or related REO Property, and third, once such Servicing Advance has been
reimbursed pursuant to Section 3.05, out of general collections on the Mortgage
Loans and REO Properties;
(g) On each Master Servicer Remittance Date, the Master Servicer shall
pay from the related Servicing Fee each Broker Strip Amount by wire transfer in
immediately available funds to an account designated by the Strip Holder.
(h) Notwithstanding anything to the contrary set forth herein, none of
the Master Servicer 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
Master Servicer may make an Emergency Advance notwithstanding that, at the time
such Advance is made, the Master Servicer or Special Servicer may not have
adequate information available in order to make a determination whether or not
such advance would, if made, be a Nonrecoverable Servicing Advance.
Notwithstanding the previous sentence, if the Master Servicer or Special
Servicer, as applicable, shall determine that the payment of any such amount is
(i) necessary to preserve the related Mortgaged Property and (ii) would be in
the best interest of the Certificateholders and, with respect to any Serviced
Whole Loan, the related Serviced Companion Loan Holders, then the Master
Servicer shall make such payment from amounts in the Certificate Account or the
related Serviced Whole Loan Custodial Account, as applicable. In addition,
Nonrecoverable Servicing Advances (including any Emergency Advances made
pursuant to the proviso of the preceding sentence which are ultimately
determined to be Nonrecoverable Servicing Advances) shall be reimbursable
pursuant to Section 3.05 out of general collections on the Mortgage Loans and
REO Properties on deposit in the Certificate Account. The determination by the
Master Servicer, the Special Servicer (only in the case of clause (ii) of this
sentence) or the Trustee, as applicable, (i) that it has made a Nonrecoverable
Servicing Advance or (ii) that any proposed Servicing Advance, if made, would
constitute a Nonrecoverable Servicing Advance, shall be evidenced by an
Officer's Certificate delivered promptly to the Trustee (or, if applicable,
retained thereby) and the Depositor, setting forth the basis for such
determination, together with (if such determination is prior to the liquidation
of the related Mortgage Loan or REO Property) a copy of an Appraisal of the
related Mortgaged Property or REO Property, as the case may be, if an Appraisal
shall have been performed within the twelve months preceding such determination,
and further accompanied by any other information, including, without limitation,
engineering reports, environmental surveys, inspection reports, rent rolls,
income and expense statements or similar reports, that the Master Servicer or
the Special Servicer may have obtained and that supports such determination. If
such an Appraisal shall not have been required and performed pursuant to the
terms of this Agreement, the Master Servicer, the Special Servicer 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 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.
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(i) In determining the compensation of the Master Servicer or Special
Servicer, as applicable, with respect to Penalty Charges, on any Distribution
Date, the aggregate Penalty Charges collected on any Mortgage Loan or Serviced
Companion Loan since the prior Distribution Date shall be applied to reimburse
(i) the Master Servicer or the Trustee for interest on Advances with respect to
such related Mortgage Loan or Serviced Companion Loan due with respect to such
Distribution Date and (ii) the Trust Fund for any Advance Interest or Additional
Trust Fund Expenses (excluding any Special Servicing Fees, Workout Fees and
Liquidation Fees) with respect to the related Mortgage Loan or Serviced
Companion Loan incurred since the Closing Date and not previously reimbursed out
of Penalty Charges, and any Penalty Charges remaining thereafter shall be
distributed pro rata to the Master Servicer and the Special Servicer based upon
the amount of Penalty Charges the Master Servicer or the Special Servicer would
otherwise have been entitled to receive during such period with respect to such
Mortgage Loan or Serviced Companion Loan without any such application.
Section 3.12 Inspections; Collection of Financial Statements.
(a) The Master Servicer shall perform (or cause to be performed) a
physical inspection of each Mortgaged Property (other than Mortgaged Property
constituting collateral for the Xxxx Xxxxxxx Tower Mortgage Loan, the Boulevard
Mall Mortgage Loan or 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 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 Serviced
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 Serviced 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.
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(c) The Master Servicer, in the case of any Mortgage Loan or Serviced
Companion Loan (other than the Xxxx Xxxxxxx Tower Mortgage Loan, the Boulevard
Mall Mortgage Loan and Specially Serviced Mortgage Loans), or the Special
Servicer, in the case of Specially Serviced Mortgage Loans, shall make
reasonable efforts to collect promptly from each Mortgagor (other than a
Mortgagor on any Credit Lease Loan) quarterly and annual operating statements
and rent rolls of the related Mortgaged Property. In addition, the Special
Servicer shall make reasonable efforts to obtain quarterly and annual operating
statements and rent rolls with respect to each REO Property. The Master Servicer
and the Special Servicer, upon request, shall each deliver copies of the
collected items to the other such party and the Trustee in each case within ten
days of its receipt of such request.
Section 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to the
Trustee and the Serviced Companion Loan Paying Agent (who shall deliver to each
Serviced Companion Loan Holder), with a copy to the Depositor, on or before
March 15th of each year, beginning in 2004, an Officer's Certificate stating, as
to the signer thereof, that (i) a review of the activities of the Master
Servicer or the Special Servicer, as the case may be, during the preceding
calendar year and of its performance under this Agreement has been made under
such officer's supervision, (ii) to the best of such officer's knowledge, based
on such review, the Master Servicer or the Special Servicer, as the case may be,
has fulfilled in all material respects its obligations under this Agreement
throughout such year, or, if there has been a material default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and (iii) the Master Servicer or the
Special Servicer, as the case may be, has received no notice regarding
qualification, or challenging the status, of the Trust Fund as a REMIC or of the
Grantor Trust as a "grantor trust" under the Grantor Trust Provisions from the
Internal Revenue Service or any other governmental agency or body or, if it has
received any such notice, specifying the details thereof. A copy of such
Officer's Certificate may be obtained by Certificateholders upon written request
to the Trustee pursuant to Section 8.12 hereof.
Section 3.14 Reports by Independent Public Accountants.
On or before March 15th of each year, beginning in 2004, the Master
Servicer at its expense shall cause a firm of independent public accountants
(which may also render other services to the Master Servicer) that is a member
of the American Institute of Certified Public Accountants to furnish a statement
to the Trustee and the Serviced Companion Loan Paying Agent (who shall deliver
to each Serviced Companion Loan Holder) and to the Depositor to the effect that
(i) it has obtained a letter of representation regarding certain matters from
the management of the Master Servicer, which includes an assertion that the
Master Servicer has complied with certain minimum mortgage loan servicing
standards (to the extent applicable to commercial and multifamily mortgage
loans), identified in the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America, with respect
to the servicing of commercial and multifamily mortgage loans during the most
recently completed calendar year and (ii) on the basis of an examination
conducted by such firm in accordance with standards established by the American
Institute of Certified Public Accountants, such representation is fairly stated
in all material respects, subject to such exceptions and other qualifications
that may be appropriate. In rendering its report such firm
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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, a holder of a Serviced Companion Loan Security or
any Serviced Companion Loan Holder, access to any documentation regarding the
Mortgage Loans, the Serviced Companion Loans and the Trust Fund within its
control which may be required by this Agreement or by applicable law. Such
access shall be afforded without charge but only upon reasonable prior written
request and during normal business hours at the offices of the Master Servicer
or the Special Servicer, as the case may be, designated by it; provided,
however, that the applicable Certificateholders, Serviced Companion Loan
Security holder or Serviced Companion Loan Holder, as the case may be, shall be
required to pay any photocopying costs. The Master Servicer and the Special
Servicer shall each be entitled to affix a reasonable disclaimer to any
information provided by it for which it is not the original source (without
suggesting liability on the part of any other party hereto). The Master Servicer
and the Special Servicer may each deny any of the foregoing persons access to
confidential information or any intellectual property which the Master Servicer
or the Special Servicer is restricted by license, contract or otherwise from
disclosing. Neither the Master Servicer nor the Special Servicer shall be liable
for providing or disseminating information in accordance with the terms of this
Agreement.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate
of sale shall be issued to the Trustee or its nominee on behalf of the
Certificateholders (and with respect to any Serviced Whole Loan, on behalf of
the Certificateholders and the related Serviced Companion Loan Holders). The
Special Servicer, on behalf of the Trust Fund (and with respect to any Serviced
Whole Loan, on behalf of Certificateholders and the related Serviced Companion
Loan Holders), shall attempt to sell any REO Property prior to the close of the
third taxable year of the Trust Fund following the taxable year in which
ownership of such REO Property is acquired for purposes of Section 860G(a)(8) of
the Code, unless the Special Servicer either (i) is
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granted an extension of time (an "REO Extension") by the Internal Revenue
Service to sell such REO Property is acquired or (ii) obtains for the Trustee an
Opinion of Counsel, addressed to the Trustee and the Special Servicer, to the
effect that the holding by the Trust Fund of such REO Property subsequent to the
close of such period will not (subject to Section 10.01(f)) result in the
imposition of taxes on "prohibited transactions" of REMIC I, REMIC II or REMIC
III as defined in Section 860F of the Code or cause REMIC I, REMIC II or REMIC
III to fail to qualify as a REMIC (for federal (or any applicable state or
local) income tax purposes) at any time that any Certificates are outstanding or
cause any REMIC that holds a Serviced Companion Loan to fail to qualify as a
REMIC. If the Special Servicer is granted the REO Extension contemplated by
clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall sell such REO Property within such longer liquidation
period as is permitted by such REO Extension or such Opinion of Counsel, as the
case may be. Any expense incurred by the Special Servicer in connection with its
being granted the REO Extension contemplated by clause (i) of the second
preceding sentence or its obtaining the Opinion of Counsel contemplated by
clause (ii) of the second preceding sentence, shall be an expense of the Trust
Fund payable out of the Certificate Account pursuant to Section 3.05(a).
(b) The Special Servicer shall cause all funds collected and received
in connection with any REO Property to be held separate and apart from its own
funds and general assets. If any REO Acquisition shall occur, the Special
Servicer shall establish and maintain (or cause to be established and
maintained) one or more accounts (collectively, the "REO Account"), to be held
on behalf of the Trustee in trust for the benefit of the Certificateholders, for
the retention of revenues and other proceeds derived from each REO Property. The
REO Account shall be an Eligible Account and may consist of one account for some
or all of the REO Properties. If such REO Acquisition occurs with respect to the
Mortgaged Property securing the a Serviced Whole Loan, the Special Servicer
shall establish an REO Account solely with respect to such property (a "Serviced
Whole Loan REO Account"), to be held for the benefit of the Certificateholders
and the related Serviced Companion Loan Holders. The Special Servicer shall
deposit, or cause to be deposited, in the REO Account, within two Business Days
of receipt, all REO Revenues, Liquidation Proceeds (net of all Liquidation
Expenses paid therefrom) and Insurance Proceeds received in respect of an REO
Property. The Special Servicer is authorized to pay out of related Liquidation
Proceeds any Liquidation Expenses incurred in respect of an REO Property and
outstanding at the time such proceeds are received. Funds in the REO Account may
be invested in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall be entitled to make withdrawals from the REO Account to
pay itself, as additional servicing compensation in accordance with Section
3.11(d), interest and investment income earned in respect of amounts held in the
REO Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the REO Account for any Collection Period).
The Special Servicer shall give notice to the Trustee and the Master Servicer
(and with respect to any Serviced Whole Loan REO Account, the related Serviced
Companion Loan Holders) of the location of any REO Account when first
established and of the new location of such REO Account prior to any change
thereof.
(c) The Special Servicer shall cause all funds necessary for the
proper operation, management, maintenance, disposition and liquidation of any
REO Property to be withdrawn from the REO Account, but only to the extent of
amounts on deposit in the REO
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Account relating to such REO Property. Within one Business Day following the end
of each Collection Period, the Special Servicer shall withdraw from the REO
Account and deposit into the Certificate Account (or with respect to a Serviced
Whole Loan, shall withdraw from the related Serviced Whole Loan REO Account, and
deposit into the related Serviced Whole Loan Custodial Account) or deliver to
the Master Servicer (which shall deposit such amounts into the Certificate
Account or the related Serviced Whole Loan Custodial Account, as applicable) the
aggregate of all amounts received in respect of each REO Property during such
Collection Period, net of any withdrawals made out of such amounts pursuant to
Section 3.16(b) or this Section 3.16(c); provided, that the Special Servicer may
retain in the REO Account such portion of proceeds and collections as may be
necessary to maintain a reserve of sufficient funds for the proper operation,
management, maintenance and disposition of the related REO Property (including
without limitation the creation of a reasonable reserve for repairs,
replacements and necessary capital improvements and other related expenses),
such reserve not to exceed an amount sufficient to cover such items to be
incurred during the following twelve-month period.
(d) The Special Servicer shall keep and maintain separate records, on
a property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property; Independent Contractors.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a Defaulted Mortgage Loan, the Special Servicer shall review the
operation of such Mortgaged Property and determine the nature of the income that
would be derived from such property if it were acquired by the Trust Fund. If
the Special Servicer determines from such review, in its good faith and
reasonable judgment, that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the tax
imposed on "prohibited transactions" under Section 860F of the Code (either such
tax referred to herein as an "REO Tax"), such Mortgaged Property may be Directly
Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO
Property could result in income from such property that would be subject to an
REO Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor with
respect to such property, or another method of operating such property would not
result in income subject to an REO Tax, then the Special Servicer may (provided
that in the good faith and reasonable judgment of the Special Servicer, it is
commercially feasible) acquire such Mortgaged Property as REO Property and so
lease or operate such REO Property; or
(iii) Directly Operating such property as REO Property could
result in income subject to an REO Tax and, in the good faith and reasonable
judgment of the Special Servicer, that no commercially feasible means exists to
operate such property as REO Property without the Trust Fund incurring or
possibly incurring an REO Tax on income from such property, the Special Servicer
shall deliver to the Trustee, in writing, a proposed plan (the
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"Proposed Plan") to manage such property as REO Property (such plan to be
approved by the Majority Certificateholder of the Controlling Class pursuant to
Section 3.24(f) or, with respect to any Serviced Whole Loan, the related
Serviced Companion Loan Holder(s)). 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, with respect to any Serviced Whole Loan, the Trust Fund
and the related Serviced Companion Loan Holders, with respect to such property
without materially and adversely affecting the Special Servicer's ability to
sell such REO Property in accordance with this Agreement and, to the extent
consistent with the foregoing, in accordance with the Servicing Standard. Both
the Special Servicer and the Trustee may consult with counsel knowledgeable in
such matters at the expense of the Trust Fund in connection with determinations
required under this Section 3.17(a). Neither the Special Servicer nor the
Trustee shall be liable to the Certificateholders, the Trust Fund, the other
parties hereto or each other for errors in judgment made in good faith in the
reasonable exercise of their discretion while performing their respective
responsibilities under this Section 3.17(a) or, to the extent it relates to
federal income tax consequences for the Trust Fund, Section 3.17(b) below.
Nothing in this Section 3.17(a) is intended to prevent the sale of a Defaulted
Mortgage Loan or REO Property pursuant to the terms and subject to the
conditions of Section 3.18 or 3.19.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as permitted by Section 3.17(a), result in the receipt of any "income
from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the
Code or any "net income from foreclosure property" which is subject to taxation
under the REMIC Provisions. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are in the best interests of and for the benefit of the
Certificateholders and, with respect to any Serviced Whole Loan, the
Certificateholders and the related Serviced Companion Loan Holders, (as
determined by the Special Servicer in its good faith and reasonable judgment)
and, consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to each REO Property, funds necessary
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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, lease and
dispose of such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in the prior sentence with
respect to such REO Property, the Master Servicer (at the direction of the
Special Servicer) shall advance such amount as is necessary for such purposes
(which advances shall be Servicing Advances) unless (as evidenced by an
Officer's Certificate delivered to the Trustee) such advances would, if made,
constitute Nonrecoverable Servicing Advances; provided, however, that the Master
Servicer (at the direction of the Special Servicer) shall make any such
Servicing Advance if it is a necessary fee or expense incurred in connection
with the defense or prosecution of legal proceedings and such advance will be
deemed to constitute a recoverable Servicing Advance.
(c) The Special Servicer may contract with any Independent Contractor
for the operation and management of any REO Property; provided:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of the
nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered
to require, that the Independent Contractor (A) pay, out of related REO
Revenues, all costs and expenses incurred in connection with the operation and
management of such REO Property, including, without limitation, those listed in
subsection (b) hereof, and (B) remit all related REO Revenues (net of its fees
and such costs and expenses) to the Special Servicer;
(iv) none of the provisions of this Section 3.17(c) relating to
any such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any such
REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
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The Special Servicer shall be entitled to enter into an agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
Section 3.18 Sale of Defaulted Mortgage Loans.
(a) The parties hereto may sell or purchase, or permit the sale or
purchase of, any Mortgage Loan (other than the Xxxx Xxxxxxx Tower Mortgage Loan
and the Boulevard Mall Mortgage Loan) only on the terms and subject to the
conditions set forth in this Section 3.18, any applicable Serviced Whole Loan
Intercreditor Agreement or as otherwise expressly provided in or contemplated by
Sections 2.03(a) and 9.01.
(b) In the event that any Mortgage Loan (other than the Xxxx Xxxxxxx
Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) becomes 60 days
delinquent as to any Monthly Payment (or if such Mortgage Loan is a Balloon
Mortgage Loan and is delinquent as to its Balloon Payment, only if such Mortgage
Loan is also a Specially Serviced Mortgage Loan), the Special Servicer shall
promptly so notify in writing (an "Option Notice") the Master Servicer and the
Trustee, and the Trustee shall promptly notify, in writing, the Holders of the
Controlling Class. Each of the Majority Certificateholder of the Controlling
Class and the applicable Mortgage Loan Seller with respect to such Mortgage Loan
(in such capacity, together with any assignee, the "Option Holder") shall, in
that order, have the right, at its option (the "Option"), to purchase such
Mortgage Loan from the Trust Fund at a price equal to the Option Purchase Price
(as defined in clause (c) below) upon receipt of such Option Notice. The Option
is exercisable from that date until terminated pursuant to clause (f) below, and
during that period the Option shall be exercisable in any month only during the
period from the 10th calendar day of such month through the 25th calendar day,
inclusive, of such month. The Trustee on behalf of the Trust Fund shall be
obligated to sell the Mortgage Loan upon the exercise of the Option (whether
exercised by the original Holder thereof or by an assignee of such Holder), but
shall have no authority to sell the Mortgage Loan other than in connection with
the exercise of an Option (or as otherwise expressly provided in or contemplated
by Section 2.03(a) or Section 9.01). Any Option Holder that exercises the Option
shall be required to purchase the Mortgage Loan within four Business Days of
such exercise. The other party eligible to hold the Option set forth above may
at any time notify the Trustee in writing and the Trustee will notify the
current Option Holder of such party's desire to exercise the Option. If the
Option Holder neither (i) exercises the Option nor (ii) surrenders its right to
exercise the Option within 30 Business Days of its receipt of that notice, then
the Option Holder's right to exercise the Option shall lapse, and the Trustee
shall promptly notify the other party eligible to hold the Option of its rights
thereunder. If any Option Holder assigns the Option to a third party pursuant to
clause (d) below, then it shall so notify the Trustee in writing (and shall
include in such notice the relevant contact information for such third party),
and the Trustee shall promptly notify the other party eligible to hold the
Option set forth above of its rights hereunder.
Notwithstanding the foregoing paragraph, the Majority Certificateholder of
the Controlling Class or its assignee shall have the right to exercise its
Option prior to any exercise of the Option by the applicable Mortgage Loan
Seller or its assignee; provided, however, if the Option is not exercised by the
Majority Certificateholder of the Controlling Class or any assignee
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thereof within 30 Business Days of the Option Notice, then the applicable
Mortgage Loan Seller or its assignee shall have the right to exercise its
Purchase Option prior to any exercise by the Majority Certificateholder of the
Controlling Class and the applicable Mortgage Loan Seller or its assignee may
exercise such Option at any time during the 30 Business Day period immediately
following the expiration of such initial 30 day period. Following the expiration
of such 30 Business Day period, the Majority Certificateholder of the
Controlling Class shall again have the exclusive right to exercise the Purchase
Option.
(c) The "Option Purchase Price" shall be an amount equal to the fair
market value of the Mortgage Loan, as determined by the Special Servicer. Prior
to the Special Servicer's determination of fair market value referred to above,
the fair market value of the Mortgage Loan shall be deemed to be an amount equal
to the Purchase Price, including any Prepayment Premium or Yield Maintenance
Charge then payable upon the prepayment of the Mortgage Loan. The Special
Servicer shall determine the fair market value of the Mortgage Loan as soon as
reasonably practical upon the Mortgage Loan becoming 60 days delinquent or
delinquent in respect of its Balloon Payment (but in any event, not earlier than
75 days after the receipt by the Special Servicer of the Mortgage Loan File and
Servicing File relating to such Mortgage Loan), and the Special Servicer shall
promptly notify the Option Holder (and the Trustee and each of the other party
set forth above that could become the Option Holder) of the Option Purchase
Price. The Special Servicer is required to recalculate the fair market value of
the Mortgage Loan based upon a material change in circumstances or the receipt
of new information; provided that the Special Servicer shall be required to
recalculate the fair market value of the Mortgage Loan if the time between the
date of last determination of the fair market value of the Mortgage Loan and the
date of the exercise of the Option has exceeded 60 days. Upon any recalculation,
the Special Servicer shall be required to promptly notify in writing each Option
Holder (and the Trustee and each of the other party set forth above that could
become the Option Holder) of the revised Option Purchase Price. Any such
recalculation of the fair market value of the Mortgage Loan shall be deemed to
renew the Option in its original priority at the recalculated price with respect
to any party as to which the Option had previously expired or been waived,
unless the Option has previously been exercised by an Option Holder at a higher
Option Purchase Price. In determining fair market value, the Special Servicer
shall take into account, among other factors, the results of any Appraisal or
updated Appraisal that it, or the Master Servicer, may have obtained in
accordance with this Agreement within the prior twelve months; any views on fair
market value expressed by investors in mortgage loans comparable to the Mortgage
Loan (provided that the Special Servicer shall not be required to solicit such
views); the period and amount of any delinquency on the Mortgage Loan; whether
the Mortgage Loan, in the Special Servicer's actual knowledge and reasonable and
good faith judgment, is in default to avoid a prepayment restriction; the
physical condition of the related Mortgaged Property; the state of the local
economy; the expected recoveries from the Mortgage Loan if the Special Servicer
were to pursue a workout or foreclosure strategy instead of the Option being
exercised; and the Trust Fund's obligation to dispose of any foreclosed
Mortgaged Property as soon as practicable consistent with the objective of
maximizing proceeds for all Certificateholders.
(d) Any Option relating to a Mortgage Loan shall be assignable to a
third party by the Option Holder at its discretion at any time after its receipt
of the Option Notice, and upon such assignment such third party shall have all
of the rights granted to the Option Holder
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hereunder in respect of the Option. Such assignment shall only be effective upon
notice (together with a copy of the executed assignment and assumption
agreement) being delivered to the Trustee, the Master Servicer and the Special
Servicer, and none of such parties shall be obligated to recognize any entity as
an Option Holder absent such notice.
(e) If the Majority Certificateholder of the Controlling Class, the
applicable Mortgage Loan Seller or an Affiliate of any of them elects to
exercise the Option, the Trustee shall be required to determine whether the
Option Purchase Price constitutes a fair price for the Mortgage Loan. Upon
request of the Special Servicer to make such a determination, the Trustee will
do so within a reasonable period of time (but in no event more than 15 Business
Days). In doing so, the Trustee may rely on the most recent Appraisal or the
opinion of another expert in real estate matters retained by the Trustee at the
expense of the party exercising the Option. The Trustee may also rely on the
most recent Appraisal of the related Mortgaged Property that was prepared in
accordance with the requirements of this Agreement. If the Trustee were to
conclude that the Option Purchase Price does not constitute a fair price, then
the Special Servicer shall determine the fair market value taking into account
the objections of the Trustee hereunder.
(f) The Option shall terminate, and shall not be exercisable as set
forth in clause (b) above (or if exercised, but the purchase of the Mortgage
Loan has not yet occurred, shall terminate and be of no further force or effect)
if the Mortgage Loan is no longer delinquent as set forth above because (i) the
Mortgage Loan ceases to be a Specially Serviced Mortgage Loan, (ii) the Mortgage
Loan has been subject to a workout arrangement, (iii) the Mortgage Loan has been
foreclosed upon, or otherwise resolved (including by a full or discounted
pay-off) or (iv) the Mortgage Loan has been purchased by the applicable Mortgage
Loan Seller pursuant to Section 2.03 or by the Depositor or the Master Servicer
or otherwise pursuant to Section 9.01.
(g) Unless and until an Option Holder exercises an Option, the Special
Servicer shall continue to service and administer the Mortgage Loan in
accordance with the Servicing Standard and this Agreement and shall pursue such
other resolutions or recovery strategies including Workout or foreclosure, as is
consistent with this Agreement and the Servicing Standard.
(h) Subject to subsections (a) through (g) above, the Special Servicer
shall act on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Mortgage Loan
pursuant to this Section 3.18, and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective offerors, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or exchanging offers without obligation to deposit such
amounts into the Certificate Account. Any sale of a Mortgage Loan shall be final
and without recourse to the Trustee or the Trust Fund (except such recourse to
the Trust Fund imposed by those representations and warranties typically given
in such transactions, any prorations applied thereto and any customary closing
matters), and if such sale is consummated in accordance with the terms of this
Agreement, none of the Special Servicer, the Master Servicer, the Depositor or
the Trustee shall have any liability to any Certificateholder or Serviced
Companion Loan Holder with respect to the purchase price therefor accepted by
the Special Servicer or the Trustee.
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(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 Certificate Account and the Trustee, upon receipt of an Officer's
Certificate from the Master Servicer to the effect that such deposit has been
made, shall release or cause to be released to the purchaser of the Mortgage
Loan the related Mortgage File, and shall execute and deliver such instruments
of transfer or assignment, in each case without recourse, as shall be necessary
to vest in such purchaser ownership of such Mortgage Loan (subject, in the case
of an Additional Servicing Fee Mortgage Loan, to the rights of the applicable
Designated Sub-Servicer to sub-service such Mortgage Loan and the rights of the
applicable Designated Sub-Servicer, Archon, GSMC and the Master Servicer, as
applicable, to receive or retain their applicable portion of the Additional
Servicing Fee, in each case, pursuant to the related Designated Sub-Servicer
Agreement). In connection with any such purchase, the Special Servicer and the
Master Servicer shall deliver the related Servicing File (to the extent either
has possession of such file) to such purchaser.
(j) Any Mortgage Loan related to either Serviced Whole Loan may be
sold pursuant to an Option upon the exercise of such Option and delivery of
written notice of the Option Purchase Price thereof, to the Serviced Companion
Loan Holder.
Section 3.19 Sale of REO Property.
(a) The parties hereto may sell or purchase, or permit the sale or
purchase of, an REO Property only on the terms and subject to the conditions set
forth in this Section 3.19.
(b) The Special Servicer shall use reasonable efforts to solicit
offers for each REO Property on behalf of the Certificateholders (and with
respect to any Serviced Whole Loan, the Certificateholders and the related
Serviced Companion Loan Holders) in such manner as will be reasonably likely to
realize a fair price within the time period specified by Section 3.16(a). The
Special Servicer shall accept the first (and, if multiple bids are
contemporaneously received, highest) cash bid received from any Person that
constitutes a fair price for such REO Property. If the Special Servicer
determines, in its good faith and reasonable judgment, that it will be unable to
realize a fair price for any REO Property within the time constraints imposed by
Section 3.16(a), then the Special Servicer shall dispose of such REO Property
upon such terms and conditions as the Special Servicer shall deem necessary and
desirable to maximize the recovery thereon under the circumstances and, in
connection therewith, shall accept the highest outstanding cash bid, regardless
from whom received. The Liquidation Proceeds (net of related Liquidation
Expenses) for any REO Property purchased hereunder shall be deposited in the
Certificate Account, except that portion of any proceeds constituting Excess
Liquidation Proceeds shall be deposited in the Excess Liquidation Proceeds
Reserve Account.
(c) The Special Servicer shall give the Trustee and the Master
Servicer (and with respect to each Serviced Whole Loan, the related Serviced
Companion Loan Holders) not less than three Business Days' prior written notice
of its intention to sell any REO Property. No Interested Person shall be
obligated to submit a bid to purchase any REO Property, and notwithstanding
anything to the contrary contained herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any REO
Property pursuant hereto.
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(d) Whether any cash bid constitutes a fair price for any REO Property
for purposes of Section 3.19(b) shall be determined by the Special Servicer, if
the highest bidder is a Person other than an Interested Person, and by the
Trustee, if the highest bidder is an Interested Person; provided, however, that
no bid from an Interested Person shall constitute a fair price unless (i) it is
the highest bid received and (ii) at least two other bids are received from
independent third parties. In determining whether any offer received from an
Interested Person represents a fair price for any such REO Property, the Trustee
shall be supplied with and shall rely on the most recent Appraisal or updated
Appraisal conducted in accordance with this Agreement within the preceding 12
month period or, in the absence of any such Appraisal, on a narrative appraisal
prepared by a Qualified Appraiser retained by the Special Servicer. Such
appraiser shall be selected by the Special Servicer if the Special Servicer is
not making an offer with respect to an REO Property and shall be selected by the
Master Servicer if the Special Servicer is making such an offer. The cost of any
such narrative appraisal shall be covered by, and shall be reimbursable as, a
Servicing Advance. In determining whether any such offer from a Person other
than an Interested Person constitutes a fair price for any such REO Property,
the Special Servicer shall take into account (in addition to the results of any
Appraisal or updated Appraisal that it may have obtained pursuant to this
Agreement within the prior 12 months), and in determining whether any offer from
an Interested Person constitutes a fair price for any such REO Property, any
appraiser shall be instructed to take into account, as applicable, among other
factors, the period and amount of any delinquency on the affected Mortgage Loan
or Serviced Whole Loan, as applicable, the occupancy level and physical
condition of the REO Property, the state of the local economy and the obligation
to dispose of any REO Property within the time period specified in Section
3.16(a). The Purchase Price for any REO Property shall in all cases be deemed a
fair price.
(e) Subject to subsections (a) through (d) above, the Special Servicer
shall act on behalf of the Trust Fund (and with respect to the Serviced Whole
Loans, the related Serviced Companion Loan Holders) (in negotiating and taking
any other action necessary or appropriate in connection with the sale of any REO
Property, and the collection of all amounts payable in connection therewith. In
connection therewith, the Special Servicer may charge prospective offerors, and
may retain, fees that approximate the Special Servicer's actual costs in the
preparation and delivery of information pertaining to such sales or exchanging
offers without obligation to deposit such amounts into the Certificate Account
or the applicable Serviced Whole Loan Custodial Account, as the case may be. Any
sale of any REO Property shall be final and without recourse to the Trustee or
the Trust Fund (except such recourse to the Trust Fund imposed by those
representations and warranties typically given in such transactions, any
prorations applied thereto and any customary closing matters), and if such sale
is consummated in accordance with the terms of this Agreement, none of the
Special Servicer, the Master Servicer, the Depositor or the Trustee shall have
any liability to any Certificateholder or Serviced Companion Loan Holder 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).
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(g) Notwithstanding any of the foregoing paragraphs of this Section
3.19, the Special Servicer shall not be obligated to accept the highest cash
offer if the Special Servicer determines, in its reasonable and good faith
judgment, that rejection of such offer would be in the best interests of the
Certificateholders and with respect to the Serviced Whole Loans, the related
Serviced Companion Loan Holders, and the Special Servicer may accept a lower
cash offer (from any Person other than itself or an Affiliate) if it determines,
in its reasonable and good faith judgment, that acceptance of such offer would
be in the best interests of the Certificateholders and, with respect to the
Serviced Whole Loans, in the best interests of the Certificateholders and the
related Serviced Companion Loan Holders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations or the terms
offered by the prospective buyer making the lower offer are more favorable).
Section 3.20 Additional Obligations of the Master Servicer and the Special
Servicer.
(a) In connection with any Adjustable Rate Mortgage Loan (and, if and
to the extent applicable, any successor REO Loan), the Master Servicer shall
calculate adjustments in the Mortgage Rate and the Monthly Payment and shall
notify the Mortgagor of such adjustments, all in accordance with the Mortgage
Note and applicable law. In the event the Index for any Adjustable Rate Mortgage
Loan (or successor REO Loan) is not published or is otherwise unavailable, the
Master Servicer shall select a comparable alternative index with respect to such
Adjustable Rate Mortgage Loan (or successor REO Loan) over which it has no
direct control, which is readily verifiable and which is acceptable under the
terms of the related Mortgage Note.
(b) The Master Servicer and the Special Servicer, as applicable, shall
each deliver to the other and to the Trustee (for inclusion in the Mortgage
File) copies of all Appraisals, environmental reports and engineering reports
(or, in each case, updates thereof) obtained with respect to any Mortgaged
Property or REO Property. (c) Subject to the following paragraph, the Master
Servicer shall have the obligation to make any Servicing Advance that it is
requested by the Special Servicer to make within ten days of the Master
Servicer's receipt of such request. The Special Servicer shall be relieved of
any obligations with respect to an Advance that it requests the Master Servicer
to make (regardless of whether or not the Master Servicer shall make such
Advance). The Master Servicer shall be entitled to reimbursement for any
Servicing Advance made by it at the direction of the Special Servicer, together
with Advance Interest thereon, at the same time, in the same manner and to the
same extent as the Master Servicer is entitled with respect to any other
Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.20(c), the
Master Servicer shall not be required to make at the Special Servicer's
direction any Servicing Advance, if the Master Servicer determines in its
reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to make either (i) although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
or would be, if made, a Nonrecoverable Servicing Advance, or (ii) the making of
such advance was or would be in violation of the Servicing Standard or the terms
and conditions of this Agreement. The Master
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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
(other than the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage
Loan) or a Serviced 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 (other than the Xxxx Xxxxxxx Tower Mortgage
Loan and the Boulevard Mall Mortgage Loan) or Serviced Companion Loan (or the
150th day with respect to a Balloon Payment for which the Mortgagor has produced
a written refinancing commitment pursuant to clause (1) of the definition of
"Specially Serviced Mortgage Loan"), (iii) the date on which a receiver is
appointed and continues in such capacity in respect of the Mortgaged Property
securing any Mortgage Loan (other than the Xxxx Xxxxxxx Tower Mortgage Loan and
the Boulevard Mall Mortgage Loan) or Serviced 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 (other than
the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) or
any Serviced Companion Loan becomes an REO Property (each such Mortgage Loan or
Serviced Companion Loan and any related REO Loan, a "Required Appraisal Loan"),
the Special Servicer, shall request and, within 30 days of the occurrence of
such event (or such longer period as the Special Servicer is (as certified
thereby to the Trustee in writing) diligently and in good faith proceeding to
obtain such) obtain an Appraisal of the related Mortgaged Property; provided,
however, that such Appraisal shall not be required if 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 by
the Master Servicer). Based upon such Appraisal, the Special Servicer shall
determine and report to the Trustee the Appraisal Reduction Amount, if any, with
respect to such loan. The Special Servicer shall deliver a copy of any such
Appraisal to the Master Servicer and, with respect to any such Appraisal related
to a Serviced Whole Loan, to each related Serviced Companion Loan Holder.
Notwithstanding the foregoing, if a Required Appraisal Loan has a
principal balance of less than $2,000,000, a desktop estimation of value may be
substituted for any Appraisal otherwise required pursuant to this Section
3.20(d); provided, that the Special Servicer may, with the consent of the
Majority Certificateholder of the Controlling Class, order an Appraisal at the
expense of the Trust Fund.
(e) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the aggregate of all Balloon
Payment Interest Shortfalls incurred in connection with Balloon Payments
received in respect of the Mortgage
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Loans (other the Xxxx Xxxxxxx Tower Mortgage Loan or the Boulevard Mall Mortgage
Loan) during the most recently ended Collection Period.
(f) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the sum of (A) the lesser of
(i) the aggregate of all Prepayment Interest Shortfalls incurred in connection
with Principal Prepayments received in respect of the Mortgage Loans (other than
Late Due Date Mortgage Loans and excluding the Xxxx Xxxxxxx Tower Mortgage Loan
and the Boulevard Mall Mortgage Loan) during the most recently ended Collection
Period, and (ii) the aggregate Master Servicing Fees received by the Master
Servicer during such Collection Period and (B) the aggregate of all
Extraordinary Prepayment Interest Shortfalls, if any, incurred in connection
with Principal Prepayments received in respect of Late Due Date Mortgage Loans
during the most recently ended Collection Period.
(g) With respect to all ARD Loans, the Master Servicer shall apply all
Monthly Payments and any other sums due, in accordance with the terms of the
related ARD Loan.
(h) Subject to Section 3.21(a)(iv), with respect to all ARD Loans, the
Master Servicer and the Special Servicer shall not take any enforcement action
with respect to the payment of Excess Interest or principal in excess of the
principal component of the constant Monthly Payment, other than request for
collection, until the maturity date of the related Mortgage Loan. The foregoing
shall not limit the Master Servicer's and Special Servicer's obligation to
establish or direct the related Mortgagor to establish a Lock-Box Account
pursuant to Section 3.25.
(i) The Master Servicer shall be entitled to waive the application of
any provision in any ARD Loan that requires that the property manager of the
related Mortgaged Property be discharged if such ARD Loan is not paid in full on
its Anticipated Repayment Date.
(j) With respect to each Mortgage Loan (other than the Xxxx Xxxxxxx
Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) or Serviced 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.
(k) To the extent consistent with the terms of the applicable Mortgage
Loan (other than the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall
Mortgage Loan) or Serviced 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 Serviced
Companion Loan.
(l) Upon the application of the proceeds of the release of any earnout
reserve to the prepayment of the related Mortgage Loan (other than the Xxxx
Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) or Serviced
Companion Loan, the Master Servicer shall calculate, based upon the Maturity
Date, Mortgage Rate and remaining outstanding
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principal balance of such Mortgage Loan or Serviced Companion Loan, a revised
schedule upon which the remaining amount of principal and interest due upon such
Mortgage Loan or Serviced 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 or Serviced Companion Loan documents
and otherwise consistent with the Servicing Standard.
(p) To the extent consistent with the terms of the applicable Mortgage
Loan or Serviced Companion Loan, the Master Servicer shall not agree to any of
the following unless Rating Agency Confirmation is received with respect
thereto: (i) the transfer of any property securing the Geneva Commons Whole
Loan, (ii) the appointment of any replacement property manager or the incurrence
of any mezzanine financing with respect to the Mortgage Loan identified as loan
number [DBM18752](180 Madison Ave.) or, (iii) the appointment of any replacement
property manager or the transfer of any direct or indirect interest in the
related Mortgaged Property which is not permitted without consent of the lender
with respect to the Mortgage Loan identified as loan number [40929] (Fashion
Outlet).
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 any Serviced Companion Loan it is
required to service and administer hereunder, without the consent of the Trustee
or any Certificateholder, subject, however, to each of the following
limitations, conditions and restrictions:
(i) other than as provided in Sections 3.02 and 3.08, but subject
to Section 3.21(i), the Master Servicer (in such capacity) shall not agree to
any modification,
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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 Serviced Companion
Loan that would (A) affect the amount or timing of any related payment of
principal, interest or other amount payable thereunder, (B) affect the
obligation of the related Mortgagor to pay any Prepayment Premium or permit a
Principal Prepayment during any period when the terms of the Mortgage Loan or
Serviced 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 Serviced Companion Loan or reduce the
likelihood of timely payment of amounts due thereon; provided, the Master
Servicer, with the consent of the Majority Certificateholder of the Controlling
Class, shall have the authority to extend the due date of a Balloon Payment for
up to one year (but for no more than two (2) such one-year extensions);
provided, the Special Servicer (in such capacity) may agree to any modification,
waiver or amendment of any term of, or take any of the other acts referenced in
this Section 3.21(a) with respect to, a Specially Serviced Mortgage Loan that
would have any such effect, but only if, in the Special Servicer's reasonable
and good faith judgment, a material default on such Mortgage Loan or Serviced
Companion Loan has occurred or a default in respect of payment on such Mortgage
Loan or Serviced Companion Loan is reasonably foreseeable, and such
modification, waiver, amendment or other action is reasonably likely to produce
a greater recovery to Certificateholders and, with respect to the Serviced Whole
Loans, the Certificateholders and the related Serviced Companion Loan Holders on
a present value basis, than would liquidation;
(ii) any such action taken by the Special Servicer shall be
accompanied by an Officer's Certificate to such effect and to which is attached
the present value calculation which establishes the basis for such
determination, a copy of which shall be delivered to the Trustee for delivery to
the Rating Agencies;
(iii) neither the Master Servicer nor the Special Servicer may
extend the Stated Maturity Date of any Mortgage Loan or Serviced Companion Loan
beyond the date that is two years prior to the Rated Final Distribution Date
and, in the case of any Mortgage Loan or Serviced Companion Loan that is secured
solely by a Ground Lease, the Master Servicer or the Special Servicer, as the
case may be, shall give due consideration to the remaining term of such Ground
Lease prior to extending the Stated Maturity Date of the Mortgage Loan or
Serviced Companion Loan;
(iv) neither the Master Servicer nor the Special Servicer shall
make or permit any modification, waiver or amendment of any term of, or take any
of the other acts referenced in this Section 3.21(a) or Section 3.20(h) with
respect to, any Mortgage Loan or Serviced 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 Serviced 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 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);
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(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 Serviced Companion Loan, which collateral constitutes real
property, unless the Master Servicer or the Special Servicer, as the case may
be, shall have first determined, in its reasonable and good faith judgment,
based upon an Environmental Assessment performed within the twelve months prior
to such determination (and such additional environmental testing as the Master
Servicer or Special Servicer, as the case may be, deems necessary and
appropriate) prepared by an Independent Person who regularly conducts
Environmental Assessments (and such additional environmental testing), at the
expense of the Mortgagor, that such additional or substitute collateral is in
compliance with applicable environmental laws and regulations and that there are
no circumstances or conditions present with respect to such new collateral
relating to the use, management or disposal of any Hazardous Materials for which
investigation, testing, monitoring, containment, clean-up or remediation would
be required under any then applicable environmental laws and/or regulations;
(vi) neither the Master Servicer nor the Special Servicer shall,
with respect to a Mortgage Loan or Serviced Companion Loan, other than a
Specially Serviced Mortgage Loan release or substitute any collateral securing
an outstanding Mortgage Loan or Serviced 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 Serviced Companion Loan in an amount at least equal to,
or a delivery of substitute collateral with an Appraised Value at least equal
to, the Appraised Value of the collateral to be released, (C) the remaining
Mortgaged Property and any substitute collateral is, in the Master Servicer's or
Special Servicer's, as the case may be, good faith and reasonable judgment,
adequate security for the Mortgage Loan or Serviced 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 Serviced Companion Loan or any other acts referenced in this Section 3.21(a)
that is required under the terms of such Mortgage Loan or Serviced 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 Serviced 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 any Serviced 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
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(viii) the Master Servicer shall not consent to (A) any waiver
related to the conditions for release or reduction of reserves, (B) any waivers
relating to the establishment of reserves, (C) waivers of any requirements
regarding additional collateral or (D) waivers of any lock-box requirements,
unless the Special Servicer has approved such waiver in writing.
(ix) Notwithstanding anything to the contrary herein, but subject
always to the Servicing Standard, following any extensions of the due date by
the Master Servicer pursuant to subsection (a)(i) above, the Special Servicer
(and not the Master Servicer) may extend the due date of a Balloon Payment for
up to one year (subject to a limit of three such one-year extensions), provided
that such extension would not cause an Adverse REMIC Event or an Adverse Grantor
Trust Event with respect to the Grantor Trust. In connection with such an
extension of the due date approved by the Special Servicer in accordance with
this subsection (b), the Special Servicer shall process all requests and related
documentation and shall be entitled to retain 100% of any modification fee or
extension fee that is actually paid by the related Mortgagor. The Special
Servicer shall promptly notify the Master Servicer of any extension granted by
the Special Servicer in accordance with this paragraph.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust Fund, the Certificateholders or any other Person if
its analysis and determination that the modification, waiver, amendment or other
action contemplated by Section 3.21(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Master Servicer or Special
Servicer and the Master Servicer or Special Servicer was not negligent in
ascertaining the pertinent facts. The Master Servicer shall not have any
liability to the Trust Fund, the Certificateholders or any other Person with
respect to the Special Servicer's approval, disapproval or delay in processing
any assumption, earnout release or reserve release as provided in Section
3.21(a)(vii) or (viii).
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan or Serviced Companion Loan, notwithstanding that the terms of such
Mortgage Loan or Serviced Companion Loan or such modification, waiver or
amendment so permit.
(d) The Master Servicer and, with respect to a Specially Serviced
Mortgage Loan, the Special Servicer each may, as a condition to its granting any
request by a Mortgagor for consent, modification, waiver or indulgence or any
other matter or thing, the granting of which is within the Master Servicer's or
the Special Servicer's discretion pursuant to the terms of the instruments
evidencing or securing the related Mortgage Loan or Serviced 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
Serviced Companion Loan) for the additional services performed in connection
with such request, together with any related costs and expenses incurred by it.
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(e) Except for waivers of Penalty Charges and notice periods, all
material modifications, waivers and amendments of the Mortgage Loans or Serviced
Companion Loans 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
(other than (i) the Xxxx Xxxxxxx Tower Mortgage Loan, unless notified of any
such amendment by the LB-UBS 2003-C5 Master Servicer or the LB-UBS 2003-C5
Special Servicer and (ii) the Boulevard Mall Mortgage Loan, unless notified of
any such amendment by the GE 2003-C2 Master Servicer or the GE 2003-C2 Special
Servicer) or any Serviced 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 ten Business Days)
following the execution thereof.
(g) The Master Servicer or Special Servicer, as applicable, shall not
waive the payment of any fees by a Mortgagor that may be due or partially due to
the other party without such other party's consent.
(h) The failure of the Special Servicer to respond to the Master
Servicer within ten Business Days of the Master Servicer's written request (such
request to include sufficient information regarding the applicable Mortgage Loan
or Serviced Companion Loan and a written recommendation and rationale therefor
with respect to such request) for any approval or consent required hereunder,
shall be deemed to constitute a grant of such request for approval or consent.
(i) Notwithstanding the foregoing provisions of this Section 3.21, but
subject to Section 3.28, (i) any modifications, waivers or amendments to the
Xxxx Xxxxxxx Tower Mortgage Loan shall be subject to the conditions set forth in
the LB-UBS 2003-C5 Pooling and Servicing Agreement, (ii) any modifications,
waivers or amendments to the Boulevard Mall Mortgage Loan shall be subject to
the conditions set forth in the GE 2003-C2 Pooling and Servicing Agreement and
(iii) the Master Servicer shall not agree to any material modification, material
waiver or material amendment of any term of any other Mortgage Loan unless (a)
the Master Servicer shall have notified the Special Servicer of the request for
the material modification and provided its written recommendation, analysis and
any other related documents in the possession or control of the Master Servicer
reasonably requested by the Special Servicer to the Special Servicer, (b) the
Special Servicer shall have approved such material modification, notified the
Majority Certificateholder of the Controlling Class of the request for such
approval and of the Master Servicer's and its own approval of such material
modification and shall have submitted to the Majority Certificateholder of the
Controlling Class each of the documents submitted to the Special Servicer by the
Master Servicer and (c) the Majority Certificateholder of the Controlling Class
shall have also approved such material modification; provided, however, that the
Special Servicer shall advise the Majority Certificateholder of the Controlling
Class of its approval (if any) of such material modification promptly upon (but
in no case to exceed ten Business Days) its receipt of such notice,
recommendation, analysis and any reasonably requested documents from the Master
Servicer; provided, further, that if the Majority Certificateholder of the
Controlling Class does not reject such recommendation within five
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Business Days of its receipt of the Special Servicer's recommendation and any
additional documents or information that the Majority Certificateholder of the
Controlling Class may reasonably request, then the material modification shall
be deemed approved. Unless required by the related Mortgage Loan documents or
the Servicing Standard, neither the Master Servicer nor Special Servicer shall
approve such material modification unless the Mortgagor shall agree to pay all
fees and costs associated with such material modification (unless such condition
shall have been waived by the Majority Certificateholder of the Controlling
Class).
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 (other than the Xxxx Xxxxxxx Tower Mortgage Loan
and the Boulevard Mall Mortgage Loan) or Serviced 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 Serviced 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
(other than the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage
Loan) or Serviced 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 Serviced Companion Loan,
and the Special Servicer's right to receive the Special Servicing Fee with
respect to such Mortgage Loan or Serviced Companion Loan, shall terminate, and
the obligations of the Master Servicer to service and administer such Mortgage
Loan or Serviced 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.
The Master Servicer, upon the occurrence of a Servicing Transfer Event with
respect to any Serviced Companion Loan, and the Special Servicer upon a
determination that such
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Specially Serviced Mortgage Loan has become a Corrected Mortgage Loan, shall
promptly give written notice thereof to the related Serviced Companion Loan
Holders.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (with a
copy of each such original to the Master Servicer), and copies of any additional
related Mortgage Loan or Serviced Companion Loan information, including
correspondence with the related Mortgagor.
(c) Notwithstanding anything in this Agreement to the contrary, in the
event that the Master Servicer and the Special Servicer are the same Person, all
notices, certificates, information and consents required to be given by the
Master Servicer to the Special Servicer or vice versa shall be deemed to be
given without the necessity of any action on such Person's part.
Section 3.23 Sub-Servicing Agreements.
(a) The Master Servicer may enter into Sub-Servicing Agreements for
the servicing and administration of all or a part of the Mortgage Loans (other
than the Xxxx Xxxxxxx Tower Mortgage Loan and the Boulevard Mall Mortgage Loan)
or Serviced Companion Loans for which it is responsible hereunder, provided,
that in each case, the Sub-Servicing Agreement: (i) is not inconsistent with
this Agreement and shall provide that the Sub-Servicer will maintain errors and
omissions insurance and fidelity bond coverage as required of the Master
Servicer under Section 3.07 hereof; (ii) provides that if the Master Servicer
shall for any reason no longer be the Master Servicer hereunder (including,
without limitation, by reason of an Event of Default or their termination
hereunder), the Trustee, its designee or any successor Master Servicer may
thereupon assume all of the rights and, except to the extent they arose prior to
the date of assumption, obligations of the Master Servicer, under such
agreement; (iii) expressly or effectively provides that (if the Master Servicer
and the Special Servicer are not the same Person) such agreement shall terminate
with respect to any Mortgage Loan or Serviced Companion Loan serviced thereunder
at the time such Mortgage Loan or Serviced 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, GSMC and the Master Servicer, as the case may be, shall be
entitled to continue to receive or retain their applicable portion of the
Additional Servicing Fee with respect to such Mortgage Loan pursuant to the
related Designated Sub-Servicer Agreement); (iv) requires that the Master
Servicer consent to any modification to the terms of a Mortgage Loan or Serviced
Companion Loan pursuant to Section 3.21; and (v) does not permit the
Sub-Servicer any direct rights of indemnification that may be satisfied out of
assets of the Trust Fund. Termination penalties or fees incurred under any such
Sub-Servicing Agreement shall not be an obligation of, or expense chargeable to,
the Certificateholders or the Trust Fund. References in this Agreement to
actions taken or to be taken by the Master Servicer include actions taken or to
be taken by a Sub-Servicer on behalf of the Master Servicer; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer hereunder to make Servicing Advances and Delinquency
Advances shall be deemed to have been advanced by the Master Servicer, out of
its own funds and, accordingly, such Advances shall be recoverable by such
Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Master Servicer, and, for so long as they are outstanding,
such Advances shall
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accrue interest in accordance with Section 3.11(f) or Section 4.03(d), as
applicable, such interest to be allocable between the Master Servicer and such
Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer shall be deemed to have received any payment when the Sub-Servicer
receives such payment.
(b) Each Sub-Servicer shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Master
Servicer, for the benefit of the Trustee and the Certificateholders and, with
respect to the Serviced Whole Loans, the related Serviced Companion Loan
Holders, shall (at no expense to the Trustee, the Certificateholders, the
Serviced Companion Loan Holders or the Trust Fund) monitor the performance and
enforce the obligations of each Sub-Servicer retained by it under the related
Sub-Servicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Sub-Servicing Agreements in
accordance with their respective terms and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time by the Master Servicer in accordance with the Servicing Standard.
(d) In the event the Trustee, its designee or any successor Master
Servicer assumes the rights and obligations of the Master Servicer under any
Sub-Servicing Agreement, the Master Servicer at its expense shall, upon request
of the Trustee, deliver to the assuming party all documents and records relating
to such Sub-Servicing Agreement and the Mortgage Loans then being serviced
thereunder and an accounting of amounts collected and held on behalf of it
thereunder, and otherwise use reasonable efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
shall remain obligated and liable to the Trustee, the Certificateholders and,
with respect to the Serviced Whole Loans, the related Serviced Companion Loan
Holders for the servicing and administration of the Mortgage Loans and the
Serviced Whole Loans in accordance with the provisions of this Agreement to the
same extent and under the same terms and conditions as if it alone were
servicing and administering the Mortgage Loans or Serviced Companion Loans for
which it is responsible.
Section 3.24 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.
(a) Subject to the rights of the Serviced Companion Loan Holders
pursuant to the Serviced Whole Loan Intercreditor Agreements, and subject to
Sections 3.28(c) and 6.06, the Majority Certificateholder of the Controlling
Class, may at any time and from time to time replace any existing Special
Servicer or any Special Servicer that has resigned or otherwise ceased to serve
as Special Servicer, including pursuant to Section 7.01. Such Holders shall so
designate a Person to so serve by the delivery to the Trustee of a written
notice stating such designation, subject to Rating Agency Confirmation. The
Trustee shall, promptly after receiving any such notice, so notify the Rating
Agencies, the Master Servicer and the Special Servicer.
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The designated Person shall become the Special Servicer as of the date the
Trustee shall have received: (i) written confirmation from the Rating Agencies
stating that if the designated Person were to serve as Special Servicer
hereunder, none of the then-current ratings of the outstanding Classes of the
Certificates or, if applicable, Serviced Companion Loan Securities would be
qualified (including by placement on "negative credit watch"), downgraded or
withdrawn; (ii) a written acceptance of all obligations of the Special Servicer
under this Agreement, executed by the designated Person; and (iii) an Opinion of
Counsel (at the expense of the Person designated to become the Special Servicer
or the Holders that made the designation) to the effect that the designation of
such Person to serve as Special Servicer is in compliance with this Section 3.24
and all other applicable provisions of this Agreement, that upon the execution
and delivery of the written acceptance referred to in the immediately preceding
clause (ii), the designated Person shall be bound by the terms of this Agreement
and that this Agreement shall be enforceable against the designated Person in
accordance with its terms. The existing Special Servicer shall be deemed to have
resigned simultaneously with such designated Person's becoming the Special
Servicer hereunder; provided, however, that (i) the resigning Special Servicer
shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the effective date of such resignation, and
(ii) it and its directors, officers, employees and agents shall continue to be
entitled to the benefits of Section 6.03, notwithstanding any such resignation.
Such resigning Special Servicer shall cooperate with the Trustee, the Master
Servicer and the replacement Special Servicer in effecting the termination of
the resigning Special Servicer's responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
replacement Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been deposited in the REO Account or
delivered by the Special Servicer to the Master Servicer or that are thereafter
received with respect to Specially Serviced Mortgage Loans and REO Properties.
The Majority Certificateholder of the Controlling Class shall be responsible for
paying any costs associated with such replacement, including the reasonable
costs of any servicing transfer other than in the case of a replacement due to
the Special Servicer being terminated for cause or as a result of an assignment
pursuant to Section 6.02(c).
(b) The Majority Certificateholder of the Controlling Class will have
no liability to the Trust, the Certificateholders or the Serviced Companion Loan
Holders for any action taken, or for refraining from the taking of any action,
in good faith pursuant to this Agreement, or for errors in judgment. Each Holder
and Certificate Owner acknowledges and agrees, by its acceptance of its
Certificates or an interest therein, that the Majority Certificateholder of the
Controlling Class may have special relationships and interests that conflict
with those of Holders and Certificate Owners of one or more Classes of
Certificates, that the Majority Certificateholder of the Controlling Class may
act solely in the interests of the Holders and Certificate Owners of the
Controlling Class, that the Majority Certificateholder of the Controlling Class
does not have any duties to the Holders and Certificate Owners of any Class of
Certificates other than the Controlling Class, that the Majority
Certificateholder of the Controlling Class may take actions that favor interests
of the Holders and Certificate Owners of the Controlling Class over the
interests of the Holders and Certificate Owners of one or more other Classes of
Certificates, and that the Majority Certificateholder of the Controlling Class
shall have no liability whatsoever for having so acted, and no Certificateholder
may take any action whatsoever against the Majority Certificateholder of the
Controlling Class or any director, officer, employee, agent or principal thereof
for having so acted.
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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.
(d) The Majority Certificateholder of the Controlling Class and the
"Controlling Class Representative" (as defined in the Serviced Whole Loan
Intercreditor Agreements) with respect to the Serviced Companion Loans shall be
provided access on the website of the Master Servicer or Trustee, as applicable,
to all reports and notices required to be submitted to the Rating Agencies by
the terms hereof by any of the Trustee or the Master Servicer (or in lieu of
providing such access the Master Servicer or Trustee, as applicable, may provide
copies (including electronic copies) of such reports and notices directly to the
Majority Certificateholder of the Controlling Class). The Special Servicer shall
provide copies of any reports and notices it is required to send to the Majority
Certificateholder of the Controlling Class directly to the Majority
Certificateholder of the Controlling Class.
(e) Each of the Master Servicer and Special Servicer, as appropriate,
shall, without charge, make a knowledgeable Servicing Officer available to
answer questions from the Majority Certificateholder of the Controlling Class
(and, if applicable, with respect to a Serviced Companion Loan, the "Controlling
Class Representative" as defined in the applicable Serviced Whole Loan
Intercreditor Agreement, regarding, on no more often than a monthly basis,
during regular business hours at such time and for such duration as the Master
Servicer, the Special Servicer and the Majority Certificateholder of the
Controlling Class (and, if applicable, with respect to a Serviced Companion
Loan, the related Controlling Class Representative) shall reasonably agree (in
each case except with respect to the Xxxx Xxxxxxx Tower Mortgage Loan and the
Boulevard Mall Mortgage Loan, but subject to subsections (h) and (i) below), the
performance of any Mortgage Loan or Serviced Whole Loan that is delinquent,
Specially Serviced Mortgage Loans, Mortgage Loans or Serviced Companion Loans on
the CMSA Servicer Watch List or Mortgage Loans or Serviced Whole Loans otherwise
reasonably identified as exhibiting deteriorating performance. The Majority
Certificateholder of the Controlling Class (and, if applicable, with respect to
a Serviced Companion Loan, the related Controlling Class Representative) agrees
to identify for the Master Servicer and the Special Servicer in advance (but at
least two Business Days prior to the related monthly conference) the Mortgage
Loans or Serviced Whole Loans it intends to discuss. As a condition to such
disclosure, the Majority Certificateholder of the Controlling Class (and, if
applicable, with respect to a Serviced Companion Loan, the related Controlling
Class Representative) shall execute a confidentiality agreement substantially in
the form attached hereto as Exhibit H-2 and an Investor Certification.
(f) Subject to the right of any Serviced Companion Loan Holder
pursuant to the related Serviced Whole Loan Intercreditor Agreement, the
Majority Certificateholder of the Controlling Class shall be entitled to advise
the Special Servicer with respect to the following actions of the Special
Servicer, and notwithstanding anything herein to the contrary except as
necessary or advisable to avoid an Adverse REMIC Event and except as set forth
in, and in any event subject to, Section 3.24(g), the Special Servicer will not
be permitted to take any of the following actions with respect to the Mortgage
Loans, the Serviced Whole Loans or the
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Mortgaged Properties related thereto as to which the Majority Certificateholder
of the Controlling Class has objected in writing within five Business Days of
being notified thereof and/or receipt of all reasonably requested documents in
the Special Servicer's possession (provided that if such written objection has
not been received by the Special Servicer within such five Business Day period,
then the Majority Certificateholder of the Controlling Class's approval will be
deemed to have been given):
(i) any actual or proposed foreclosure upon or comparable
conversion (which may include acquisitions of an REO Property) of the ownership
of properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default;
(ii) any modification or waiver of any term of the related
Mortgage Loan or Serviced Whole Loan documents of a Mortgage Loan or Serviced
Companion Loan that relates to the Maturity Date, the Mortgage Rate, the Stated
Principal Balance, amortization term or payment frequency thereof or any
provision requiring the payment of a Prepayment Premium, other than a
modification consisting of the extension of the maturity date of a Mortgage Loan
or Serviced Companion Loan for one year or less;
(iii) any proposed or actual sale of an REO Property (other than
in connection with the termination of the Trust Fund or pursuant to Section
3.18);
(iv) any determination to bring an REO Property into compliance
with applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a
Mortgage Loan or Serviced Whole Loan unless required by the underlying Mortgage
Loan documents;
(vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance"
clause;
(vii) any release of any performance or "earn-out" reserves,
escrows or letters of credit; and
(viii) any acceptance of an assumption agreement releasing a
Mortgagor from liability under a Mortgage Loan or Serviced Whole Loan.
(g) Notwithstanding anything contained in this Agreement to the
contrary, no advice, direction or objection from or by the Majority
Certificateholder of the Controlling Class, as contemplated by this Agreement
may (and the Special Servicer and the Master Servicer shall ignore and act
without regard to any such advice, direction or objection that the Special
Servicer or the Master Servicer, as applicable, has determined, in its
reasonable, good faith judgment, would) (A) require or cause the Master Servicer
or the Special Servicer, as applicable, to violate the terms of any Mortgage
Loan or Serviced Companion Loan then serviced by it, applicable law or any
provision of this Agreement, including the Master Servicer's obligation or the
Special Servicer's obligation to act in accordance with the Servicing Standard
and to maintain the REMIC status of REMIC I, REMIC II or REMIC III or (B) result
in the imposition of a "prohibited transaction" or "prohibited contribution" tax
under the REMIC Provisions, or (C)
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expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan
Seller, the Trust Fund, the Trustee or their officers, directors, employees or
agents to any claim, suit or liability, or (D) materially expand the scope of
the Special Servicer's or the Master Servicer's responsibilities under this
Agreement.
(h) No later than the Business Day following the Trustee's (or Master
Servicer's or Special Servicer's, as applicable) receipt of any written notice
given pursuant to section 3.03(e) of the Xxxx Xxxxxxx Tower Co-Lender Agreement,
the Trustee shall forward such notice to the Majority Certificateholder of the
Controlling Class. Upon receipt of such notice, the Majority Certificateholder
of the Controlling Class will have the right to consult with the LB-UBS 2003-C5
Master Servicer or LB-UBS 2003-C5 Special Servicer, as applicable, with respect
to the action proposed in such notice as set forth in the Xxxx Xxxxxxx Tower
Co-Lender Agreement.
(i) Upon the occurrence of a Boulevard Mall Control Appraisal Event
(as defined under the GE 2003-C2 Pooling and Servicing Agreement), the Majority
Certificateholder of the Controlling Class shall have the right to jointly
exercise with the directing certificateholder appointed under GE 2003-C2 Pooling
and Servicing Agreement, the approval and consents rights afforded to it
pursuant to the Boulevard Mall Intercreditor Agreement and to the extent not
inconsistent therewith the GE 2003-C2 Pooling and Servicing Agreement.
Section 3.25 Lock-Box Accounts and Servicing Accounts.
(a) With respect to each Mortgage Loan (other than the Xxxx Xxxxxxx
Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) or Serviced Whole
Loan, the Master Servicer shall administer each Lock-Box Account, Cash
Collateral Account and Servicing Account in accordance with the related Mortgage
Loan, Serviced Whole Loan, Cash Collateral Account Agreement or Lock-Box
Agreement, if any.
(b) With respect to any Mortgage Loan (other than the Xxxx Xxxxxxx
Tower Mortgage Loan and the Boulevard Mall Mortgage Loan) or Serviced Whole 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 Serviced Whole Loan, the Master Servicer (or, with respect to any
Specially Serviced Mortgage Loan, the Special Servicer) shall use reasonable
efforts to establish or cause to be established such Lock-Box Account upon the
occurrence of such events unless the Master Servicer (or the Special Servicer,
as applicable) determines, in accordance with the Servicing Standard, that such
Lock-Box Account should not be established. Notwithstanding the foregoing, the
Master Servicer (or the Special Servicer, as applicable) shall use reasonable
efforts to establish or cause to be established a Lock-Box Account for any ARD
Loan no later than its Anticipated Repayment Date.
Section 3.26 Representations and Warranties of the Master Servicer and the
Special Servicer.
GMACCM, in its capacity as both Master Servicer and Special Servicer
hereunder hereby represents and warrants to the Trustee, for its own benefit and
the benefit of the
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Certificateholders, to the Serviced Companion Loan Holders and to the Depositor,
as of the Closing Date, that:
(i) GMACCM is a corporation, duly organized, validly existing and
in good standing under the laws of the State of California, and GMACCM is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by GMACCM, and
the performance and compliance with the terms of this Agreement by GMACCM, will
not violate GMACCM's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets.
(iii) GMACCM has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and binding
obligation of GMACCM, enforceable against GMACCM in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) GMACCM is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state or
local governmental or regulatory authority, which violation, in GMACCM's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of GMACCM to perform its obligations under this Agreement or
the financial condition of GMACCM.
(vi) No litigation is pending or, to the best of GMACCM's
knowledge, threatened against GMACCM the outcome of which, in GMACCM's good
faith and reasonable judgment, could reasonably be expected to prohibit GMACCM
from entering into this Agreement or materially and adversely affect the ability
of GMACCM to perform its obligations under this Agreement.
(vii) GMACCM has errors and omissions insurance coverage which is
in full force and effect and complies with the requirements of Section 3.07
hereof.
(viii) No consent, approval, authorization or order, registration
or filing with or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by GMACCM with this Agreement, or the consummation by GMACCM of any
transaction contemplated hereby, other than (1) such
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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.
Section 3.27 Third-Party Beneficiaries.
Each of the Trustee and the Master Servicer acknowledge that: (a) the
LB-UBS 2003-C5 Master Servicer, the LB-UBS 2003-C5 Trustee, the LB-UBS 2003-C5
Fiscal Agent, the GE 2003-C2 Master Servicer, the GE 2003-C2 Trustee and the GE
2003-C2 Fiscal Agent shall be a third-party beneficiary under this Agreement
with respect to any provisions herein relating to (i) the reimbursement of any
Nonrecoverable Servicing Advances made with respect to (A) the Xxxx Xxxxxxx
Tower Mortgage Loan by the LB-UBS 2003-C5 Master Servicer, the LB-UBS 2003-C5
Trustee or the LB-UBS 2003-C5 Fiscal Agent, as applicable, and (B) the Boulevard
Mall Mortgage Loan by the GE 2003-C2 Master Servicer, the GE 2003-C2 Trustee or
the GE 2003-C2 Fiscal Agent, as applicable, (ii) the indemnification of the
LB-UBS 2003-C5 Master Servicer or the GE 2003-C2 Master Servicer, as applicable,
against any claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with its duties under the LB-UBS 2003-C5 Pooling and
Servicing Agreement or the GE 2003-C2 Pooling and Servicing Agreement, as
applicable, and this Agreement and relating to the Xxxx Xxxxxxx Tower Mortgage
Loan or the Boulevard Mall Mortgage Loan, as applicable, and (b) (i) each of the
LB-UBS 2003-C5 Special Servicer and (ii) the GE 2003-C2 Special Servicer shall
be a third-party beneficiary under this Agreement with respect to any provisions
herein relating to (i) the reimbursement of any nonrecoverable advances made
with respect to the Xxxx Xxxxxxx Tower Mortgage Loan by the LB-UBS 2003-C5
Special Servicer or the Boulevard Mall Tower Mortgage Loan by the GE 2003-C2
Special Servicer, as applicable (it being understood that the LB-UBS 2003-C5
Special Servicer and the GE 2003-C2 Special Servicer, as applicable, are not
required to make any advances), and (ii) the indemnification of the LB-UBS
2003-C5 Special Servicer and the GE 2003-C2 Special Servicer, as applicable,
against any claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection its duties under the LB-UBS 2003-C5 Pooling and Servicing
Agreement or the GE 2003-C2 Pooling and Servicing Agreement, as applicable, and
this Agreement and relating to the Xxxx Xxxxxxx Tower Mortgage Loan or the
Boulevard Mall Mortgage Loan, as applicable.
Section 3.28 Certain Matters Relating to the Xxxx Xxxxxxx Tower Whole Loan
and the Boulevard Mall Whole Loan.
(a) (i) In the event that any of the LB-UBS 2003-C5 Trustee, the
LB-UBS 2003-C5 Master Servicer or the LB-UBS 2003-C5 Special Servicer shall be
replaced in accordance with the terms of the LB-UBS 2003-C5 Pooling and
Servicing Agreement, the Master Servicer and the Special Servicer shall
acknowledge its successor as the successor to the LB-UBS 2003-C5 Trustee, the
LB-UBS 2003-C5 Master Servicer or the LB-UBS 2003-C5, as the case may be.
(ii) In the event that any of the GE 2003-C2 Trustee, the GE
2003-C2 Master Servicer or the GE 2003-C2 Special Servicer shall be replaced in
accordance with the
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terms of the GE 2003-C2 Pooling and Servicing Agreement, the Master Servicer and
the Special Servicer shall acknowledge its successor as the successor to the GE
2003-C2 Trustee, the GE 2003-C2 Master Servicer or the GE 2003-C2 Special
Servicer, as the case may be.
(b) The Master Servicer shall deliver, or cause to be delivered, to
the Trustee, promptly following receipt from the LB-UBS 2003-C5 Master Servicer,
the LB-UBS 2003-C5 Special Servicer, the LB-UBS 2003-C5 Trustee, the GE 2003-C2
Master Servicer, the GE 2003-C2 Special Servicer or the GE 2003-C2 Trustee any
servicing reports concerning the Xxxx Xxxxxxx Tower Mortgage Loan or the
Boulevard Mall Mortgage Loan, as applicable; provided, however, that in
accordance with the instructions of the Trustee pursuant to Section 3.02(b), the
LB-UBS 2003-C5 Master Servicer shall deliver the remittance report relating to
the Balloon Payment due on the Xxxx Xxxxxxx Tower Mortgage Loan directly to the
Trustee.
Section 3.29 Serviced Companion Loan Intercreditor Matters.
(a) Except for those duties to be performed by, and notices to be
furnished by, the Trustee or the Serviced Companion Loan Paying Agent under this
Agreement, the Master Servicer or the Special Servicer, as applicable, shall
perform such duties and furnish such notices, reports and information on behalf
of the Trust Fund as may be the obligation of the Trust under the related
Serviced Whole Loan Intercreditor Agreement.
(b) If, pursuant to Section 2.03, Section 3.18 or Section 9.01, any
Mortgage Loan that relates to a Serviced Whole Loan is purchased or repurchased
from the Trust Fund, the purchaser thereof shall be bound by the terms of the
related Serviced Whole Loan Intercreditor Agreement and shall assume the rights
and obligations of the "Note A Holder" under such Serviced Whole Loan
Intercreditor Agreement. All portions of the related Mortgage File and other
documents pertaining to such Mortgage Loan shall be endorsed or assigned to the
extent necessary or appropriate to the purchaser of such Mortgage Loan in its
capacity as "Note A Holder" (as a result of such purchase or repurchase), under
the related Serviced Whole Loan Intercreditor Agreement in the manner
contemplated under such agreement, which such purchaser shall be deemed to
acknowledge. Thereafter, such Mortgage File shall be held by the "Note A Holder"
or a custodian appointed thereby for the benefit of the "Note A Holder", as
their interests appear under the related Serviced Whole Loan Intercreditor
Agreement. If the related Servicing File is not already in the possession of
such party, it shall be delivered to the master servicer or special servicer, as
the case may be, under the separate servicing agreement for the Serviced Whole
Loan.
In addition, if at any time neither any portion of a Mortgage Loan related
to a Serviced Whole Loan nor any related REO Property is an asset of the Trust,
and if a separate servicing agreement with respect to the Serviced Whole Loan or
any REO Property, as applicable, has not been entered into pursuant to the
related Serviced Whole Loan Intercreditor Agreement, then, until such time as a
separate servicing agreement is entered into in accordance with such Serviced
Whole Loan Intercreditor Agreement, and notwithstanding that neither such
Mortgage Loan nor any related REO Property is an asset of the Trust, the Trustee
shall continue to hold the related Mortgage File, and the Master Servicer and
the Special Servicer shall continue to service and administer the applicable
Serviced Whole Loan and/or any REO Property, for the benefit of the holder of
the applicable Mortgage Loan and the related Serviced Companion Loan Holders,
under this Agreement as if such Serviced Whole Loan or any REO Property were the
sole assets subject thereto, with any references herein to (i) the Trust, (ii)
the Trustee, (iii) the Certificates,
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(iv) the Certificateholders (or any sub-group thereof), or (v) any
representative of such holders (or any sub-group thereof), all being construed
to refer to the "Note A Holder".
If pursuant to Section 2.03, Section 3.18 or Section 9.01, any Mortgage
Loan that relates to a Serviced Whole Loan is purchased or repurchased from the
Trust Fund and the servicing and administration of the Serviced Whole Loan is to
be governed by a separate servicing agreement and not by this Agreement, the
Master Servicer and the Special Servicer shall continue to act in such
capacities under such separate servicing agreement, which agreement shall be
reasonably acceptable to the Master Servicer and the Special Servicer, and shall
contain servicing and administration, limitation of liability, indemnification
and servicing compensation provisions substantially similar to the corresponding
provisions of this Agreement, except for the fact that such Serviced Whole Loan
and the related Mortgaged Property shall be the sole asset serviced and
administered thereunder and the sole source of funds thereunder. Prior to the
applicable Serviced Whole Loan being serviced under any separate servicing
agreement, the Rating Agencies then rating any Serviced Companion Loan
Securities shall have provided written confirmation to the related Serviced
Companion Loan Holders (at such Serviced Companion Loan Holders' expense) that
the servicing of such Serviced Whole Loan under such agreement would not result
in a downgrade, qualification or withdrawal of any of the ratings assigned by
such Rating Agencies with respect to the related class of Serviced Companion
Loan Securities.
(c) In the event that any Serviced Companion Loan is included in a
securitization trust pursuant to a Serviced Companion Loan Securitization
Agreement, neither the Master Servicer nor the Special Servicer will be
permitted to take any of the following actions with respect to the applicable
Serviced Whole Loan until it has notified the Directing Certificateholder in
writing and the Directing Certificateholder has consented in writing to such
action (it being understood and agreed that if such written consent is not
received by the Master Servicer or the Special Servicer then such approval will
be deemed not to have been given):
(i) any proposed or actual foreclosure upon or comparable
conversion (which may include acquisition of an REO Property) of the ownership
of any related Mortgaged Property and the other collateral securing the Serviced
Whole Loan if such Serviced Whole Loan comes into and continues to default;
(ii) any modification, amendment or waiver of a monetary term
(including the amount of and timing of payments but excluding the waiver of
default charges) or any material non-monetary term (excluding the waiver of any
"due-on-sale" or "due-on-encumbrance" clause, which clauses are addressed in
clause (viii) below) of the Serviced Whole Loan;
(iii) any proposed sale of any related Mortgaged Property after
it becomes an REO Property (other than in connection with the termination of the
Trust Fund) for less than the purchase price specified herein;
(iv) any acceptance of a discounted payoff of the Serviced Whole
Loan;
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(v) any determination to bring any related Mortgaged Property
after it becomes an REO Property into compliance with applicable environmental
laws or to otherwise address Hazardous Materials located at such Mortgaged
Property;
(vi) any release of real property collateral for the Serviced
Whole Loan (other than releases made in connection with the grant of a
non-material easement or a right-of-way);
(vii) any acceptance of substitute or additional collateral for
the Serviced Whole Loan (other than defeasance collateral as required in
accordance with the terms thereof);
(viii) any waiver of any rights under a "due-on-sale" or
"due-on-encumbrance" clause for the Serviced Whole Loan;
(ix) any determination by the Master Servicer or Special Servicer
not to maintain or cause borrower for the Serviced Whole Loan to maintain for
the related Mortgaged Property or REO Property all-risk casualty or other
insurance that provides coverage for acts of terrorism, despite the fact that
such insurance may be required under the terms of the Serviced Whole Loan; and
(x) any change in the property manager for the Mortgaged Property
or REO Property which is required to be approved by the lender in accordance
with the terms of the Serviced Whole Loan;
provided that, in the event that the Master Servicer or Special Servicer, as
applicable, determines, in accordance with the Servicing Standard, that
immediate action is necessary to protect the interest of the Certificateholders
and the Directing Certificateholder (as a collective whole), the Master Servicer
or Special Servicer, as applicable, may take any such action without waiting for
the response of the Directing Certificateholder. The Master Servicer or Special
Servicer, as applicable, shall promptly notify the Directing Certificateholder
of any actions taken pursuant to this paragraph.
In the event that the Directing Certificateholder withholds its
consent, a third party operating advisor will be appointed to make the final
determination with respect to such actions in accordance with the related
Serviced Whole Loan Intercreditor Agreement.
(d) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Directing Certificateholder or operating
advisor, as applicable, as contemplated by Section 3.29(c), may (and the Master
Servicer or Special Servicer, as applicable, shall ignore and act without regard
to any such advice, direction or objection that the Master Servicer or Special
Servicer, as applicable, has determined, in its reasonable, good faith judgment,
would) (A) require or cause the Master Servicer or Special Servicer, as
applicable, to violate any provision of this Agreement (exclusive of Section
3.29(c)) (including the Master Servicer's or the Special Servicer's, as
applicable, obligation to act in accordance with the Servicing Standard), or the
related loan documents or the REMIC Provisions and (B) result in a "prohibited
transaction" or "prohibited contribution tax" under the REMIC Provisions.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
AND RELATED MATTERS
Section 4.01 Distributions.
(a) On each Distribution Date, the Trustee shall be deemed to apply
the Available Distribution Amount for such date for the following purposes and
in the following order of priority:
(i) to pay interest to REMIC II in respect of the various REMIC I
Regular Interests, up to an amount equal to, and pro rata in accordance with,
all Uncertificated Distributable Interest for each such REMIC I Regular Interest
for such Distribution Date and, to the extent not previously deemed paid, for
all prior Distribution Dates;
(ii) to pay principal to REMIC II in respect of the various REMIC
I Regular Interests, up to an amount equal to, and pro rata in accordance with,
in the case of each such REMIC I Regular Interest for such Distribution Date,
the excess, if any, of the Uncertificated Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date, over
the Stated Principal Balance of the related Mortgage Loan, REO Loan or, if
applicable, Replacement Mortgage Loan(s), as the case may be, that will be
outstanding immediately following such Distribution Date; and
(iii) to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to the various REMIC
I Regular Interests, up to an amount equal to, and pro rata in accordance with,
the Loss Reimbursement Amount for each such REMIC I Regular Interest immediately
prior to such Distribution Date.
On each Distribution Date, the Trustee shall be deemed to apply any amounts
withdrawn from the Excess Liquidation Proceeds Reserve Account for such
Distribution Date to reimburse REMIC II for any Realized Losses and Additional
Trust Fund Expenses previously deemed allocated to the various REMIC I Regular
Interests and unreimbursed pursuant to Section 4.01(a)(iii), up to an amount
equal to, and pro rata in accordance with, the Loss Reimbursement Amount for
each such REMIC I Regular Interest immediately prior to such Distribution Date.
On each Distribution Date, the Trustee shall pay to the Holders of the
Class R-I Certificates, in accordance with Section 4.01(c), that portion, if
any, of the Available Distribution Amount for such date that has not otherwise
been deemed paid to REMIC II in respect of the REMIC I Regular Interests
pursuant to the foregoing provisions of this Section 4.01(a) (such portion, the
"Class R-I Distribution Amount" for such Distribution Date).
On each Distribution Date, the Trustee shall be deemed to apply amounts
relating to each Prepayment Premium then on deposit in the Distribution Account
and received during or prior to the related Collection Period, to pay additional
interest to REMIC II in respect of the REMIC I Regular Interest that relates to
the Mortgage Loan or REO Loan, as the case may be, as to which such Prepayment
Premium was received.
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All amounts (other than additional interest in the form of amounts relating
to Prepayment Premiums) deemed paid to REMIC II in respect of the REMIC I
Regular Interests pursuant to this Section 4.01(a) on any Distribution Date is
hereinafter referred to as the "REMIC II Distribution Amount" for such date.
(b) On each Distribution Date, the Trustee shall be deemed to apply
the REMIC II Distribution Amount (other than any amounts withdrawn from the
Excess Liquidation Proceeds Reserve Account) for such date for the following
purposes and in the following order of priority:
(i) to pay interest to REMIC III in respect of all REMIC II
Regular Interests up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC II Regular Interests for such Distribution
Date and, to the extent not previously deemed paid, for all prior Distribution
Dates with such payments allocated among the REMIC II Regular Interests such
that remaining amounts, if any, of unpaid interest on each such REMIC II Regular
Interest will equate to the remaining unpaid accrued interest on the
corresponding Class of Principal Balance Certificates or Class X Component
outstanding after all subsequent adjustments made on such Distribution Date
under Section 4.01(c) below;
(ii) to pay principal to REMIC III in respect of all REMIC II
Regular Interests apportioned as payment of Uncertificated Principal Balance
among REMIC II Regular Interests such that the remaining Uncertificated
Principal Balance of each such class will equal the then outstanding Class
Principal Balance of the corresponding Principal Balance Certificates after all
subsequent adjustments made on such Distribution Date under Section 4.01(c)
below (other than payments thereunder in reimbursement of any Realized Losses
and Additional Trust Fund Expenses); provided, that (A) with respect to
distributions of principal in respect of REMIC II Regular Interests XX-0-0,
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H,
LA-1-2-I, LA-1-2-J, LA-1-2-K and LA-1-2-L, (I) the aggregate Uncertificated
Principal Balance of such REMIC II Regular Interests shall correspond with the
outstanding Class Principal Balance of the Class A-1 Certificates and (II) the
Uncertificated Principal Balance of the REMIC II Regular Interest LA-1-2-A will
only be reduced after the Uncertificated Principal Balance of the REMIC II
Regular Interest LA-1-1 has been reduced to zero, the Uncertificated Principal
Balance of the REMIC II Regular Interest LA-1-2-B will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LA-1-2-A has
been reduced to zero, the Uncertificated Principal Balance of the REMIC II
Regular Interest LA-1-2-C will only be reduced after the Uncertificated
Principal Balance of the REMIC II Regular Interest LA-1-2-B has been reduced to
zero, the Uncertificated Principal Balance of the REMIC II Regular Interest
LA-1-2-D will only be reduced after the Uncertificated Principal Balance of the
REMIC II Regular Interest LA-1-2-C has been reduced to zero, the Uncertificated
Principal Balance of the REMIC II Regular Interest LA-1-2-E will only be reduced
after the Uncertificated Principal Balance of the REMIC II Regular Interest
LA-1-2-D has been reduced to zero, the Uncertificated Principal Balance of the
REMIC II Regular Interest LA-1-2-F will only be reduced after the Uncertificated
Principal Balance of the REMIC II Regular Interest LA-1-2-E has been reduced to
zero, the Uncertificated Principal Balance of the REMIC II Regular Interest
LA-1-2-G will only be reduced after the Uncertificated Principal Balance of the
REMIC II Regular Interest LA-1-2-F has been reduced to zero, the Uncertificated
Principal Balance of the REMIC II Regular Interest LA-1-2-H will only be reduced
after the Uncertificated Principal
172
Balance of the REMIC II Regular Interest LA-1-2-G has been reduced to zero, the
Uncertificated Principal Balance of the REMIC II Regular Interest LA-1-2-I will
only be reduced after the Uncertificated Principal Balance of the REMIC II
Regular Interest LA-1-2-H has been reduced to zero, the Uncertificated Principal
Balance of the REMIC II Regular Interest LA-1-2-J will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LA-1-2-I has
been reduced to zero, the Uncertificated Principal Balance of the REMIC II
Regular Interest LA-1-2-K will only be reduced after the Uncertificated
Principal Balance of the REMIC II Regular Interest LA-1-2-J has been reduced to
zero and the Uncertificated Principal Balance of the REMIC II Regular Interest
LA-1-2-L will only be reduced after the Uncertificated Principal Balance of the
REMIC II Regular Interest LA-1-2-K has been reduced to zero; (B) with respect to
distributions of principal in respect of REMIC II Regular Interests LF-A, LF-B,
LF-C and LF-D, (I) the aggregate Uncertificated Principal Balance of the REMIC
II Regular Interests LF-A, LF-B, LF-C and LF-D shall correspond with the
outstanding Class Principal Balance of the Class F Certificates and (II) the
Uncertificated Principal Balance of the REMIC II Regular Interest LF-B will only
be reduced after the Uncertificated Principal Balance of the REMIC II Regular
Interest LF-A has been reduced to zero, the Uncertificated Principal Balance of
the REMIC II Regular Interest LF-C will only be reduced after the Uncertificated
Principal Balance of the REMIC II Regular Interest LF-B has been reduced to zero
and the Uncertificated Principal Balance of the REMIC II Regular Interest LF-D
will only be reduced after the Uncertificated Principal Balance of the REMIC II
Regular Interest LF-C has been reduced to zero; (C) with respect to
distributions of principal in respect of REMIC II Regular Interests LG-A, LG-B
and LG-C, (I) the aggregate Uncertificated Principal Balance of the REMIC II
Regular Interests LG-A, LG-B and LG-C shall correspond with the outstanding
Class Principal Balance of the Class G Certificates and (II) the Uncertificated
Principal Balance of the REMIC II Regular Interest LG-B will only be reduced
after the Uncertificated Principal Balance of the REMIC II Regular Interest LG-A
has been reduced to zero and the Uncertificated Principal Balance of the REMIC
II Regular Interest LG-C will only be reduced after the Uncertificated Principal
Balance of the REMIC II Regular Interest LG-B has been reduced to zero; (D) with
respect to distributions of principal in respect of REMIC II Regular Interests
LH-A and LH-B, (I) the aggregate Uncertificated Principal Balance of the REMIC
II Regular Interests LH-A and LH-B shall correspond with the outstanding Class
Principal Balance of the Class H Certificates and (II) the Uncertificated
Principal Balance of the REMIC II Regular Interest LH-B will only be reduced
after the Uncertificated Principal Balance of the REMIC II Regular Interest LH-A
has been reduced to zero; (E) with respect to distributions of principal in
respect of REMIC II Regular Interests LJ-A, LJ-B and LJ-C, (I) the aggregate
Uncertificated Principal Balance of the REMIC II Regular Interests LJ-A, LJ-B
and LJ-C shall correspond with the outstanding Class Principal Balance of the
Class J Certificates and (II) the Uncertificated Principal Balance of the REMIC
II Regular Interest LJ-B will only be reduced after the Uncertificated Principal
Balance of the REMIC II Regular Interest LJ-A has been reduced to zero and the
Uncertificated Principal Balance of the REMIC II Regular Interest LJ-C will only
be reduced after the Uncertificated Principal Balance of the REMIC II Regular
Interest LJ-B has been reduced to zero; and (F) with respect to distributions of
principal in respect of REMIC II Regular Interests LK-A and LK-B, (I) the
aggregate Uncertificated Principal Balance of the REMIC II Regular Interests
LK-A and LK-B shall correspond with the outstanding Class Principal Balance of
the Class K Certificates and (II) the Uncertificated Principal Balance of the
REMIC II Regular Interest LK-B will only be
173
reduced after the Uncertificated Principal Balance of the REMIC II Regular
Interest LK-A has been reduced to zero.
(iii) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II Regular
Interests, apportioned among the REMIC II Regular Interests consistent with the
reimbursement payments made on the corresponding Classes of Principal Balance
Certificates on such Distribution Date under Section 4.01(c) below; provided,
that (A) with respect to REMIC II Regular Interests XX-0-0, XX-0-0-X, XX-0-0-X,
XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J,
LA-1-2-K and LA-1-2L, any Realized Losses and Additional Trust Fund Expenses
shall be allocated and reimbursed first to REMIC II Regular Interest LA-1-2-L,
then to REMIC II Regular Interest LA-1-2-K, then to REMIC II Regular Interest
LA-1-2-J, then to REMIC II Regular Interest LA-1-2-I, then to REMIC II Regular
Interest LA-1-2-H, then to REMIC II Regular Interest LA-1-2-G, then to the REMIC
II Regular Interest LA-1-2-F, then to REMIC II Regular Interest LA-1-2-E, then
to REMIC II Regular Interest LA-1-2-D, then to REMIC II Regular Interest
LA-1-2-C, then to REMIC II Regular Interest LA-1-2-B, then to REMIC II Regular
Interest LA-1-2-A and then to REMIC II Regular Interest LA-1-1, (B) with respect
to REMIC II Regular Interests LF-A, LF-B, LF-C and LF-D, any Realized Losses and
Additional Trust Fund Expenses shall be allocated and reimbursed first to the
REMIC II Regular Interest LF-D, the to the REMIC II Regular Interest LF-C, then
to the REMIC II Regular Interest LF-B and then to REMIC II Regular Interest
LF-A, (C) with respect to REMIC II Regular Interests LG-A, LG-B and LG-C, any
Realized Losses and Additional Trust Fund Expenses shall be allocated and
reimbursed first to the REMIC II Regular Interest LG-C, then to the REMIC II
Regular Interest LG-B and then to REMIC II Regular Interest LG-A, (D) with
respect to REMIC II Regular Interests LH-A and LH-B, any Realized Losses and
Additional Trust Fund Expenses shall be allocated and reimbursed first to the
REMIC II Regular Interest LH-B and then to REMIC II Regular Interest LH-A, (E)
with respect to REMIC II Regular Interests LJ-A, LJ-B and LJ-C, any Realized
Losses and Additional Trust Fund Expenses shall be allocated and reimbursed
first to the REMIC II Regular Interest LJ-C, then to the REMIC II Regular
Interest LJ-B and then to REMIC II Regular Interest LJ-A, and (F) with respect
to REMIC II Regular Interests LK-A and LK-B, any Realized Losses and Additional
Trust Fund Expenses shall be allocated and reimbursed first to the REMIC II
Regular Interest LK-B and then to REMIC II Regular Interest LK-A.
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).
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On each Distribution Date, the Trustee shall be deemed to apply all amounts
relating to Prepayment Premiums then on deposit in the Distribution Account and
received during or prior to the related Collection Period, to pay additional
interest to REMIC III in respect of REMIC II Regular Interests allocable among
the REMIC II Regular Interests in an amount with respect to each REMIC II
Regular Interest equal to the amount allocable to the corresponding Class of
Principal Balance Certificates and Class X Component outstanding after all
subsequent adjustments made on such Distribution Date under Section 4.01(c)
below.
(c) On each Distribution Date, following the deemed payments to REMIC
III in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(b), the Trustee shall withdraw from the Distribution Account the
Available Distribution Amount for such Distribution Date and shall apply such
amount for the following purposes and in the following order of priority:
(i) to pay interest 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, second to the Holders of the Class A-2 Certificates and third to
the Holders of the Class A-3 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 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 Principal Distribution Amount" shall be to the Principal Distribution
Amount net of any distributions of principal made in respect thereof to the
Holders of each Class of Class A Certificates that, pursuant to clause (ii)
above, have a prior right to payment with respect thereto.
On each Distribution Date, following the foregoing series of payments on
the Senior Certificates, the Trustee shall apply the remaining portion, if any,
of the Available Distribution Amount for such date for the following purposes
and in the following order of priority:
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(i) to pay interest to the Holders of the Class B Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(ii) if the Class Principal Balances of the Class A Certificates
have been reduced to zero, to pay principal to the Holders of the Class B
Certificates, up to an amount equal to the lesser of (A) the then outstanding
Class Principal Balance of such Class of Certificates and (B) the remaining
Principal Distribution Amount for such Distribution Date;
(iii) to reimburse the Holders of the Class B Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been paid;
(iv) to pay interest to the Holders of the Class C Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A and Class B
Certificates have been reduced to zero, to pay principal to the Holders of the
Class C Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class of Certificates and (B) the
remaining Principal Distribution Amount for such Distribution Date;
(vi) to reimburse the Holders of the Class C Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(vii) to pay interest to the Holders of the Class D Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(viii) if the Class Principal Balances of the Class A, Class B
and Class C Certificates have been reduced to zero, to pay principal to the
Holders of the Class D Certificates, up to an amount equal to the lesser of (A)
the then outstanding Class Principal Balance of such Class of Certificates and
(B) the remaining Principal Distribution Amount for such Distribution Date;
(ix) to reimburse the Holders of the Class D Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(x) to pay interest to the Holders of the Class E Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
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(xi) if the Class Principal Balances of the Class A, Class B,
Class C and Class D Certificates have been reduced to zero, to pay principal to
the Holders of the Class E Certificates, up to an amount equal to the lesser of
(A) the then outstanding Class Principal Balance of such Class of Certificates
and (B) the remaining Principal Distribution Amount for such Distribution Date;
(xii) to reimburse the Holders of the Class E Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xiii) to pay interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A, Class B,
Class C, Class D and Class E Certificates have been reduced to zero, to pay
principal to the Holders of the Class F Certificates, up to an amount equal to
the lesser of (A) the then outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Principal Distribution Amount for such
Distribution Date;
(xv) to reimburse the Holders of the Class F Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xvi) to pay interest to the Holders of the Class G Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xvii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E and Class F Certificates have been reduced to zero, to
pay principal to the Holders of the Class G Certificates, up to an amount equal
to the lesser of (A) the then outstanding Class Principal Balance of such Class
of Certificates and (B) the remaining Principal Distribution Amount for such
Distribution Date;
(xviii) to reimburse the Holders of the Class G Certificates, up
to an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xix) to pay interest to the Holders of the Class H Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xx) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F and Class G Certificates have been reduced to
zero, to pay principal to the Holders of the Class H Certificates, up to an
amount equal to the lesser of (A) the then
177
outstanding Class Principal Balance of such Class of Certificates and (B) the
remaining Principal Distribution Amount for such Distribution Date;
(xxi) to reimburse the Holders of the Class H Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxii) to pay interest to the Holders of the Class J
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates have been
reduced to zero, to pay principal to the Holders of the Class J Certificates, up
to an amount equal to the lesser of (A) the then outstanding Class Principal
Balance of such Class of Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Date;
(xxiv) to reimburse the Holders of the Class J Certificates, up
to an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxv) to pay interest to the Holders of the Class K Certificates,
up to an amount equal to all Distributable Certificate Interest in respect of
the Class K Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxvi) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class J Certificates
have been reduced to zero, to pay principal to the Holders of the Class K
Certificates, up to an amount equal to the lesser of (A) the then outstanding
Class Principal Balance of such Class K Certificates and (B) the remaining
Principal Distribution Amount for such Distribution Dates;
(xxvii) to reimburse the Holders of the Class K Certificates, up
to an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class K Certificates and for which no
reimbursement has previously been received;
(xxviii) to pay interest to the Holders of the Class L
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class L Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xxix) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates have been reduced to zero, to pay principal to the Holders of the
Class L Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class L Certificates and (B) the
remaining Principal Distribution Amount for such Distribution Dates;
178
(xxx) to reimburse the Holders of the Class L Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class L Certificates and for which no
reimbursement has previously been received;
(xxxi) to pay interest to the Holders of the Class M
Certificates, up to an amount equal to all Distributable Certificate Interest in
respect of such Class M Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xxxii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K and Class
L Certificates have been reduced to zero, to pay principal to the Holders of the
Class M Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class M Certificates and (B) the
remaining Principal Distribution Amount for such Distribution Dates;
(xxxiii) to reimburse the Holders of the Class M Certificates, up
to an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Class M Certificates and for which no
reimbursement has previously been received;
(xxxiv) to pay interest to the Holders of the Class N
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 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 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 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
179
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 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 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) and (xli) above with respect
to any Class of Principal Balance Certificates, will be so made to the Holders
thereof, up to an amount equal to the entire then outstanding Class Principal
Balance of such Class of Certificates. References to "remaining Principal
Distribution Amount" in any of clauses (ii), (v), (viii), (xi), (xiv), (xvii),
(xx), (xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii) and (xli) above, in
connection with the payments of principal to be made to the Holders of any Class
of Principal Balance Certificates, shall be to the Principal Distribution Amount
for such Distribution Date, net of any payments of principal made in respect
thereof to the Holders of each Class of Principal Balance Certificates that have
a higher Payment Priority.
On each Distribution Date, the Trustee shall withdraw any amounts then on
deposit in the Distribution Account that represent Prepayment Premiums collected
during or prior to the related Collection Period and shall distribute such
amounts, in each case, subject to available funds, as additional interest, as
follows:
(xlvi) 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
180
(xlvii) then, to the Holders of the Class X-1 Certificates.
All of the foregoing distributions to be made from the Distribution Account
on any Distribution Date with respect to the REMIC III Certificates shall be
deemed made from the payments deemed made to REMIC II in respect of the REMIC II
Regular Interests on such Distribution Date pursuant to Section 4.01(b).
On each Distribution Date, the Trustee shall withdraw from the Distribution
Account, as Grantor Trust Assets, any amounts that represent Excess Interest
actually collected on any ARD Loans and any related REO Loans during the related
Collection Period and shall distribute with respect to their interests in the
Grantor Trust, such amounts to the holders of the Class P Certificates, without
regard to whether any such Class is entitled to distributions of interest or
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:
(xlviii) first, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) up to an amount equal
to all Realized Losses or Additional Trust Fund Expenses, if any, previously
deemed allocated to them and unreimbursed after application of the Available
Distribution Amount for such Distribution Date;
(xlix) 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;
(l) 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
181
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.
(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.
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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.
Section 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer.
(a) Subject to Section 8.02(v), based on information received from the
Master Servicer, on each Distribution Date, the Trustee shall provide or make
available as provided herein to all of the Holders of each Class of Certificates
(and, in the case of a Class of Book-Entry Certificates, to each Person that
provides the Trustee with an Investor Certification), to the parties hereto and
to the Rating Agencies written reports, including reports in substantially the
form attached hereto as Exhibit G (the "Distribution Date Statement"), setting
forth, among other things, the following information:
(i) the amount of distributions, if any, made on such
Distribution Date to the holders of each Class of Principal Balance Certificates
and applied to reduce the respective Class Principal Balances thereof;
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(ii) the amount of distributions, if any, made on such
Distribution Date to the Holders of each Class of REMIC III Regular Certificates
allocable to (A) Distributable Certificate Interest, (B) Prepayment Premiums and
(C) Excess Interest;
(iii) the amount of any distributions made on such Distribution
Date to the Holders of each Class of Residual Certificates;
(iv) the aggregate amount of outstanding Delinquency Advances as
of the related Determination Date;
(v) the aggregate amount of Servicing Fees retained by or paid to
the Master Servicer and the Special Servicer in respect of the related
Collection Period;
(vi) the aggregate Stated Principal Balance of the Mortgage Pool
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;
(vii) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the outstanding
Mortgage Loans in the Mortgage Pool at the close of business on the related
Determination Date;
(viii) as of the Determination Date, the number and aggregate
unpaid principal balance of Mortgage Loans in the Mortgage Pool (A) delinquent
one month, (B) delinquent two months, (C) delinquent three or more months, (D)
that are Specially Serviced Mortgage Loans but are not delinquent or (E) as to
which foreclosure proceedings have been commenced;
(ix) with respect to the Mortgage Pool, the aggregate Stated
Principal Balance of Mortgage Loans as to which the related borrower is subject
or is expected to be subject to a bankruptcy proceeding;
(x) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection Period,
the Stated Principal Balance and unpaid principal balance of such Mortgage Loan
as of the date such Mortgaged Property became an REO Property and the most
recently determined Appraised Value and date upon which the Appraisal was
performed;
(xi) as to any Mortgage Loan repurchased or otherwise liquidated
or disposed of during the related Collection Period, the loan number thereof and
the amount of any Liquidation Proceeds and/or other amounts, if any, received
thereon during the related Collection Period and the portion thereof included in
the Available Distribution Amount for such Distribution Date;
(xii) with respect to any REO Property included in the Trust Fund
as of the close of business on the last day of the related Collection Period,
the loan number of the related Mortgage Loan, the book value of such REO
Property and the amount of any income collected with respect to such REO
Property (net of related expenses) and other amounts, if any,
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received on such REO Property during the related Collection Period and the
portion thereof included in the Available Distribution Amount for such
Distribution Date and the most recently determined Appraised Value and date upon
which the Appraisal was performed;
(xiii) with respect to any REO Property sold or otherwise
disposed of during the related Collection Period, the loan number of the related
Mortgage Loan, and the amount of Liquidation Proceeds and other amounts, if any,
received in respect of such REO Property during the related Collection Period,
the portion thereof included in the Available Distribution Amount for such
Distribution Date and the balance of the Excess Liquidation Proceeds Reserve
Account for such Distribution Date;
(xiv) the Distributable Certificate Interest in respect of each
Class of REMIC III Regular Certificates for such Distribution Date;
(xv) any unpaid Distributable Certificate Interest in respect of
each Class of REMIC III Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xvi) the Pass-Through Rate for each Class of REMIC III Regular
Certificates for such Distribution Date;
(xvii) the original Class Principal Balance or Class Notional
Amount as of the Closing Date and the Class Principal Balance or Class Notional
Amount, as the case may be, of each Class of REMIC III Regular Certificates
immediately before and immediately after such Distribution Date, separately
identifying any reduction in the Class Principal Balance or Class Notional
Amount, as the case may be, of each such Class due to Realized Losses and
Additional Trust Fund Expenses;
(xviii) the Certificate Factor for each Class of REMIC III
Regular Certificates immediately following such Distribution Date;
(xix) the Principal Distribution Amount for such Distribution
Date;
(xx) the aggregate amount of Principal Prepayments made during
the related Collection Period, and the aggregate amount of any Prepayment
Interest Excesses received and Prepayment Interest Shortfalls incurred in
connection therewith;
(xxi) the aggregate amount of Realized Losses and Additional
Trust Fund Expenses, if any, incurred with respect to the Trust Fund during the
related Collection Period;
(xxii) any Appraisal Reduction Amounts on a loan-by-loan basis,
and the total Appraisal Reduction Amounts, as of the related Determination Date;
and
(xxiii) such additional information as contemplated by Exhibit G
hereto.
In the case of information furnished pursuant to subclauses (i), (ii), (iii) and
(xvii) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each
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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 the general public the
related Distribution Date Statement, the CMSA Bond Level File, the CMSA
Collateral Summary File and the CMSA Loan Setup File via its internet website
which is initially located at "xxx.xxxxxxx.xxx/xxxx." In addition, the Trustee
shall make available each month, on a restricted basis, solely to each
Privileged Person, (i) the CMSA Loan Periodic Update File delivered for each
Distribution Date, the CMSA Property File, the CMSA Comparative Financial Status
Report and the CMSA Financial File, (ii) the Servicer Reports, and (iii) as a
convenience to such Privileged Persons (and not in furtherance of the
distribution thereof under the securities laws), the Prospectus and this
Agreement (which may also be made available to the general public). 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
Serviced Companion Loans at a website maintained by the Master Servicer.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Certificate a statement containing the information as to the
applicable Class set forth in clauses (i), (ii) and (iii) of the description of
Distribution Date Statements above aggregated for such calendar year or
applicable portion thereof during which such person was a Certificateholder,
together with such other information as the Trustee determines to be necessary
to enable Certificateholders to prepare their tax returns for such calendar
year. Such obligation of the Trustee shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time are in
force.
Upon filing with the Internal Revenue Service, the Trustee shall furnish to
the Holders of the Residual Certificates the Form 1066 and shall furnish their
respective Schedules Q thereto at the times required by the Code or the Internal
Revenue Service, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Residual Certificates may reasonably request.
The specification of information to be furnished by the Trustee to the
Certificateholders in this Section 4.02 (and any other terms of this Agreement
requiring or calling for delivery or
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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 Serviced Whole 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
H-1 hereto and (F) the Trustee shall be entitled to distribute or make available
such Additional Information in accordance with such reasonable rules and
procedures as it may deem necessary or appropriate (which may include the
requirement that an agreement that provides such information shall be used
solely for purposes of evaluating the investment characteristics or valuation of
the Certificates be executed by the recipient, if and to the extent the Trustee
deems the same to be necessary or appropriate). Nothing herein shall be
construed to impose upon the Trustee any obligation or duty to furnish or
distribute any Additional Information to any Person in any instance, and the
Trustee shall neither have any liability for furnishing nor for refraining from
furnishing Additional Information in any instance. The Trustee shall be entitled
(but not required) to request and receive direction from the Depositor as to the
manner of delivery of any such Additional Information, if and to the extent the
Trustee deems necessary or advisable, and to require that any consent, direction
or request given to it pursuant to this Section be made in writing.
Upon the authorization of the Depositor, the Trustee shall make available
to Bloomberg Financial Markets, L.P. ("Bloomberg") or such other vendor chosen
by the Depositor, all the electronic reports delivered or made available
pursuant to this Section 4.02(a) to the Certificateholders and Certificate
Owners using a format and media mutually acceptable to the Trustee and
Bloomberg.
(b) No later than the Business Day prior to each Distribution Date,
subject to the last paragraph of this subsection (b), the Master Servicer shall
deliver or cause to be delivered to the Trustee (and, if the Master Servicer is
not the Special Servicer, the Trustee shall
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deliver to the Special Servicer) and the Serviced Companion Loan Paying Agent in
electronic form mutually acceptable to the Trustee and the Master Servicer the
following reports or information: (i) a CMSA Delinquent Loan Status Report, (ii)
a CMSA REO Status Report, (iii) a CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, (iv) a CMSA Historical Liquidation Report, (v)
the CMSA Servicer Watch List, (vi) the CMSA Financial File, (vi) the CMSA
Property File, (viii) the CMSA Comparative Financial Status Report and (ix) the
Advance Interest Reconciliation Report.
No later than the Business Day prior to each Distribution Date, the Master
Servicer will deliver to the Trustee (by electronic means) the CMSA Comparative
Financial Status Report for each Mortgage Loan (other than any Credit Lease
Loans) or related Mortgaged Property as of the Determination Date immediately
preceding the preparation of such report for each of the following three periods
(but only to the extent the related borrower is required by the Mortgage to
deliver and does deliver, or otherwise agrees to provide and does provide, such
information): (i) the most current available year-to-date; (ii) each of the
previous two full fiscal years stated separately (to the extent such information
is in the Master Servicer's possession); and (iii) the "base year" (representing
the original analysis of information used as of the Cut-Off Date).
No later than 12:00 noon (New York City time) on the second Business Day
prior to each Distribution Date, the Master Servicer will deliver to the Trustee
a CMSA Loan Periodic Update File setting forth certain information with respect
to the Mortgage Loans (including the Xxxx Xxxxxxx Tower Mortgage Loan and the
Boulevard Mall Mortgage Loan to the extent such information is received), the
Serviced Companion Loans and the Mortgaged Properties and a single report (the
"Collection Report") setting forth, among other things, the information
specified in clauses (i) through (vi) below (the amounts and allocations of
payments, collections, fees and expenses with respect to Specially Serviced
Mortgage Loans and REO Properties to be based upon the report to be delivered by
the Special Servicer to the Master Servicer on the second Business Day after the
related Determination Date, in the form required by Section 4.02(c) below):
(i) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account in respect of such Distribution
Date that is allocable to principal on or in respect of the Mortgage Loans and
any REO Loans, separately identifying the aggregate amount of any Principal
Prepayments included therein, and (if different) the Principal Distribution
Amount for the immediately succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account in respect of such Distribution
Date that is allocable to (A) interest on or in respect of the Mortgage Loans
and any REO Loans, (B) Prepayment Premiums and (C) Excess Interest;
(iii) the aggregate amount of any Delinquency Advances made
pursuant to Section 4.03 of this Agreement as of the end of the prior calendar
month that were included in amounts deposited in the Distribution Account;
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(iv) the information required to be included in the Distribution
Date Statement for the next succeeding Distribution Date and described in
clauses (v) through (xiii) and (xix) through (xxiii) of the description of the
Distribution Date Statement in Section 4.02(a);
(v) the loan number and the unpaid principal balance as of the
close of business on such Determination Date of each Specially Serviced Mortgage
Loan and each other Defaulted Mortgage Loan; and
(vi) such other information on a Mortgage Loan-by-Mortgage Loan
or REO Property-by-REO Property basis as the Trustee or the Depositor shall
reasonably request in writing (including, without limitation, information with
respect to any modifications of any Mortgage Loan, any Mortgage Loans in default
or foreclosure, the operation and disposition of REO Property and the assumption
of any Mortgage Loan).
On the date on which the report described above is delivered to the
Trustee, the Master Servicer shall also deliver or cause to be delivered to the
Trustee (i) a report, in form reasonably acceptable to the Trustee, containing
the information with respect to the Mortgage Pool necessary for the Trustee to
prepare with respect to the Mortgage Pool any additional schedules and tables
required to be made available by the Trustee pursuant to Section 4.02(a), and
(ii) an updated Mortgage Loan Schedule, in each case reflecting the changes in
the Mortgage Pool during the related Collection Period. In addition, on such
date, the Master Servicer shall also deliver or cause to be delivered to the
Serviced Companion Loan Paying Agent a report, in form reasonably acceptable to
the Serviced Companion Loan Paying Agent, containing the information necessary
for the Serviced Companion Loan Paying Agent to prepare the report specified in
Section 4.05(a).
In addition, the Master Servicer is also required to perform with respect
to each Mortgaged Property (except any Mortgaged Property securing the Xxxx
Xxxxxxx Tower Mortgage Loan, the Boulevard Mall Mortgage Loan or any Credit
Lease Loan) and REO Property :
(1) Within 30 days after receipt of a quarterly operating statement, if
any, commencing with the calendar quarter ended December 31, 2003, a CMSA
Operating Statement Analysis Report presenting the computation made in
accordance with the methodology set forth in Exhibit F (but only to the extent
the related borrower is required by the Mortgage to deliver and does deliver, or
otherwise agrees to provide and does provide, such information) for such
Mortgaged Property or REO Property as of the end of such calendar quarter. The
Master Servicer will deliver to the Trustee by electronic means the CMSA
Operating Statement Analysis Report upon request; and
(2) Within 30 days after receipt by the Master Servicer of an annual
operating statement, a CMSA NOI Adjustment Worksheet (but only to the extent the
related borrower is required by the Mortgage to deliver and does deliver, or
otherwise agrees to provide and does provide, such information), presenting the
computation made in accordance with the methodology described in Exhibit F to
"normalize" the full year net operating income and debt service coverage numbers
used by the Master Servicer in preparing the CMSA Comparative
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Financial Status Report above. The Master Servicer will deliver to the Trustee
by electronic means the CMSA NOI Adjustment Worksheet upon request.
Upon request, the Trustee shall deliver or shall cause to be delivered to
each Certificateholder, to each party hereto, to any Underwriter, to the Rating
Agencies, and to each Person that provides the Trustee with an Investor
Certification a copy of the CMSA Operating Statement Analysis Report and CMSA
NOI Adjustment Worksheet most recently performed by the Master Servicer with
respect to any Mortgage Loan and delivered to the Trustee.
Upon request (and in any event, not more frequently than once per month),
the Master Servicer shall forward to the Trustee a statement, setting forth the
status of the Certificate Account as of the close of business on such Master
Servicer Remittance Date, stating that all remittances to the Trustee required
by this Agreement to be made by the Master Servicer have been made (or, in the
case of any such required remittance that has not been made by the Master
Servicer, specifying the nature and status thereof) and showing, for the period
from the preceding Master Servicer Remittance Date (or, in the case of the first
Master Servicer Remittance Date, from the Cut-off Date) to such Master Servicer
Remittance Date, the aggregate of deposits into and withdrawals from the
Certificate Account for each category of deposit specified in Section 3.04(a)
and each category of withdrawal specified in Section 3.05(a). The Master
Servicer shall also deliver to the Trustee, upon reasonable request of the
Trustee, any and all additional information relating to the Mortgage Pool in the
possession of the Master Servicer (which information shall be based upon reports
delivered to the Master Servicer by the Special Servicer with respect to
Specially Serviced Mortgage Loans and REO Properties).
With respect to any Mortgaged Property constituting collateral for a Credit
Lease Loan, not later than the third Business Day following each Determination
Date, the Master Servicer will deliver to the Trustee a Current Ratings Report
with respect to each Tenant and any Guarantor.
The Master Servicer, on the first Business Day following each Determination
Date, shall forward to the Special Servicer all information collected by the
Master Servicer which the Special Servicer is required to include in the reports
delivered by the Special Servicer pursuant to Section 4.02(c) below. Further,
the Master Servicer shall cooperate with the Special Servicer and provide the
Special Servicer with the information in the possession of the Master Servicer
reasonably requested by the Special Servicer, in writing, to the extent required
to allow the Special Servicer to perform its obligations under this Agreement
with respect to those Mortgage Loans and Serviced Companion Loans serviced by
the Master Servicer.
The obligation of the Master Servicer to deliver the reports required to be
delivered by it pursuant to this subsection is subject to the Master Servicer
having received from the Special Servicer (or the LB-UBS 2003-C5 Master
Servicer, the LB-UBS 2003-C5 Trustee, the GE 2003-C2 Master Servicer or the GE
2003-C2 Trustee, if applicable) 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 (or the LB-UBS 2003-C5 Master Servicer, the LB-UBS 2003-C5
Trustee, the GE 2003-C2 Master Servicer or the GE
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2003-C2 Trustee, if applicable) 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 Serviced Companion Loans available
on any website that it has established.
(f) The Master Servicer or the Special Servicer, as applicable, may,
from time to time in its sole discretion, answer questions from a Certificate
Owner which pertain to the performance and servicing of the Mortgage Loans
and/or REO Properties for which the Master Servicer or Special Servicer, as the
case may be, is responsible. The Master Servicer or the Special Servicer, as
applicable, as a condition to answering such questions, shall require, among
other things, that the Certificate Owner enter into a confidentiality agreement
with the Master Servicer or the Special Servicer, as the case may be, in the
form attached hereto as Exhibit H-2 and sign an Investor Certification in the
form attached hereto as Exhibit H-1. Neither the Master Servicer nor the Special
Servicer shall provide any information or disclosures in violation of any
applicable law, rule or regulation.
(g) The Master Servicer will deliver or cause to be delivered to the
Trustee copies of all reports and other information received by the Master
Servicer from the LB-UBS 2003-C5 Master Servicer of the LB-UBS 2003-C5 Trustee
with respect to the Xxxx Xxxxxxx Tower Mortgage Loan and the GE 2003-C2 Master
Servicer or the GE 2003-C2 Trustee with respect to the Boulevard Mall Mortgage
Loan. To the extent that any such information relates to
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aggregated or Mortgage Pool information, it shall be included in the Master
Servicer Reports provided under this Agreement, and to the extent such
information relates solely to the Xxxx Xxxxxxx Tower Mortgage Loan, the
Boulevard Mall Mortgage Loan or the related Mortgaged Property, it shall be
forwarded separately. For purposes of the content of any reports or other
information with respect to the Xxxx Xxxxxxx Tower Mortgage Loan or the
Boulevard Mall Mortgage Loan (but only with respect to reports or other
information), the "Determination Date" shall be the second Business Day prior to
the Distribution Date in the month in which such Distribution Date occurs.
Section 4.03 Delinquency Advances.
(a) On each Delinquency Advance Date, the Master Servicer shall either
(i) deposit into the Distribution Account from its own funds an amount equal to
the aggregate amount of Delinquency Advances with respect to the Mortgage Loans
(including, without limitation, the Xxxx Xxxxxxx Tower Mortgage Loan and the
Boulevard Mall Mortgage Loan), if any, to be made in respect of the related
Distribution Date, (ii) apply amounts held in the Certificate Account or, with
respect to the Mortgage Loans related to the Serviced Whole Loans, the related
Serviced Whole Loan Custodial Account allocable to such Mortgage Loans, for
future distribution to Certificateholders in subsequent months in discharge of
any such obligation to make Delinquency Advances, or (iii) make Delinquency
Advances in the form of any combination of amounts specified in clauses (i) and
(ii) aggregating the total amount of Delinquency Advances to be made; provided,
that if Late Collections (net of related Workout Fees) of the delinquent Monthly
Payments for which Delinquency Advances are to be made for the related
Distribution Date, are on deposit in the Certificate Account or, if applicable,
the amount allocable to a Mortgage Loan in the related Serviced Whole Loan
Custodial Account, and available to make such Advances, the Master Servicer
shall utilize such Late Collections to make such Advances pursuant to clause
(ii) above. Any amounts held in the Certificate Account, or with respect to the
Serviced Whole Loan, the related Serviced Whole Loan Custodial Account, for
future distribution and so used to make Delinquency Advances shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Certificate Account or the related Serviced
Whole Loan Custodial Account on or before the next succeeding Determination Date
(to the extent not previously replaced through the deposit of Late Collections
of the delinquent principal and interest in respect of which such Delinquency
Advances were made). If, as of 3:00 p.m. (New York City time) on any Master
Servicer Remittance Date, the Trustee shall not have received any Delinquency
Advance required to be made by the Master Servicer pursuant to this Section
4.03(a) (and the Master Servicer shall not have delivered to the Trustee the
requisite Officer's Certificate and documentation related to a determination of
nonrecoverability of a Delinquency Advance), then the Trustee shall provide
notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone at telephone no. (000) 000-0000 (Attention: Master Servicing Manager)
(or such alternative number provided by the Master Servicer to the Trustee in
writing) as soon as possible, but in any event before 5:00 p.m. (New York City
time) on such day. If after such notice the Trustee does not receive the full
amount of such Delinquency Advances by 11:00 a.m. (New York City time) on the
Business Day immediately following such Master Servicer Remittance Date, then
the Trustee shall make the portion of such Delinquency Advances that was
required to be, but was not, made by the Master
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Servicer pursuant to this Section 4.03(a). No Delinquency Advances shall be made
by the Master Servicer or the Trustee with respect to any Serviced Companion
Loans or any other Companion Loans or B Notes.
With respect to Delinquency Advances relating to the Xxxx Xxxxxxx Tower
Mortgage Loan and the Boulevard Mall Mortgage Loan the Master Servicer shall
comply with the notice provisions (relating to the Xxxx Xxxxxxx Tower Mortgage
Loan and the Boulevard Mall Mortgage Loan, as applicable) set forth in Section
4.03 of the Xxxx Xxxxxxx Tower Co-Lender Agreement and Section 3.6 of the
Boulevard Mall Intercreditor Agreement, as applicable.
(b) The aggregate amount of Delinquency Advances to be made by the
Master Servicer in respect of the Mortgage Loans (including, without limitation,
Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Loans for any Distribution Date
(including the Xxxx Xxxxxxx Tower Mortgage Loan, the Boulevard Mall Mortgage
Loan and any REO Loan related thereto) 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 (and, with respect to the Xxxx Xxxxxxx Tower Mortgage Loan and the
Boulevard Mall Mortgage Loan, net of all workout fees payable under the LB-UBS
2003-C5 Pooling and Servicing Agreement or the GE 2003-C2 Pooling and Servicing
Agreement, as applicable), 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 (i) 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 and (ii)
with respect to the Xxxx Xxxxxxx Tower Mortgage Loan, that were not received by
the Master Servicer by the close of business on the related Due Date.
Notwithstanding the foregoing, if (i) an Appraisal Reduction Amount exists with
respect to any Mortgage Loan (other than the Xxxx Xxxxxxx Tower Mortgage Loan
and the Boulevard Mall Mortgage Loan) that is a Required Appraisal Loan, (ii)
the Master Servicer has been notified by the LB-UBS 2003-C5 Master Servicer that
an Appraisal Reduction Amount exists with respect to the Xxxx Xxxxxxx Tower
Mortgage Loan and that the Xxxx Xxxxxxx Tower Mortgage Loan is a "Required
Appraisal Loan" under the LB-UBS 2003-C5 Pooling and Servicing Agreement or
(iii) the Master Servicer has been notified by the GE 2003-C2 Master Servicer
than an Appraisal Reduction Amount exists with respect to the Boulevard Mall
Mortgage Loan and that the Boulevard Mall Mortgage Loan is a "Required Appraisal
Loan" under the GE 2003-C2 Pooling and Servicing Agreement, then, in the event
of subsequent delinquencies thereon, the interest portion of the Delinquency
Advance in respect of such Required Appraisal Loan, Xxxx Xxxxxxx Tower Mortgage
Loan or Boulevard Mall Mortgage Loan, as the case may be, for the related
Distribution Date shall be reduced (it being herein acknowledged that there
shall be no reduction in the principal portion of such Delinquency Advance) by
the product of (i) the amount of the interest portion of such Delinquency
Advance for such Required Appraisal Loan, the Xxxx Xxxxxxx Tower Mortgage Loan
or the Boulevard Mall Mortgage Loan, as applicable, for such Distribution Date
without regard to this sentence, 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, the Xxxx Xxxxxxx Tower Mortgage Loan or the
Boulevard Mall Mortgage Loan, as applicable, immediately prior to such
Distribution Date, net of the related Appraisal Reduction Amount, if any, and
the denominator of which is equal to the Stated Principal Balance of such
Required Appraisal Loan, the Xxxx
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Xxxxxxx Tower Mortgage Loan or the Boulevard Mall Mortgage Loan, as applicable,
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. The Master
Servicer, or the Trustee, as applicable, shall be entitled to rely conclusively
on any determination by (i) the LB-UBS 2003-C5 Master Servicer, the 2003-TOP11
Master Servicer, the LB-UBS 2003-C5 Trustee or the 2003-TOP11 Trustee that any
Delinquency Advance with respect to the Xxxx Xxxxxxx Tower Mortgage Loan would,
if made, constitute a Nonrecoverable Delinquency Advance and (ii) the GE 2003-C2
Master Servicer or the GE 2003-C2 Trustee that any Delinquency Advance with
respect to the Boulevard Mall Mortgage Loan would, if made, constitute a
Nonrecoverable Delinquency Advance. Notwithstanding the foregoing, in the event
that the Master Servicer has received written notice that any of the LB-UBS
2003-C5 Master Servicer, the 2003-TOP11 Master Servicer or the GE 2003-C2 Master
Servicer is no longer an "approved" servicer by Fitch and Standard & Poor's, the
Master Servicer shall not be entitled to rely on any determination of
nonrecoverability made by such party as described in the preceding sentence.
Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section
3.05(a) out of general collections on the Mortgage Loans and REO Properties on
deposit in the Certificate Account. The determination by the Master Servicer or,
if applicable, the Trustee, that it has made a Nonrecoverable Delinquency
Advance or that any proposed Delinquency Advance, if made, would constitute a
Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's
Certificate delivered promptly (and, in any event, in the case of a proposed
Delinquency Advance to be made by the Master Servicer, no less than two Business
Days prior to the related Delinquency Advance Date) by the Master Servicer to
the Trustee (or, if applicable, retained thereby) and the Depositor, setting
forth the basis for such determination, together with (i) in the case of the
Xxxx Xxxxxxx Tower Mortgage Loan or the Boulevard Mall Mortgage Loan, a copy of
the nonrecoverability determination of the LB-UBS 2003-C5 Master Servicer, the
2003-TOP11 Master Servicer, the LB-UBS 20032-C5 Trustee, the GE 2003-C2 Master
Servicer or the GE 2003-C2 Trustee, as applicable, or (ii) otherwise (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.
With respect to the Mortgage Loans related to the Serviced Whole Loans, the
Master Servicer shall make its determination that it has made a Nonrecoverable
Delinquency Advance or that any proposed Delinquency Advance, if made, would
constitute a Nonrecoverable
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Delinquency Advance in accordance with this Section 4.03(c) and independently of
any determination made by any servicer of any related Serviced Companion Loan
pursuant to a Serviced Companion Loan Securitization Agreement.
With respect to the Mortgage Loans related to the Serviced Whole Loans, the
Master Servicer shall make its determination that it has made a Nonrecoverable
Delinquency Advance or that any proposed Delinquency Advance, if made, would
constitute a Nonrecoverable Delinquency Advance no later than the earlier of (i)
the Delinquency Advance Date and (ii) the delinquency advance date for any
related Serviced Companion Loan pursuant to the applicable Serviced Companion
Loan Securitization Agreement. The Master Servicer, or the Trustee, as
applicable, shall be entitled to rely conclusively on any determination by any
servicer of a Serviced Companion Loan that has determined that, with respect to
such Serviced Companion Loan, any principal and interest advance with respect to
such Serviced Companion Loan would, if made, constitute a nonrecoverable
advance. Notwithstanding the foregoing, in the event that the Master Servicer
has received written notice that the master servicer of the securitization
relating to the any related Serviced Companion Loan is no longer an "approved"
servicer by Fitch and Standard & Poor's, the Master Servicer shall not be
entitled to rely on any determination of nonrecoverability made by such master
servicer as described in the preceding sentence.
Following a securitization of any Serviced Companion Loan, the Master
Servicer shall be required to deliver to the master servicer of such Serviced
Companion Loan: (i) any loan-related information applicable to a determination
that an Advance is or would be a Nonrecoverable Advance, in the form received,
within two Business Days of receipt, (ii) notice of any Advance it makes with
respect to the related Mortgage Loan pursuant to this Agreement; and (iii)
notice of any determination that any Advance is a Nonrecoverable Advance within
two Business Days thereof.
(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 pursuant to Section 3.05(a).
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(a),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed 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
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immediately following such Distribution Date. Such reductions shall be deemed to
be an allocation of Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the payments deemed to be
made to REMIC III in respect of the REMIC II Regular Interests on such date
pursuant to Section 4.01(b), the Trustee shall determine the amount, if any, by
which (i) the then aggregate Uncertificated Principal Balance of REMIC II
Regular Interests XX-0-0, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K, LA-1-2-L, LA-2, LB,
LC, LD, LE, LF-A, LF-B, LF-C, LF-D, LG-A, XX-X, XX-X, XX-X, XX-X, XX-X, XX-X,
XX-X, LK-A, LK-B, 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 (A) the aggregate Uncertificated Principal Balance of the REMIC
II Regular Interests XX-0-0, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X,
XX-0-0-X, LA-1-2-G, LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K and LA-1-2-L shall
correspond with the Certificate Principal Balance of the Class A-1 Certificates
and the Uncertificated Principal Balances of the REMIC II Regular Interests
XX-0-0, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, XX-0-0-X, LA-1-2-G,
LA-1-2-H, LA-1-2-I, LA-1-2-J, LA-1-2-K and LA-1-2-L shall be reduced in that
order (with REMIC II Regular Interest LA-1-1 being reduced first and REMIC II
Regular Interest LA-1-2-L being reduced last), (B) the aggregate Uncertificated
Principal Balance of the REMIC II Regular Interests LF-A, LF-B, LF-C and LF-D
shall correspond with the Certificate Principal Balance of the Class F
Certificates and the Uncertificated Principal Balances of the REMIC II Regular
Interests LF-A, LF-B, LF-C and LF-D shall be reduced in that order (with REMIC
II Regular Interest LF-A being reduced first and REMIC II Regular Interest LF-D
being reduced last), (C) the aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests LG-A, LG-B and LG-C shall correspond with the
Certificate Principal Balance of the Class G Certificates and the Uncertificated
Principal Balances of the REMIC II Regular Interests LG-A, LG-B and LG-C shall
be reduced in that order (with REMIC II Regular Interest LG-A being reduced
first and REMIC II Regular Interest LG-C being reduced last), (D) the aggregate
Uncertificated Principal Balance of the REMIC II Regular Interests LH-A and LH-B
shall correspond with the Certificate Principal Balance of the Class H
Certificates and the Uncertificated Principal Balances of the REMIC II Regular
Interests LH-A and LH-B shall be reduced in that order (with REMIC II Regular
Interest LH-A being reduced first and REMIC II Regular Interest LH-B being
reduced second), (E) the aggregate Uncertificated Principal Balance of the REMIC
II Regular Interests LJ-A, LJ-B and LJ-C shall correspond with the Certificate
Principal Balance of the Class J Certificates and the Uncertificated Principal
Balances of the REMIC II Regular Interests LJ-A, LJ-B and LJ-C shall be reduced
in that order (with REMIC II Regular Interest LJ-A being reduced first and REMIC
II Regular Interest LJ-C being reduced last) and (F) the aggregate
Uncertificated Principal Balance of the REMIC II Regular Interests LK-A and LK-B
shall correspond with the Certificate Principal Balance of the Class K
Certificates and the Uncertificated Principal Balances of the REMIC II Regular
Interests LK-A and LK-B shall be reduced in that order (with REMIC II Regular
Interest LK-A being reduced first and REMIC II Regular Interest LK-B being
reduced second).
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(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.
Section 4.05 Statements to Serviced Companion Loan Holders.
(a) With respect to each Serviced Whole Loan, to the extent the
required information is provided to the Serviced Companion Loan Paying Agent in
a timely manner by the Master Servicer and the Special Servicer, the Serviced
Companion Loan Paying Agent shall prepare, or cause to be prepared, on an
ongoing basis a statement setting forth, to the extent applicable to the
Serviced Whole Loan:
(i) For each Serviced Companion Loan Holder, (A) the amount of
the distribution from the related Serviced Whole Loan Custodial Account
allocable to principal and (B) separately identifying the amount of scheduled
principal payments, Balloon Payments, Principal Prepayments made at the option
of the Mortgagor or other Principal Prepayments (specifying the reason
therefor), net liquidation proceeds and foreclosure proceeds included therein
and information on distributions made with respect to the related Mortgage Loan;
(ii) For each Serviced Companion Loan Holder, the amount of the
distribution from the related Serviced Whole Loan Custodial Account allocable to
interest and the amount of Default Interest allocable to the related Mortgage
Loan;
(iii) If the distribution to a Serviced Companion Loan Holder is
less than the full amount that would be distributable to such Serviced Companion
Loan Holder if there were sufficient amounts available therefor, the amount of
the shortfall and the allocation thereof between interest and principal and the
amount of the shortfall, if any, under the related Mortgage Loan;
(iv) The principal balance of the related Mortgage Loan after
giving effect to the distribution of principal on such Distribution Date; and
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(v) The amount of the servicing fees paid to the Master Servicer
and the Special Servicer with respect to such Distribution Date, showing
separately the Special Servicing Fee, the Workout Fee and the Liquidation Fee.
Not later than each Distribution Date, the Serviced Companion Loan Paying
Agent shall make the foregoing statement available (i) to the Depositor, the
Rating Agencies, the Master Servicer and the Special Servicer by any electronic
means agreed upon by the Serviced Companion Loan Paying Agent and the Person
receiving such statement and (ii) to the Serviced Companion Loan Holders by
electronic means.
(b) With respect to each Serviced Whole Loan, to the extent such item
is delivered to the Serviced Companion Loan Paying Agent, the Serviced Companion
Loan Paying Agent shall also make available to each Serviced Companion Loan
Holder by electronic means (commencing on the date such item is delivered to the
Serviced Companion Loan Paying Agent): (i) the CMSA Financial File, CMSA Loan
Periodic Update File, CMSA Loan Set-Up File, CMSA Property File, CMSA
Comparative Financial Status Report, CMSA NOI Adjustment Worksheet, CMSA
Servicer Watch List and CMSA Operating Statement Analysis Report delivered to
the Serviced Companion Loan Paying Agent pursuant to Section 4.02(b) and (ii)
the CMSA Delinquent Loan Status Report, CMSA Historical Liquidation Report, CMSA
Historical Loan Modification and Corrected Mortgage Loan Report or CMSA REO
Status Report.
(c) The Serviced Companion Loan Paying Agent shall make available
electronically to each Serviced Companion Loan Holder a copy of the Distribution
Date Statement required to be prepared pursuant to this Agreement.
(d) The Serviced Companion Loan Holders shall be entitled to receive,
upon request, a copy of any notice or report required to be delivered (upon
request or otherwise) to the Trustee with respect to the related Mortgage Loan
or any related REO Property by any other party hereto. Any such other party
shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through A-21. 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,
Class D and Class E Certificates, $100,000 in the case of the Class F,
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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 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,
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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.
(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, such Plan is
permissible under applicable law, will not
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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, such Plan is
permissible under applicable law, will not result in any non-exempt prohibited
transaction under ERISA or Section 4975 of the Code, and will not subject the
Depositor, the Trustee or the Master Servicer to any obligation in addition to
those undertaken herein, and the following conditions are met: (i) such Plan
qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D
of the Securities Act, (ii) the source of funds used to purchase such
Certificate is an "insurance company general account" (as such term is defined
in PTCE 95-60) and (iii) the conditions set forth in Sections I and III of PTCE
95-60 have been satisfied as of the date of the acquisition of such
Certificates. The Trustee may require that any prospective transferee of a
Certificate that is held as a Definitive Certificate provide such certifications
as the Trustee may deem desirable or necessary in order to establish that such
transferee or the Person in whose name such registration is requested is not a
Plan or a Person who is directly or indirectly purchasing such Certificate on
behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a Plan
or that the conditions of an acceptable alternative have been satisfied. The
Trustee shall not have any responsibility to monitor or restrict the transfer of
Ownership Interests in any Certificates that are in the form of a Book-Entry
Certificate.
(d) (i) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause (ii)(A) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Trustee under clause (ii)(B) below to negotiate the terms of any mandatory
sale and to execute all instruments of Transfer and to do all other things
necessary in connection with any such sale. The rights of each Person acquiring
any Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and a United
States Person and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall require delivery
to it, and no Transfer of any Residual Certificate shall be registered
until the Trustee receives, an affidavit and agreement substantially
in the form attached hereto as Exhibit C-1 (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance
satisfactory to the
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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 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,
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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.
(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.
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(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
January 1, 2004.
Section 5.03 Book-Entry Certificates.
(a) Each Class of Certificates other than the Residual Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in subsection (c) below
shall not be entitled to definitive, fully registered Certificates ("Definitive
Certificates") in respect of such Ownership Interests. The Trustee shall not
have any responsibility to monitor or restrict the transfer of Ownership
Interests in any Book-Entry Certificate. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the
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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
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
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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 Serviced Companion Loans and to perform its respective duties under this
Agreement.
(b) The Depositor, the Master Servicer and the Special Servicer may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person, in which case any Person resulting from any
merger or consolidation to which the Depositor, the Master Servicer or the
Special Servicer shall be a party, or any Person succeeding to the business of
the Depositor, the Master Servicer and the Special Servicer, shall be the
successor of the Depositor, the Master Servicer and the Special Servicer, as the
case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, that (i) with respect to the Master Servicer
or the Special Servicer, such Person is qualified to service multifamily
mortgage loans on behalf of FNMA or FHLMC and (ii) such merger, consolidation or
succession will not result in the downgrade, qualification or withdrawal of the
then-current ratings of the
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Classes of Certificates or any applicable Serviced Companion Loan Securities
that have been so rated (as evidenced by a letter to such effect from each
Rating Agency).
(c) Notwithstanding anything else in this Section 6.02 and Section
6.04 to the contrary, the Master Servicer and the Special Servicer may assign
all of its rights and delegate all of its duties and obligations under this
Agreement; provided, that the Person accepting such assignment or delegation
shall be a Person that is qualified to service multifamily mortgage loans on
behalf of FNMA or FHLMC, is reasonably satisfactory to the Trustee and the
Depositor, is willing to service the Mortgage Loans and Serviced Companion Loans
and executes and delivers to the Depositor and the Trustee an agreement, in form
and substance reasonably satisfactory to the Depositor and the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Master Servicer or the Special Servicer, as the case may be, under this
Agreement; provided, further, that such assignment or delegation will not result
in the downgrade, qualification or withdrawal of the then-current ratings of the
Classes of Certificates or any Serviced Companion Loan Securities that have been
rated (as evidenced by a Rating Agency Confirmation). In the case of any such
assignment and delegation, the Master Servicer or the Special Servicer, as the
case may be, shall be released from its obligations under this Agreement, except
that the Master Servicer or the Special Servicer, as the case may be, shall
remain liable for all liabilities and obligations incurred by it, or arising
from its conduct, hereunder prior to the satisfaction of the conditions to such
assignment and delegation set forth in the preceding sentence. Notwithstanding
anything above to the contrary, the Master Servicer may, in its sole discretion,
appoint Sub-Servicers in accordance with Section 3.23 hereof and independent
contractors or agents to perform select duties thereof; provided, that the
Master Servicer shall not be relieved from such duties solely by virtue of such
appointment.
Section 6.03 Limitation on Liability of the Depositor, the Master Servicer,
the Special Servicer and Others.
None of the Depositor, the Master Servicer, the Special Servicer or any of
the directors, officers, employees or agents of the Depositor, the Master
Servicer or the Special Servicer shall be under any liability to the Trust Fund
or the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer, the Special Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of negligent disregard of
obligations and duties hereunder. The Depositor, the Master Servicer, the
Special Servicer and any director, officer, employee or agent of the Depositor,
the Master Servicer or the Special Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer and
the Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer or the Special Servicer shall be indemnified by
the Trust Fund and held harmless against any loss, liability or expense incurred
in connection with any legal action relating to this Agreement, the Certificates
or any asset of the Trust Fund, other than any loss, liability or expense
specifically required to be borne by such Person pursuant to the terms hereof,
or which constitutes a Servicing Advance (and is otherwise specifically
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reimbursable hereunder), or which is incurred by such Person by reason of such
Person's willful misfeasance, bad faith or negligence in the performance of such
Person's duties hereunder or by reason of such Person's negligent disregard of
obligations and duties hereunder.
In no event shall the Master Servicer be liable for any determination made
by the Majority Certificateholder of the Controlling Class pursuant to paragraph
(3) of the definition of Specially Serviced Mortgage Loan.
None of the Depositor, the Master Servicer or the Special Servicer shall be
under any obligation to appear in, prosecute or defend any legal or
administrative action, proceeding, hearing or examination that is not incidental
to its respective duties under this Agreement and which in its opinion may
involve it in any ultimate expense or liability; provided, however, that the
Depositor, the Master Servicer or the Special Servicer may in its discretion
undertake any such action, proceeding, hearing or examination that it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action, proceeding, hearing or
examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor out of amounts
attributable to the Mortgage Loans on deposit in the Certificate Account as
provided by Section 3.05(a); provided, however, that if such action, proceeding,
hearing or examination relates to a Serviced Whole Loan, such expenses, costs
and liabilities shall be payable out of the related Serviced Whole Loan
Custodial Account and then shall be payable out of the Certificate Account if
amounts on deposit in the related Serviced Whole Loan Custodial Account are
insufficient therefor hereunder so long as such expenses, costs and liabilities
do not relate solely to a Serviced Companion Loan.
Section 6.04 Depositor, Master Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, none of the Depositor, the
Master Servicer or the Special Servicer shall resign from its respective
obligations and duties hereby imposed on it except upon determination that its
duties hereunder are no longer permissible under applicable law. Any such
determination permitting the resignation of the Depositor, the Master Servicer
or the Special Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee. No such resignation by the Master Servicer or
the Special Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the responsibilities and obligations of the Master
Servicer or the Special Servicer, as the case may be, in accordance with Section
7.02.
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
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not have any responsibility or liability for any action or failure to act by the
Master Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) (A) any failure by the Master Servicer to make a required
deposit to the Certificate Account which continues unremedied for one Business
Day following the date on which such deposit was first required to be made, or
(B) any failure by the Master Servicer to deposit into, or to remit to the
Trustee for deposit into, the Distribution Account any amount required to be so
deposited or remitted, which failure is not remedied by 11:00 a.m. (New York
City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account any
amount required to be so deposited or remitted under this Agreement which
failure continues unremedied for one Business Day following the date on which
such deposit or remittance was first required to be made; or
(iii) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it pursuant to this Agreement which
continues unremedied for a period ending on the earlier of (A) 15 days following
the date such Servicing Advance was first required to be made, and (B) either,
if applicable, (1) in the case of a Servicing Advance relating to the payment of
insurance premiums, the day on which such insurance coverage terminates if such
premiums are not paid or (2) in the case of a Servicing Advance relating to the
payment of real estate taxes, the date of the commencement of a foreclosure
action with respect to the failure to make such payment; or
(iv) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the Special
Servicer contained in this Agreement which continues unremedied for a period of
30 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by the Trustee or the Depositor, or to the Master
Servicer or the Special Servicer, as the case may be by the Holders of
Certificates entitled to not less than 25% of the Voting Rights or by any
affected Serviced Companion Loan Holder; provided, however, that if such
covenant or agreement is capable of being cured and the Master Servicer or
Special Servicer, as applicable, is diligently pursuing such cure, such 30 day
period shall be extended for an additional 30 days; or
(v) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement which
materially and
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adversely affects the interests of any Class of Certificateholders and which
continues unremedied for a period of 30 days after the date on which notice of
such breach, requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer by the Trustee or the Depositor, or to
the Master Servicer or the Special Servicer, as the case may be by the Holders
of Certificates entitled to not less than 25% of the Voting Rights; provided,
however, if such breach is capable of being cured and the Master Servicer or
Special Servicer, as applicable, is diligently pursuing such cure, such 30 day
period shall be extended for an additional 30 days; or
(vi) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer or the Special
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(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) the Trustee shall have received written notice from Fitch
that the continuation of the Master Servicer or the Special Servicer in such
capacity would result in the downgrade, qualification or withdrawal of any
rating then assigned by such Rating Agency to any Class of Certificates; 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.
Notwithstanding the foregoing, for any failure to remit funds with respect
to the Xxxx Xxxxxxx Tower Mortgage Loan or the Boulevard Mall Mortgage Loan will
only be an Event of Default of the Master Servicer or the Special Servicer, as
applicable, to the extent that such funds are received from the LB-UBS 2003-C5
Master Servicer or the GE 2003-C2 Master Servicer, as applicable.
(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
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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
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 Serviced
Companion Loans and the proceeds thereof (other than any rights of the
Defaulting Party as Certificateholder). From and after the receipt by the
Defaulting Party of such written notice, all authority and power of the
Defaulting Party under this Agreement, whether with respect to the Certificates
(other than as a Holder of any Certificate) or the Mortgage Loans or the
Serviced Companion Loans or otherwise, shall pass to and be vested in the
Trustee pursuant to and under this Section, and, without limitation, the Trustee
is hereby authorized and empowered to execute and deliver, on behalf of and at
the expense of the Defaulting Party, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans, the Serviced Companion Loans and related documents, or
otherwise. The Master Servicer and the Special Servicer each agrees that if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee or any other successor Master Servicer or
Special Servicer with all documents and records requested by it to enable it to
assume the Master Servicer's or Special Servicer's, as the case may be,
functions hereunder, and shall cooperate with the Trustee or any other successor
Master Servicer or Special Servicer in effecting the termination of the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including, without limitation, the transfer within two
Business Days to the Trustee or any other successor Master Servicer or Special
Servicer for administration by it of all cash amounts which shall at the time be
or should have been credited by the Master Servicer or the Special Servicer to
the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account, any REO Account or any Servicing Account or thereafter be
received with respect to the Mortgage Loans, Companion Loans or any REO
Property; provided, however, that the Master Servicer and the Special Servicer
each shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the date of such termination, whether in
respect of Advances made by it or otherwise, and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination.
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
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monies required by Section 7.01 shall not be considered a default by the Trustee
hereunder. The Trustee shall not be liable for any of the representations and
warranties of the Master Servicer or the Special Servicer or for any losses
incurred by the Master Servicer or the Special Servicer pursuant to Section 3.06
hereunder nor shall the Trustee be required to purchase any Mortgage Loan or
Serviced Companion Loan hereunder. As compensation therefor, the Trustee shall
be entitled to the applicable Servicing Fee and Special Servicing Fee and all
funds relating to the Mortgage Loans or Serviced Companion Loans which the
Master Servicer or the Special Servicer (other than any Workout Fees owed
pursuant to Section 3.11(c)) would have been entitled to charge to the
Certificate Account, any Serviced Whole Loan Custodial Account or the
Distribution Account if the Master Servicer or the Special Servicer had
continued to act hereunder. Notwithstanding the above, the Trustee may, if it
shall be unwilling to so act, or shall, if it is unable to so act or if the
Holders of Certificates entitled to at least 51% of the Voting Rights so request
in writing to the Trustee or if the Trustee is not approved as a master servicer
or special servicer, as the case may be, by each Rating Agency rating the
Certificates or any Serviced Companion Loan Securities, promptly appoint any
FNMA or FHLMC-approved mortgage loan servicing institution that has a net worth
of not less than $10,000,000 and is otherwise acceptable to each such Rating
Agency (as evidenced by Rating Agency Confirmation), as the successor to the
Master Servicer hereunder or the Special Servicer, as the case may be, in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer or the Special Servicer, as the case may be, hereunder. No
appointment of a successor to the Master Servicer or the Special Servicer, as
the case may be, hereunder shall be effective until the assumption of the
successor to the Master Servicer or the Special Servicer, as the case may be, of
all the responsibilities, duties and liabilities of the Master Servicer or the
Special Servicer, as the case may be, hereunder. Pending appointment of a
successor to the Master Servicer or the Special Servicer, as the case may be,
hereunder, the Trustee shall act in such capacity as hereinabove provided. In
connection with any such appointment and assumption described herein, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans, Serviced Companion Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
The Trustee shall be reimbursed for all of its out-of-pocket expenses incurred
in connection with obtaining such successor servicer by the Trust within 60 days
of the Trustee's submission of an invoice with respect thereto and after making
reasonable efforts to collect such amounts from the successor servicer, to the
extent such expenses have not been reimbursed by the successor servicer; such
expenses paid by the Trust Fund shall be deemed to be an Additional Trust Fund
Expense.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01 or any appointment of a successor to
the Master Servicer or the Special Servicer pursuant to Section 7.02, the
Trustee shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register and to each Serviced
Companion Loan Holder.
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(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders and to each Serviced Companion Loan Holder notice of such
occurrence, unless such default shall have been cured.
Section 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the Voting
Rights allocated to the Classes of Certificates affected by any Event of Default
may waive such Event of Default; provided, however, that an Event of Default
under clause (i) or (ii) of Section 7.01 may be waived only by all of the
Certificateholders of the affected Classes, together with the holders of 100% of
the voting rights of each affected series of Serviced Companion Loan Securities.
Upon any such waiver of an Event of Default, such Event of Default shall cease
to exist and shall be deemed to have been remedied for every purpose hereunder.
No such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if any other Person held such Certificates.
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.
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(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 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% (or other percentage specified in this Agreement) 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:
(a) 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;
(b) 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;
(c) 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, pursuant to the provisions of this Agreement, unless such
Certificateholders 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
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liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default which has not been cured, to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(d) 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;
(e) Prior to the occurrence of an Event of Default hereunder and after
the curing of all Events of Default which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at least
50% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, provided,
that the Trustee shall not be relieved from such duties, and the Trustee shall
remain responsible for all acts and omissions of any such agent;
(g) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office, and such notice references the Certificates or this Agreement; and
(h) 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 not make any representations as to the validity or sufficiency of
this Agreement (except to the extent set
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forth in Section 8.13) or of any Certificate (other than as to the signature of
the Trustee set forth thereon) or of any Mortgage Loan or any related document.
The Trustee shall not be accountable for the use or application by the Depositor
of any of the Certificates issued to it or of the proceeds of such Certificates,
or for the use or application of any funds paid to the Depositor in respect of
the assignment of the Mortgage Loans to the Trust Fund, or any funds deposited
in or withdrawn from the Certificate Account or any other account by or on
behalf of the Depositor, the Master Servicer or the Special Servicer. 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 or the Special Servicer, 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 Distribution Account pursuant to Section 3.05(b) for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee. On or
prior to the Distribution Date in each month, the Trustee shall be entitled to
withdraw and pay itself from amounts then on deposit in the Distribution Account
an amount equal to the then unpaid Trustee Fees.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be indemnified and held harmless by the Trust Fund (to the extent
of amounts on deposit in the Distribution Account from time to time) against any
loss, liability or expense (including, without limitation, costs and expenses of
litigation, and of investigation, counsel fees, damages, judgments and amounts
paid in settlement) arising out of, or incurred in connection with, any act or
omission of the Trustee relating to the exercise and performance of any of the
powers and duties of the Trustee hereunder; provided, that none of the Trustee
or any of the other above specified Persons, shall be entitled to
indemnification pursuant to this Section 8.05(b) for (i) allocable overhead,
(ii) expenses or disbursements incurred or made by or on behalf of the Trustee
in the normal course of the Trustee's performing their routine duties in
accordance with any of the provisions hereof, (iii) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof, or (iv)
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of the Trustee's obligations and duties
hereunder, or by reason of negligent disregard of such obligations or duties, or
as may arise from a breach of any representation, warranty or covenant of the
Trustee 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.
(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
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or the District of Columbia, authorized under such laws to exercise trust
powers, having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authority. If such
association or corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such association or corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The long-term unsecured debt obligations of the Trustee shall at all
times be rated not less than "AA-" by Standard & Poor's (or "A+" if the
short-term unsecured debt rating of the Trustee is at least "A-1" by Standard &
Poor's) and "AA-" by Fitch (or "A+" if the short-term unsecured debt rating of
the Trustee is at least "F-1" by Fitch) and the short-term unsecured debt
obligations of the Trustee shall at all times be rated not less than "A-1" by
Standard & Poor's or, in each case, such other rating as shall not result in the
qualification, downgrade or withdrawal of any of the ratings then assigned to
the respective Classes of Certificates, as confirmed in writing by the
applicable Rating Agency. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 8.06(a), 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
or any Serviced Companion Loan Securities, then upon the execution and delivery
of such agreement or the effectiveness of such appointment, the Trustee shall
not be required to resign, and may continue in such capacity, for so long as
none of the ratings assigned by the Rating Agencies to the Certificates or any
Serviced Companion Loan Securities is adversely affected thereby. The
corporation or association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Master Servicer, the Special Servicer and
their respective Affiliates.
(b) The Trustee 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, all Certificateholders and the Serviced
Companion Loan Holders. 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, the
Certificateholders and the Serviced Companion Loan Holders 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
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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 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, the Certificateholders and the Serviced
Companion Loan Holders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee 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 and the Serviced Companion Loan Holders 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.
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(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, the Certificateholders and the Serviced Companion
Loan Holders.
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.
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(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.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians.
(a) The Trustee may, with the consent of the Master Servicer and the
Majority Certificateholder of the Controlling Class, appoint one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to supervision
by federal or state authority, shall itself (or together with an affiliate
guaranteeing its financial performance) have a combined capital and surplus of
at least $15,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File, shall maintain and keep in full force and
effect throughout the term of this Agreement a fidelity bond and an errors and
omissions insurance policy covering its officers and employees and other persons
acting on its behalf in connection with its activities under this Agreement in
the amount of coverage customary for custodians acting in such capacity, and
shall not be the Depositor, a Mortgage Loan Seller or any Affiliate of the
Depositor or a Mortgage Loan Seller. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian.
(b) Any Custodian appointed by the Trustee under this Agreement shall
not assign any of its rights or delegate any of its duties under this Agreement
to any other Person without the prior written consent of the Depositor and the
Majority Certificateholder of the Controlling Class (such consent not to be
unreasonably withheld, conditioned or delayed).
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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
shall, upon reasonable advance notice, make available during normal business
hours for review by any Holder, Certificate Owner or prospective transferee of a
Certificate or interest therein, originals or copies of the following items: (i)
in the case of a Holder, Certificate Owner or prospective transferee of a
Non-Registered Certificate or interest therein, any private placement memorandum
or other disclosure document relating to the Class of Certificates to which such
Non-Registered Certificate belongs, in the form most recently provided to the
Trustee; and (ii) in all cases, (A) this Agreement and any amendments hereto
entered into pursuant to Section 11.01, (B) all reports required to be delivered
to Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, (C) all Officer's Certificates delivered to the Trustee since the
Closing Date pursuant to Section 3.13, (D) all accountants' reports delivered to
the Trustee since the Closing Date pursuant to Section 3.14, (E) the most recent
inspection report prepared by the Master Servicer or Special Servicer and
delivered to the Trustee in respect of each Mortgaged Property pursuant to
Section 3.12, (F) as to each Mortgage Loan pursuant to which the related
Mortgagor is required to deliver such items or the Master Servicer or Special
Servicer has otherwise acquired such items, the most recent annual operating
statement and rent roll of the related Mortgaged Property and financial
statements of the related Mortgagor collected by the Master Servicer or the
Special Servicer and delivered to the Trustee pursuant to Section 3.12, (G) any
and all notices and reports delivered to the Trustee with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied (but only for so long as such Mortgaged Property or the
related Mortgage Loan are part of the Trust Fund), (H) the respective Mortgage
Files, including, without limitation, any and all modifications, waivers and
amendments of the terms of a Mortgage Loan entered into by the Master Servicer
or the Special Servicer and delivered to the Trustee pursuant to Section 3.21
(but only for so long as the affected Mortgage Loan is part of the Trust Fund),
(I) copies of any Appraisals required or permitted to be performed pursuant to
the terms of this Agreement and delivered to the Trustee, and (J) any and all
Officer's Certificates and other evidence delivered to or retained by the
Trustee to support the Master Servicer's, Special Servicer's or 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.
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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).
(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 Serviced Companion Loans and the
Trust Fund within its control which may be required by this Agreement or by
applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it.
Section 8.13 Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants to the Master Servicer, for its
own benefit and the benefit of the Certificateholders, and to the Special
Servicer and the Depositor, as of the Closing Date, that:
(a) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States of
America.
(b) 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.
(c) 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 creditors' rights generally, and general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
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(d) 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.
(e) 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.
(f) No consent, approval, authorization or order of, registration or
filing with or notice to, any governmental authority or court is required, under
federal or state law, for the execution, delivery and performance of or
compliance by the Trustee with this Agreement, or the consummation by the
Trustee of any transaction contemplated hereby, other than (1) such consents,
approvals, authorization, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not have a
material adverse effect on performance by the Trustee under this Agreement.
Section 8.14 Filings with the Securities and Exchange Commission.
(a) Each of the Trustee, the Master Servicer and the Special Servicer
shall reasonably cooperate with the Depositor in connection with the Trust
Fund's satisfying the reporting requirements under the Exchange Act. Based on
information furnished to it by the Master Servicer and the Depositor (in an 80
column unformatted electronic format acceptable to the Trustee), the Trustee
will prepare on behalf of the Trust Fund, Forms 8-K and 10-K customary for
similar securities and any other such periodic reports required to be filed
under the provisions of the Exchange Act, and the Rules and Regulations of the
Commission thereunder and file (via the Commission's Electronic Data Gathering
and Retrieval System) such forms on behalf of the Depositor. Each Form 8-K shall
be filed by the Trustee within 15 days after each Distribution Date, including a
copy of the Distribution Date Statement for such Distribution Date as an exhibit
thereto. Prior to March 30th of each year (or such earlier date as may be
required by the Exchange Act and the Rules and Regulations of the Commission)
the Trustee shall file a Form 10-K, in substance as required by applicable law
or applicable Commission staff's interpretations. Any Form 10-K filed with the
Commission in connection with this Section 8.14 shall include a certification,
signed by the senior officer of the Depositor, in the form attached as Exhibit
M-1 hereto or such other form as may be required or permitted by the Commission
(the "Form 10-K Certification"), in compliance with Rules 13a-14 and 15d-14
under the Exchange Act and any additional directives of the Commission. The Form
10-K Certification shall be delivered to the Trustee for filing by March 20th of
each year (or if not a Business Day, the immediately preceding Business Day).
The Depositor hereby grants to the Trustee a limited power of attorney to
execute and file each such Form 10-K on behalf of the Depositor; provided that
the Trustee shall not execute and file such Form 10-K without the consent of the
Depositor. Such power of attorney shall continue until the earlier of either (i)
receipt by the Trustee from the Depositor of written termination of such power
of attorney and (ii) the termination of the Trust. Notwithstanding the
foregoing, in the event that the Commission does not accept a Form 10-K
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Certification signed by the Depositor where the related Form 10-K is signed by
the Trustee on behalf of the Depositor, the Trustee shall prepare such Form 10-K
to be signed by the Depositor and the Depositor shall sign such form. In
connection with the Form 10-K Certification, the Trustee shall provide the
Depositor with a back-up certification substantially in the form attached hereto
as Exhibit M-2, and each of the Master Servicer and the Special Servicer shall
provide the Depositor with a back-up certification substantially in the form
attached hereto as Exhibit M-3. Each such certification shall be delivered to
the Depositor by March 15th of each year (or if not a Business Day, the
immediately preceding Business Day). Such Form 10-K shall include as exhibits
the Master Servicer's and the Special Servicer's annual statement of compliance
described under Section 3.13 and the accountant's report described under Section
3.14, in each case to the extent they have been timely delivered to the Trustee.
If they are not so timely delivered, the Trustee shall file an amended Form 10-K
including such documents as exhibits reasonably promptly after they are
delivered to the Trustee. The Trustee shall have no liability with respect to
any failure to properly prepare or file such periodic reports resulting from or
relating to the Trustee's inability or failure to obtain any information not
resulting from its own negligence, willful misconduct or bad faith. Prior to
January 30th of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall, in accordance with the Exchange Act and the
Rules and Regulations of the Commission, timely file a Form 15 Suspension
Notification with respect to the Trust Fund.
(b) Each of the Trustee, the Master Servicer and the Special Servicer
shall severally and not jointly indemnify and hold harmless the Depositor and
its officers, directors, employees, agents and Affiliates from and against any
and all loss, liability or expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
any breach of any obligations of the Trustee, the Master Servicer or the Special
Servicer, as applicable, under this Section 8.14 or the negligence, bad faith or
willful misconduct of the Trustee, the Master Servicer or the Special Servicer,
as the case may be, in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Depositor, then (i)
the Trustee agrees that it shall contribute to the amount paid or payable to the
Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Trustee on the other in connection with a
breach of the Trustee's obligations under this Section 8.14 or the Trustee's
negligence, bad faith or willful misconduct in connection therewith, (ii) the
Master Servicer agrees that it shall contribute to the amount paid or payable by
the Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Master Servicer on the other in connection
with a breach of the Master Servicer's obligations under this Section 8.14 or
the Master Servicer's negligence, bad faith or willful misconduct in connection
therewith and (iii) the Special Servicer agrees that it shall contribute to the
amount paid or payable by the Depositor as a result of the losses, claims,
damages or liabilities of the Depositor in such proportion as is appropriate to
reflect the relative fault of the Depositor on the one hand and the Special
Servicer on the other in connection with a breach of the Special Servicer's
obligations under this Section 8.14 or the Special Servicer's negligence, bad
faith or willful misconduct in connection therewith.
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(c) Upon any filing with the Commission, the Trustee shall promptly
deliver to the Depositor, Master Servicer and Special Servicer a copy of any
such executed report, statement or information.
(d) This Section 8.14 may be amended in accordance with this Agreement
without the consent of the Certificateholders.
Section 8.15 Serviced Companion Loan Paying Agent.
(a) The Serviced Companion Loan Paying Agent undertakes to perform
such duties and only such duties as are specifically set forth herein.
(b) No provision of this Agreement shall be construed to relieve the
Serviced Companion Loan Paying Agent from liability for its own negligent
failure to act, bad faith or its own willful misfeasance; provided, however,
that the duties and obligations of the Serviced Companion Loan Paying Agent
shall be determined solely by the express provisions of this Agreement, the
Serviced Companion Loan Paying Agent shall not be liable except for the
performance of such duties and obligations, no implied covenants or obligations
shall be read into this Agreement against the Serviced Companion Loan Paying
Agent and, in the absence of bad faith on the part of the Serviced Companion
Loan Paying Agent, the Serviced Companion Loan Paying Agent may conclusively
rely, as to the truth and correctness of the statements or conclusions expressed
therein, upon any resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Serviced Companion Loan
Paying Agent by any Person and which on their face do not contradict the
requirements of this Agreement.
(c) Upon the resignation or removal of the Trustee pursuant to Article
VII of this Agreement, the Serviced Companion Loan Paying Agent shall be deemed
simultaneously to resign or be removed under this Agreement and the successor
Trustee shall thereafter be the Serviced Companion Loan Paying Agent. The
Serviced Companion Loan Paying Agent's duties and obligations hereunder shall
terminate in the event the Serviced Companion Loans are no longer serviced
pursuant to this Agreement.
(d) The Serviced Companion Loan Paying Agent and any of its directors,
officers, employees or agents shall be indemnified and held harmless by the
Serviced Companion Loan Holders (to the extent the losses, liabilities, damages,
claims and expenses related to a Serviced Companion Loan) (pro rata in
accordance with the principal balances of such Serviced Companion Loans), to the
extent of amounts in the related Serviced Whole Loan Custodial Account allocable
to such Serviced Companion Loans against any and all losses, liabilities,
damages or claims incurred in connection with any legal action relating to this
Agreement or unanticipated "out-of-pocket" expenses (other than the expense of
any employee's compensation and any expense allocable to the Serviced Companion
Loan Paying Agent's overhead, but including reasonable attorney's fees) arising
in respect of this Agreement other than those resulting from the negligence, bad
faith or intentional misconduct of the Serviced Companion Loan Paying Agent.
(e) Any notice, certificate, certification or other information
delivered or provided to the the Trustee hereunder, to the extent such
information is also required to be
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delivered or provided to the Serviced Companion Loan Paying Agent hereunder,
shall be deemed to also be delivered to the Serviced Companion Loan Paying Agent
at such time.
(f) This Section shall survive the termination of this Agreement or
the resignation or removal of the Serviced Companion Loan Paying Agent, as
regards rights accrued prior to such resignation or removal.
Section 8.16 Serviced Companion Loan Holder Register.
The Serviced Companion Loan Paying Agent shall maintain a register (the
"Serviced Companion Loan Holder Register") on which it will record the names and
addresses of the Serviced Companion Loan Holders and wire transfer instructions
for such Serviced Companion Loan Holders from time to time, to the extent such
information is provided in writing to it by Serviced Companion Loan Holder. Each
Serviced Companion Loan Holder has agreed to inform the Serviced Companion Loan
Paying Agent of its name, address, taxpayer identification number and wiring
instructions and of any transfer thereof (together with any instruments of
transfer).
In no event shall the Serviced Companion Loan Paying Agent be obligated to
pay any party the amounts payable to a Serviced Companion Loan Holder hereunder
other than the party listed as the applicable Serviced Companion Loan Holder on
the Serviced Companion Loan Holder Register. In the event that a Serviced
Companion Loan Holder transfers the related Serviced Companion Loan without
notice to the Serviced Companion Loan Paying Agent, the Serviced Companion Loan
Paying Agent shall have no liability whatsoever for any misdirected payment on
such Companion Loan and shall have no obligation to recover and redirect such
payment.
The Serviced Companion Loan Paying Agent shall promptly provide the names
and addresses of any Serviced Companion Loan Holder to any party hereto or any
successor thereto upon written request, and any such party or successor may,
without further investigation, conclusively rely upon such information. The
Serviced Companion Loan Paying Agent shall have no liability to any Person for
the provision of any such names and addresses.
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All Mortgage
Loans.
(a) Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as set forth herein) shall terminate upon payment (or
provision for payment) to the Certificateholders and the Serviced Companion Loan
Holders, if any, 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, the Majority Certificateholder of
the Controlling Class or the Depositor pursuant to subsection (b), of all
Mortgage Loans and each REO Property remaining in REMIC I at a price (to be
determined as
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of the end of the Collection Period for the anticipated Final Distribution Date)
equal to (A) the aggregate Purchase Price of all the Mortgage Loans included in
REMIC I, plus (B) the fair market value, as determined by the Special Servicer,
of each REO Property, if any, included in REMIC I, minus (C) solely in the case
where the Master Servicer is effecting such purchase, the aggregate amount of
unreimbursed Advances, together with any Advance Interest accrued and payable to
the Master Servicer in respect of such Advances and any unpaid Servicing Fees,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase); provided,
however, that any such purchase with respect to the Additional Servicing Fee
Mortgage Loans shall be subject to the rights of the applicable Designated
Sub-Servicer to continue to sub-service such Additional Servicing Fee Mortgage
Loans and the rights of Archon, GSMC, the applicable Designated Sub-Servicer and
the Master Servicer, as applicable, to receive or retain their applicable
portion, if any, of the Additional Servicing Fee pursuant to the applicable
Designated Sub-Servicer Agreement, (ii) the exchange by the Remaining
Certificateholder pursuant to subsection (f) below, and (iii) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in REMIC I; provided, however, that in no event
shall the trust created hereby continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
(b) The Master Servicer, the Majority Certificateholder of the
Controlling Class or the Depositor each may, at its option, elect to purchase
all of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (i) of the preceding paragraph by giving written notice
to the other parties hereto no later than 60 days prior to the anticipated date
of purchase; provided, however, that the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor may so elect to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Loans and any REO
Loans remaining in the Trust Fund at the time of such election is less than 1%
of the aggregate Cut-off Date Principal Balance of the Mortgage Loans set forth
in the Preliminary Statement. Such option shall be exercisable by each such
Person in the priority in which such Person is listed in the immediately
foregoing sentence. In the event that the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor purchases all of the
Mortgage Loans and each REO Property remaining in REMIC I in accordance with the
preceding sentence, the Master Servicer, the Majority Certificateholder of the
Controlling Class or the Depositor, as applicable, shall deposit in the
Distribution Account not later than the Master Servicer Remittance Date relating
to the Final Distribution Date an amount in immediately available funds equal to
the above-described purchase price (exclusive of any portion thereof that would
be payable to any Person other than the Certificateholders pursuant to Section
3.05(a) if on deposit in the Certificate Account, which portion shall be
deposited in the Certificate Account). In addition, the Master Servicer shall
(i) transfer to the Distribution Account all amounts required to be transferred
thereto on such Master Servicer Remittance Date from the Certificate Account
pursuant to the second paragraph of Section 3.04(b), together with any other
amounts on deposit in the Certificate Account that would otherwise be held for
future distribution. Upon confirmation that such final transfers have been made,
the Trustee shall release or cause to be released to the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor, as
applicable, the Mortgage Files for the remaining Mortgage Loans and any Reserve
Funds and Escrow Payments in any Reserve
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Accounts or Servicing Account, as applicable, and shall execute all assignments,
endorsements and other instruments furnished to it by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor, as
applicable, as shall be necessary to effectuate transfer of the Mortgage Loans
and REO Properties remaining in REMIC I. All Servicing Files for the remaining
Mortgage Loans and REO Properties shall be delivered to the purchasing entity.
(c) Notice of any termination shall be given promptly by the Trustee
by letter to Certificateholders and the Serviced Companion Loan Holders and, if
not previously notified pursuant to the preceding paragraph, to the other
parties hereto mailed (a) in the event such notice is given in connection with
the Master Servicer's, the Majority Certificateholder of the Controlling Class's
or the Depositor's purchase of all of the Mortgage Loans and each REO Property
remaining in REMIC I, not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of the final distribution on the
Certificates or (b) otherwise during the month of such final distribution on or
before the Determination Date in such month, in each case specifying (i) the
Distribution Date upon which the Trust Fund will terminate and final payment of
the Certificates will be made, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Distribution Account that are allocable to payments on the Class
to which the Certificates so presented and surrendered belong. Amounts on
deposit in the Distribution Account as of the Final Distribution Date (exclusive
of any portion of such amounts payable or reimbursable to any Person pursuant to
clauses (ii) through (viii) of Section 3.05(b)) shall be allocated for the
purposes, in the amounts and in accordance with the priority set forth in
Section 4.01. Any funds in the Distribution Account not distributed on such
Distribution Date shall be set aside and held uninvested in trust for the
benefit of Certificateholders not presenting and surrendering their Certificates
in the aforesaid manner, and shall be disposed of in accordance with the last
paragraph of Section 4.01(g).
(e) For purposes of this Section 9.01, the Remaining Certificateholder
shall have the first option to terminate the Trust Fund, pursuant to subsection
(f) below, and then the Master Servicer, and then the Depositor, in each of the
last two cases, pursuant to subsection (b).
(f) Following the date on which the aggregate Certificate Balance of
the Class A, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates is reduced to zero, the Remaining Certificateholder shall have the
right to exchange all of its Certificates, including the Class X Certificates,
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) by giving written notice to all the parties hereto no later than
60 days prior to the anticipated date of exchange. In the event that the
Remaining Certificateholder elects to exchange all of its Certificates,
including the Class X Certificates, (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property remaining in the Trust Fund
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in accordance with the preceding sentence, such Remaining Certificateholder, not
later than the Final Distribution Date, shall deposit in the Certificate Account
an amount in immediately available funds equal to all amounts due and owing to
the Depositor, the Master Servicer, the Special Servicer and the Trustee
hereunder through the date of the liquidation of the Trust Fund that may be
withdrawn from the Certificate Account, but only to the extent that such amounts
are not already on deposit in the Certificate Account. Upon confirmation that
such final deposits have been made and following the surrender of all remaining
Certificates by the Remaining Certificateholder on the Final Distribution Date,
the Trustee shall, upon receipt of a Request for Release from the Master
Servicer, release or cause to be released to the Remaining Certificateholder or
any designee thereof, the Mortgage Files for the remaining Mortgage Loans and
shall execute all assignments, endorsements and other instruments furnished to
it by the Remaining Certificateholder as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties remaining in the Trust Fund,
and the Trust Fund shall be liquidated in accordance with Section 9.02.
Thereafter, the Trust Fund and the respective obligations and responsibilities
under this Agreement of the Depositor, the Master Servicer, the Special
Servicer, the Trustee (other than annual tax returns and maintenance of books
and records and the preparation and filing of final tax returns), shall
terminate. Such transfers shall be subject to any rights of any Sub-Servicers to
service (or to perform select servicing functions with respect to) the Mortgage
Loans. For federal income tax purposes, the Remaining Certificateholder shall be
deemed to have purchased the assets of REMIC I for an amount equal to the
remaining Certificate Balance of its remaining Certificates (other than the
Residual Certificates), plus accrued and unpaid interest with respect thereto,
and the Trustee shall credit such amounts against amounts distributed in respect
of such Certificates. The remaining Mortgage Loans and REO Properties are deemed
distributed to the Remaining Certificateholder in liquidation of the Trust Fund
pursuant to Section 9.02.
Section 9.02 Additional Termination Requirements.
(a) In the event the Master Servicer, the Majority Certificateholder
of the Controlling Class, or the Depositor purchases all of the Mortgage Loans
and each REO Property remaining in REMIC I, or the Remaining Certificateholder
exchanges all of its Certificates, as provided in Section 9.01, the Trust Fund
(and, accordingly, REMIC I, REMIC II and REMIC III) shall be terminated in
accordance with the following additional requirements, unless the Master
Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor, or the Remaining Certificateholder, as the case may be, obtains at
its own expense and delivers to the Trustee an Opinion of Counsel, addressed to
the Depositor, the Master Servicer and the Trustee, to the effect that the
failure of the Trust Fund to comply with the requirements of this Section 9.02
will not (subject to Section 10.01(f)) result in the imposition of taxes on
"prohibited transactions" of REMIC I, REMIC II or REMIC III as defined in
Section 860F of the Code or cause REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for each of
REMIC I, REMIC II and 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;
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(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall sell
all of the assets of REMIC I to the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor, as applicable, for
cash; and
(iii) immediately following the making of the final payment on
the Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the related Class of Residual
Certificates all cash on hand in the related REMIC (other than cash retained to
meet claims), and REMIC I, REMIC II and REMIC III shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Trustee to adopt a plan of complete liquidation of REMIC
I, REMIC II and REMIC III, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.
(a) The Trustee shall make an election to treat each of REMIC I, REMIC
II and REMIC III as a REMIC under the Code and, if necessary, under applicable
state law. Such election will be made on Form 1066 or other appropriate federal
tax or information return (including Form 8811) or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued. The REMIC I Regular Interests are hereby designated as
the "regular interests" (within the meaning of Section 860G(a)(1) of the Code),
and the Class R-I Certificates are hereby designated as the sole class of
"residual interests" (within the meaning of Section 860G(a)(2) of the Code), in
REMIC I. The REMIC II Regular Interests are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the Class
R-II Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
The REMIC III Regular Certificates are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) and the Class
R-III Certificates will be the sole class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC III. The Master Servicer,
the Special Servicer and the Trustee shall not (to the extent within the control
of each) permit the creation of any "interests" (within the meaning of Section
860G of the Code) in REMIC I, REMIC II or REMIC III other than the Certificates.
(b) The Closing Date is hereby designated as the "startup day" of each
of REMIC I, REMIC II and REMIC III within the meaning of Section 860G(a)(9) of
the Code.
(c) The Trustee, as agent for the tax matters person of each of REMIC
I, REMIC II and REMIC III, shall (i) act on behalf of the REMIC in relation to
any tax matter or controversy involving the Trust Fund and (ii) represent the
Trust Fund in any administrative or 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'
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fees, and costs of any such proceeding and any liability resulting therefrom
shall be expenses of the Trust Fund and the Trustee shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans and any
REO Properties on deposit in the Certificate Account as provided by Section
3.05(a) unless such legal expenses and costs are incurred by reason of the
Trustee's willful misfeasance, bad faith or negligence or otherwise payable by
the Trustee pursuant to Section 10.01(g)(i). In the case of each of REMIC I,
REMIC II and REMIC III, the Holder of Residual Certificates representing the
largest Percentage Interest in the related Class thereof shall be designated, in
the manner provided under Treasury Regulations Section 1.860F-4(d) and temporary
Treasury Regulations Section 301.6231(a)(7)-1, as the tax matters person of such
REMIC. By its acceptance thereof, the Holder of Residual Certificates
representing the largest Percentage Interest in each Class thereof hereby agrees
to irrevocably appoint the Trustee as its agent to perform all of the duties of
the tax matters person for the related REMIC created hereunder.
(d) The Trustee shall prepare or cause to be prepared, sign and file,
in a timely manner, all of the Tax Returns that it determines are required with
respect to the Grantor Trust and each REMIC created hereunder. The expenses of
preparing such returns shall be borne by the Trustee without any right of
reimbursement therefor.
(e) The Trustee shall provide (i) to any Transferor of a Residual
Certificate such information as is necessary for the application of any tax
relating to the transfer of such Residual Certificate to any Person who is not a
Permitted Transferee as provided in Section 5.02(d)(iii), (ii) to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone
number of the person who will serve as the representative of each of REMIC I,
REMIC II and REMIC III.
(f) The Trustee shall take such actions and shall cause each REMIC
created hereunder to take such actions as are reasonably within the Trustee's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status thereof as a REMIC under the REMIC
Provisions. The Trustee shall not knowingly or intentionally take any action,
cause REMIC I, REMIC II or REMIC III to take any action or fail to take (or fail
to cause to be taken) any action reasonably within its control and the scope of
duties more specifically set forth herein, that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) adversely affect the status of
REMIC I, REMIC II or REMIC III as a REMIC or (ii) result (subject to the
following sentence) in the imposition of a tax upon REMIC I, REMIC II or REMIC
III (including but not limited to the tax on prohibited transactions as defined
in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code) (either such event, an "Adverse REMIC
Event") unless the Trustee receives an Opinion of Counsel (at the expense of the
party seeking to take such action or, if such party fails to pay such expense,
and the Trustee determines that taking such action is in the best interest of
REMIC I, REMIC II or REMIC III and the Certificateholders, at the expense of the
Trust Fund, but in no event at the expense of the Trustee) to the effect that
the contemplated action will not, with respect to any REMIC created hereunder
adversely affect such status or, unless the Master Servicer, the Trustee, or the
Special Servicer, as applicable (or other Person acceptable to the Trustee),
determines that the monetary exposure to REMIC I, REMIC II and REMIC III is not
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material and in its sole discretion agrees to indemnify, to the extent
reasonably acceptable to the Trustee, the Trust Fund against the imposition of
such tax. Wherever in this Agreement a contemplated action may not be taken
because the timing of such action might result in the imposition of a tax on the
Trust Fund, or may only be taken pursuant to an Opinion of Counsel that such
action would not impose a tax on the Trust Fund, such action may nonetheless be
taken; provided, that the indemnity given in the preceding sentence with respect
to any taxes that might be imposed on the Trust Fund has been given and that all
other preconditions to the taking of such action have been satisfied. The
Trustee shall not take or fail to take any action (whether or not authorized
hereunder) as to which the Master Servicer has advised it in writing that it has
received an Opinion of Counsel to the effect that an Adverse REMIC Event could
occur with respect to such action. In addition, prior to taking any action with
respect to the Trust Fund or its assets, or causing the Trust Fund to take any
action, which is not expressly permitted under the terms of this Agreement, each
of the parties hereto will consult with the Trustee or its designee, in writing,
with respect to whether such action could cause an Adverse REMIC Event to occur
with respect to REMIC I, REMIC II or REMIC III, and such party shall not take
any such action, or cause REMIC I, REMIC II or REMIC III to take any such
action, as to which the Trustee has advised it in writing that an Adverse REMIC
Event could occur. The Trustee may consult with counsel to make such written
advice, and the cost of same shall be borne by the party seeking to take the
action not expressly permitted by this Agreement. At all times as may be
required by the Code, the Trustee will to the extent within its control and the
scope of its duties as specifically set forth herein, maintain substantially all
of the assets of REMIC I as "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions"
of REMIC I, REMIC II or REMIC III as defined in Section 860F(a)(2) of the Code,
on "net income from foreclosure property" of REMIC I, REMIC II or REMIC III as
defined in Section 860G(c) of the Code, or on any contributions to REMIC I,
REMIC II or REMIC III after the Startup Day therefor pursuant to Section 860G(d)
of the Code, or any other tax is imposed by the Code or any applicable
provisions of state or local laws, such tax shall be charged (i) to the Trustee,
if such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Agreement, (ii) to any other party hereto, if such tax
arises out of or results from a breach by such party of any of its obligations
under this Agreement, or (iii) otherwise (including, without limitation, in the
case of any tax permitted to be incurred pursuant to Section 3.17(a)) against
amounts on deposit in the Distribution Account as provided by Section 3.05(b).
(h) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each of REMIC I, REMIC II and REMIC III on a
calendar year and on an accrual basis or as otherwise may be required by the
REMIC Provisions.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Trust Fund unless the Trustee shall have received
an Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at
any time that any Certificates are outstanding or subject such REMIC to any tax
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
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(j) None of the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which REMIC I, REMIC II or REMIC III will
receive a fee or other compensation for services nor (to the extent within its
control) permit REMIC I, REMIC II or REMIC III to receive any income from assets
other than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Within 30 days after the Closing Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for each of REMIC I, REMIC II and REMIC III.
(l) None of the Trustee, the Master Servicer, or the Special Servicer
shall sell, dispose of or substitute for any of the Mortgage Loans (except in
connection with (i) the default, imminent default or foreclosure of a Mortgage
Loan, including but not limited to, the acquisition or sale of a Mortgaged
Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy of REMIC
I, REMIC II or REMIC III, (iii) the termination of the Trust Fund pursuant to
Article IX of this Agreement or (iv) a purchase of Mortgage Loans pursuant to or
as contemplated by Section 2.03 or Section 3.18 of this Agreement) or acquire
any assets for the Trust Fund or sell or dispose of any investments in the
Certificate Account, the Distribution Account, any Serviced Whole Loan Custodial
Account or the REO Account for gain, or accept any contributions to the Trust
Fund after the Closing Date, unless it has received an Opinion of Counsel that
such sale, disposition, substitution or acquisition will not (a) affect
adversely the status of REMIC I, REMIC II or REMIC III as a REMIC or, (b)
subject to Section 10.01(f), cause REMIC I, REMIC II or REMIC III to be subject
to a tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
Section 10.02 Depositor, Master Servicer, Special Servicer and 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.
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(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 (f)).
(c) The Trustee shall prepare, sign and file when due all of the Tax
Returns in respect of the Grantor Trust. The expenses of preparing and filing
such returns shall be borne by the Trustee without any right of reimbursement
therefor. The other parties hereto shall provide on a timely basis to the
Trustee or its designee such information with respect to the Grantor Trust as is
in its possession and reasonably requested by the Trustee to enable it to
perform its obligations under this Section 10.03. Without limiting the
generality of the foregoing, the Depositor, within ten days following the
Trustee's request therefor, shall provide in writing to the Trustee such
information as is reasonably requested by the Trustee for tax purposes, and the
Trustee's duty to perform its reporting and other tax compliance obligations
under this Section 10.03 shall be subject to the condition that it receives from
the Depositor such information possessed by the Depositor that is necessary to
permit the Trustee to perform such obligations.
(d) The Trustee shall perform on behalf of the Grantor Trust all
reporting and other tax compliance duties that are required in respect thereof
under the Code, the Grantor Trust Provisions or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority.
(e) The Trustee shall perform its duties hereunder so as to maintain
the status of the Grantor Trust as a grantor trust under the Grantor Trust
Provisions (and the Master Servicer and the Special Servicer shall assist the
Trustee to the extent reasonably requested by 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
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written advice, and the cost of same shall be borne by the party seeking to take
the action not permitted by this Agreement, but in no event at the cost or
expense of the Trust Fund or the Trustee. Notwithstanding any provision of this
Agreement to the contrary, the Grantor Trust Assets shall not be subject to any
expenses, costs or other charges that are attributable to the assets or
activities of REMIC I, REMIC II or REMIC III.
(f) If any tax is imposed on the Grantor Trust, such tax, together
with all incidental costs and expenses (including, without limitation, penalties
and reasonable attorneys' fees) shall be charged to and paid by: (i) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its obligations under Article III or this Section 10.03; (ii)
the Master Servicer, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or this Section
10.03; (iii) the Trustee, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under Article IV, Article VIII or this
Section 10.03; or (iv) the portion of the Trust Fund constituting the Grantor
Trust in all other instances.
(g) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to the Grantor Trust on a calendar year and on an
accrual basis.
(h) The Trustee shall respond to reasonable written requests for
information in relation to income tax reporting by Certificateholders.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders or the Serviced
Companion Loan Holders:
(i) to cure any ambiguity,
(ii) to correct, modify or supplement any provisions herein which
may be inconsistent with any other provisions herein or to correct any error,
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or desirable to maintain the qualification of
(A) REMIC I, REMIC II or REMIC III as a REMIC at all times that any Certificate
is outstanding or (B) any trust fund in which any Serviced Companion Loan is
included as a REMIC (at all times that any related securities are outstanding)
or to avoid or minimize the risk of the imposition of any tax on REMIC I, REMIC
II or REMIC III pursuant to the Code that would be a claim against the Trust
Fund; provided, that the Trustee has received an Opinion of Counsel to the
effect that (A) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (B) such action will not adversely affect in any material respect the
interests of any Certificateholder or, if applicable, any Serviced Companion
Loan Holder,
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(iv) to change the timing and/or nature of deposits into the
Certificate Account or the Distribution Account or to change the name in which
the Certificate Account is maintained; provided, that (A) the Delinquency
Advance Date or the Master Servicer Remittance Date shall in no event be later
than the related Distribution Date, (B) such change shall not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder or any Serviced Companion Loan Holder and (C) such change
shall not result in the downgrade, qualification or withdrawal of the
then-current rating assigned to any Class of Certificates or, if applicable, any
class of Companion Loan Securities, as evidenced by a letter from each Rating
Agency to such effect,
(v) to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests"; provided,
that such change shall not, as evidenced by an Opinion of Counsel, cause either
the Trust Fund or any of the Certificateholders (other than the transferor) to
be subject to a federal tax caused by a transfer to a Person that is not a
United States Person and a Permitted Transferee,
(vi) to modify, eliminate or add any provision to this Agreement
to provide for a book-entry registration system for the Certificates,
(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 Xxxx Xxxxxxx Tower Mortgage Loan and/or the Boulevard Mall
Mortgage Loan; provided, that any such amendment shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder or any Serviced Companion Loan Holder, or
(viii) to modify, eliminate or add to the provisions of Section
8.14 as necessary from time to time to comply with the Exchange Act, the rules
and regulations of the Commission, the Xxxxxxxx-Xxxxx Act of 2002 or any other
applicable law, rule or regulation.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to any Serviced Companion Loan Holder, without the consent of such
Serviced Companion Loan Holder,
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any such
case without the consent of the Holders of all Certificates of such Class then
outstanding, or
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(iii) modify the definition of "Servicing Standard" without the
consent of the Holders of all Certificates then outstanding and the Serviced
Companion Loan Holders.
(c) Notwithstanding the foregoing, the Trustee will not be entitled to
consent to any amendment hereto without having first received an Opinion of
Counsel to the effect that (i) such amendment is permitted pursuant to the terms
of this Agreement and (ii) such amendment or the exercise of any power granted
to the Master Servicer, the Special Servicer, the Depositor, the Trustee or any
other specified person in accordance with such amendment will not result in the
imposition of a tax on REMIC I, REMIC II or REMIC III pursuant to the REMIC
Provisions or cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC
or cause any REMIC in which a Companion Loan is included to fail to qualify as a
REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each party hereto, each
Certificateholder and the Serviced Companion Loan Holders.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer or the Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 11.01(a) or (c) shall be payable out of the
Certificate Account.
Section 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund on direction by
the Trustee, such direction to be given by the Trustee only upon the Trustee's
receipt of an Opinion of Counsel to be obtained by the party requesting such
recordation (the cost of which may be paid out of the Certificate Account) to
the effect that such recordation materially and beneficially affects the
interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number
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of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same instrument.
Section 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be 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.
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Section 11.04 GOVERNING LAW.
THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN SAID STATE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.05 Notices.
Any communications provided for or permitted hereunder shall be in writing
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given if personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed to have been
duly given only when received), to: (i) in the case of the Depositor, 000 Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Structured Finance Manager,
telecopy number: (000) 000-0000; (ii) in the case of the Master Servicer, 000
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Managing Director,
Commercial Servicing Operations, telecopy number: (000) 000-0000 (with copies to
General Counsel (telecopy number: (000) 000-0000)); (iii) in the case of the
Trustee and the Serviced Companion Loan Paying Agent, the Corporate Trust
Office; (iv) in the case of the Special Servicer, 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, telecopy number (000) 000-0000, Attention: CMBS
Portfolio Manager (with a copy to General Counsel); (v) in the case of the
Rating Agencies, (A) Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage Surveillance Manager,
telecopy number: (000) 000-0000 and (B) Fitch Ratings, Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: Commercial Mortgage Surveillance Dept.,
telecopy number (000) 000-0000; (vi) in the case of the Underwriters, (A) Xxxxxx
Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxxx, telecopy number: (000) 000-0000, (B) Deutsche Bank Securities
Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxx,
telecopy number: (000) 000-0000, and (C) Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx, telecopy number: (212)
346-3594; (vii) in the case of the initial Majority Certificateholder of the
Controlling Class, Allied Capital Corporation, 0000 Xxxxxxxxxxxx Xxxxxx, XX, 0xx
Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Xxxx Xxxxxxxx, telecopy number: (202)
659-2053, 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.
239
Section 11.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right, title
and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets comprising the Trust Fund,
including without limitation, the Mortgage Loans (including all Replacement
Mortgage Loans), all principal and interest received or receivable with respect
to the Mortgage Loans (other than principal and interest payments due and
payable prior to the Cut-off Date and Principal Prepayments received prior to
the Cut-off Date), all amounts held from time to time in the Certificate Account
and the Distribution Account and all reinvestment earnings on such amounts, and
all of the Depositor's right, title and interest in and to the proceeds of any
title, hazard or other Insurance Policies related to the Mortgage Loans, and
(ii) this Agreement shall constitute a security agreement under applicable law.
The Depositor shall file or cause to be filed, as a precautionary filing, a Form
UCC-1 substantially in the form attached as Exhibit E hereto in all appropriate
locations in the state of Delaware promptly following the initial issuance of
the Certificates, and the Master Servicer shall prepare and file at each such
office, and the Trustee shall execute, continuation statements thereto, in each
case within six months prior to the fifth anniversary of the immediately
preceding filing. The Depositor shall cooperate in a reasonable manner with the
Trustee and the Master Servicer in preparing and filing such continuation
statements. This Section 11.07 shall constitute notice to the Trustee pursuant
to any of the requirements of the applicable Uniform Commercial Code.
Section 11.08 No Partnership.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of the
Master Servicer and the Special Servicer shall be rendered as independent
contractors and not as agents for the Trust Fund or the Certificateholders.
Section 11.09 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and permitted assigns
and all such provisions shall inure to the benefit of the Certificateholders.
Each Serviced Companion Loan Holder and any designees thereof acting on behalf
of or exercising the rights of such Serviced Companion Loan Holder shall be
third-party beneficiaries to this Agreement with respect to their rights as
specifically provided for herein. 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.
240
Section 11.11 Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide
notice or a copy of the listed item to each Rating Agency with respect to each
of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation, termination or merger (with an entity
other than an Affiliate) of the Master Servicer, the Special Servicer or the
Trustee;
(iv) any change in the location of the Distribution Account;
(v) a copy of the notice given pursuant to Section 2.03(a) and
the repurchase of a Mortgage Loan by the related Mortgage Loan Seller pursuant
to Section 6 of the related Mortgage Loan Purchase Agreement or by GMACCM
pursuant to Section 4 of the Supplemental Agreement; and
(vi) the final payment to any Class of Certificateholders.
(b) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14.
(c) To the extent it is not already required to do so under Section
4.02 hereof, the Trustee shall promptly furnish to each Rating Agency copies of
each report prepared and/or delivered by it pursuant to Section 4.02 hereof.
(d) Each of the Master Servicer, the Special Servicer and the Trustee
shall provide or make available such additional information to each Rating
Agency upon request is in its possession or reasonably available to it.
241
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
By:
---------------------------------------
Name:
Title:
GMAC COMMERCIAL MORTGAGE CORPORATION,
Special Servicer
By:
---------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, Trustee and Serviced
Companion Loan Paying Agent
By:
---------------------------------------
Name:
Title:
X-0
XXXXX XX XXX XXXX )
) ss.
COUNTY OF NEW YORK )
On the _____ day of August 2003, before me, a notary public in and for said
State, personally appeared Xxxxx Xxxxxxx known to me to be a Vice President of
GMAC COMMERCIAL MORTGAGE SECURITIES, INC., one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
-i-
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the _____ day of August 2003, before me, a notary public in and for said
State, personally appeared Xxxxx Xxxxxxx known to me to be a Senior Vice
President of GMAC COMMERCIAL MORTGAGE CORPORATION, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
-ii-
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the _____ day of August 2003, 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 laws of the United States of America that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such nationally chartered bank, and acknowledged to me that such nationally
chartered bank executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
-iii-
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class A-1
4.576% per annum Certificate as of the Issue Date: $[_____]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-1
August 1, 2003 Certificates as of the Issue Date: $589,963,000
Cut-off Date: With respect to any Aggregate unpaid principal balance of the Mortgage Pool
Mortgage Loan, the Due as of the respective Cut-off Dates of the Mortgage
Date for such Mortgage Loan in August 2003 Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 YT 3
GMAC Commercial Mortgage Corporation
Certificate No. A-1- [____] ISIN No. US361849YT34
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.
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 Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer,
A-1-2
Xxxxx Fargo Bank Minnesota, National Association, as Trustee and Serviced
Companion Loan Paying Agent. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement, as amended from time to time,
the Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. In the case of any conflict between the terms
specified herein and in the Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class A-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class A-1
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain
A-1-3
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-1-4
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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates is
reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
----------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class A-2
Variable Certificate as of the Issue Date: $[________]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-2
August 1, 2003 Certificates as of the Issue Date: $471,610,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 YU 0
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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.
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-2-2
Xxxxx Fargo Bank Minnesota, National Association, as Trustee and Serviced
Companion Loan Paying Agent. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement, as amended from time to time,
the Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. In the case of any conflict between the terms
specified herein and in the Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class A-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class A-2
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain
A-2-3
expenses incurred, with respect to the Mortgage Loans and the payment of
interest on such advances and expenses.
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
A-2-4
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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
----------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-2-6
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:
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS B CERTIFICATE
CLASS B MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class B
Variable Certificate as of the Issue Date: $40,333,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class B Certificates
August 1, 2003 as of the Issue Date: $40,333,000
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage Pool
the Due Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Date for such Mortgage Loan in August 2003 Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 YV 8
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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-3-1
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 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.
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
A-3-2
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, Xxxxx Fargo Bank
Minnesota, National Association, as Trustee and Serviced Companion Loan Paying
Agent. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement, as amended from time to time, the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class B Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class B Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
A-3-3
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class 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-3-4
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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-3-5
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
----------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-3-7
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 C CERTIFICATE
CLASS C MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class C
Variable Certificate as of the Issue Date: $16,133,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class C Certificates
August 1, 2003 as of the Issue Date: $16,133,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 YW 6
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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.
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
A-4-2
balance of all the Class C Certificates (their "Class Principal Balance") as of
the Issue Date) in that certain beneficial ownership interest evidenced by all
the Class C Certificates in the Trust 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, Xxxxx Fargo Bank
Minnesota, National Association, as Trustee and Serviced Companion Loan Paying
Agent. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement, as amended from time to time, the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class C Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class C Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
A-4-3
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class 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.
A-4-4
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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-4-5
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-4-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
----------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-4-7
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 D CERTIFICATE
CLASS D MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class D
Variable Certificate as of the Issue Date: $30,654,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class D Certificates
August 1, 2003 as of the Issue Date: $30,654,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received:
$1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 YX 4
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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-5-1
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 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 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
A-5-2
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, Xxxxx Fargo Bank
Minnesota, National Association, as Trustee and Serviced Companion Loan Paying
Agent. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement, as amended from time to time, the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class D Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class D Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
A-5-3
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class D Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class D Certificates are exchangeable for new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class D Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class D Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class D Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class D Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-5-4
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-5-5
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-5-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-5-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS E CERTIFICATE
CLASS E MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class E
Variable Certificate as of the Issue Date: $16,133,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class E Certificates
August 1, 2003 as of the Issue Date: $16,133,000
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage Pool
the Due Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage Loans,
after deducting payments of principal due on or before
such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 YY 2
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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, 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-6-2
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, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class E Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class E Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate
A-6-3
and any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such distribution is made upon this
Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class 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.
A-6-4
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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
A-6-5
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-6-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-6-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS X-1 CERTIFICATE
CLASS X-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Variable Certificate Notional Amount of this Class X-1
Certificate as of the Issue Date: $1,290,666,634
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class X-1 Certificates
August 1, 2003 as of the Issue Date: $1,290,666,634
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage
the Due Date for such Mortgage Loan in August 2003 Loans as of their respective Cut-off Dates, after
deducting payments of principal due on or before such
date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 000000XX0
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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 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
A-7-2
Amount") as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the 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,
Xxxxx Fargo Bank Minnesota, National Association, as Trustee and Serviced
Companion Loan Paying Agent. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement, as amended from time to time,
the Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. In the case of any conflict between the terms
specified herein and in the Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class X-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class X-1
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) and such Certificateholder is the registered owner of all
the Class X-1 Certificates, or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class X-1 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class X-1 Certificates are exchangeable for new Class X-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
A-7-3
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class X-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class X-1 Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class X-1 Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class X-1 Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
X-1 Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class X-1 Certificates
may be resold, pledged or transferred only (a) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class X-1 Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class X-1 Certificate without
registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class X-1
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class X-1 Certificate without registration or qualification. Any Class X-1
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class X-1 Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class X-1 Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or Section 4975
of the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating
A-7-4
Agency or (2) such Plan is an "insurance company general account" (within the
meaning of PTE 95-60) and the conditions set forth in Sections I and III of PTE
95-60 have been satisfied as of the date of acquisition of such Certificate.
Each purchaser or transferee that is a Plan or is investing on behalf of or with
"plan assets" of a Plan will be deemed to have represented that the foregoing
conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class X-1 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class X-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of
A-7-5
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-7-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-1 Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-7-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS X-2 CERTIFICATE
CLASS X-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Variable Certificate Notional Amount of this Class X-2
Certificate as of the Issue Date: $1,290,666,634
Date of Pooling and Servicing Agreement: Notional Amount of all the Class X-2 Certificates as of
August 1, 2003 the Issue Date: $1,290,666,634
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage
the Due Date for such Mortgage Loan in August 2003 Loans as of their respective Cut-off Dates, after
deducting payments of principal due on or before such
date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 000000XX0
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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-8-1
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 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
A-8-2
Amount") as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the 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,
Xxxxx Fargo Bank Minnesota, National Association, as Trustee and Serviced
Companion Loan Paying Agent. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement, as amended from time to time,
the Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. In the case of any conflict between the terms
specified herein and in the Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class X-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class X-2
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) and such Certificateholder is the registered owner of all
the Class X-2 Certificates, or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class X-2 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class X-2 Certificates are exchangeable for new Class X-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
A-8-3
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class X-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class X-2 Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class X-2 Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class X-2 Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
X-2 Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class X-2 Certificates
may be resold, pledged or transferred only (a) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class X-2 Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class X-2 Certificate without
registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class X-2
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class X-2 Certificate without registration or qualification. Any Class X-2
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class X-2 Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class X-2 Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or Section 4975
of the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating
A-8-4
Agency or (2) such Plan is an "insurance company general account" (within the
meaning of PTE 95-60) and the conditions set forth in Sections I and III of PTE
95-60 have been satisfied as of the date of acquisition of such Certificate.
Each purchaser or transferee that is a Plan or is investing on behalf of or with
"plan assets" of a Plan will be deemed to have represented that the foregoing
conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class X-2 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class X-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of
A-8-5
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-8-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-2 Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-8-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS F CERTIFICATE
CLASS F MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
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: Equal to the Weighted Average Net Certificate Principal Balance of this Class F
Mortgage Rate Certificate as of the Issue Date: $20,973,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class F Certificates
August 1, 2003 as of the Issue Date: $20,973,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 ZB 1
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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 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-10-2
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, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class F Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class F Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
A-10-4
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class F Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class F Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class F Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class F Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class F Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
F Certificates for its own account or for the account
A-10-5
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 Registrar
is obligated to register or qualify the Class F Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class F Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class F
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class F Certificate without registration or qualification. Any Class F
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class F Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class F Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class F Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class F Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-10-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-10-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
A-10-8
EXHIBIT A-10
FORM OF CLASS G CERTIFICATE
CLASS G MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
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: Equal to the Weighted Average Net Certificate Principal Balance of this Class G
Mortgage Rate Certificate as of the Issue Date: $11,294,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class G Certificates
August 1, 2003 as of the Issue Date: $11,294,000
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage Pool
the Due Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP Xx. 000000 XX 0
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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 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-11-2
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, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class G Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class G Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the
A-11-3
address of the Holder that surrenders this Certificate as such address last
appeared in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class G Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class G Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class G Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class G Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
G Certificates for its own account or for the account
A-11-4
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 the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class G Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class G Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class G
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class G Certificate without registration or qualification. Any Class G
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class G Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class G Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class G Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class G Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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-11-5
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-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 Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-11-7
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-11-8
EXHIBIT A-11
FORM OF CLASS H CERTIFICATE
CLASS H MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
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: Equal to the Weighted Average Net Certificate Principal Balance of this Class H
Mortgage Rate Certificate as of the Issue Date: $16,133,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class H Certificates
August 1, 2003 as of the Issue Date: $16,133,000
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage Pool
the Due Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 ZD 7
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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 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-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 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, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class H Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class H Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
A-12-3
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class H Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class H Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class H Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class H Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
H Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class H Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account
A-12-4
or for the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A, or
(b) pursuant to another exemption from registration under the Securities Act.
None of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class H Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class H Certificate without registration
or qualification. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class H Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class H Certificate
without registration or qualification. Any Class H Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class H Certificate
agrees to, indemnify the Depositor, the Trustee and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of any Class H Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class H Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class H Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-12-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-12-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
A-12-8
Exhibit A-12
FORM OF CLASS J CERTIFICATE
CLASS J MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.580% per annum or the Certificate Principal Balance of this Class J
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $20,973,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class J Certificates
August 1, 2003 as of the Issue Date: $20,973,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 ZE 5
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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 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-13-2
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, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class J Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class J Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
A-13-3
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class J Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class J Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class J Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class J Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
J Certificates for its own account or for the account of a qualified
A-13-4
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 obligated to
register or qualify the Class J Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class J Certificate without registration
or qualification. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class J Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class J Certificate
without registration or qualification. Any Class J Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class J Certificate
agrees to, indemnify the Depositor, the Trustee and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Any purchaser of a Class J Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class J Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class J Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class J Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-13-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-13-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-13-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-13-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
A-13-9
Exhibit A-13
FORM OF CLASS K CERTIFICATE
CLASS K MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.580% per annum or the Certificate Principal Balance of this Class K
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $8,067,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class K Certificates
August 1, 2003 as of the Issue Date: $8,067,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 ZF 2
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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 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-14-2
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, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class K Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class K Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
A-14-3
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class K Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class K Certificates are exchangeable for new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class K Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class K Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class K Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class K Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
K Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class K Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account
A-14-4
of a qualified institutional buyer to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A, or (b) pursuant to
another exemption from registration under the Securities Act. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register or
qualify the Class K Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of any Class K Certificate without registration or
qualification. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class K Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class K Certificate
without registration or qualification. Any Class K Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class K Certificate
agrees to, indemnify the Depositor, the Trustee and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Any purchaser of a Class K Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class K Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class K Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class K Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-14-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-14-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-14-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-14-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
A-14-9
Exhibit A-14
FORM OF CLASS L CERTIFICATE
CLASS L MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.580% per annum or the Certificate Principal Balance of this Class L
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $8,067,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class L Certificates
August 1, 2003 as of the Issue Date: $8,067,000
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage Pool
the Due Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 ZG 0
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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
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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
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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, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class L Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class L Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
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Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class L Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class L Certificates are exchangeable for new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class L Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class L Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class L Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class L Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
L Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class L Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account
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of a qualified institutional buyer to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A, or (b) pursuant to
another exemption from registration under the Securities Act. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register or
qualify the Class L Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of any Class L Certificate without registration or
qualification. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class L Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class L Certificate
without registration or qualification. Any Class L Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class L Certificate
agrees to, indemnify the Depositor, the Trustee and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Any purchaser of a Class L Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class L Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class L Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class L Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
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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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
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obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
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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.
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Exhibit A-15
FORM OF CLASS M CERTIFICATE
CLASS M MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.580% per annum or the Certificate Principal Balance of this Class M
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $9,680,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class M Certificates
August 1, 2003 as of the Issue Date: $9,680,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 ZH 8
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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
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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
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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, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class M Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class M Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is 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
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Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class M Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class M Certificates are exchangeable for new Class M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class M Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class M Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class M Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
M Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such 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
A-16-4
of a qualified institutional buyer to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A, or (b) pursuant to
another exemption from registration under the Securities Act. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register or
qualify the Class M Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of any Class M Certificate without registration or
qualification. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class M Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class M Certificate
without registration or qualification. Any Class M Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class M Certificate
agrees to, indemnify the Depositor, the Trustee and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Any purchaser of a Class M Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class M Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class M Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class M Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-16-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-16-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-16-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-16-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
A-16-9
Exhibit A-16
FORM OF CLASS N CERTIFICATE
CLASS N MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.580% per annum or the Certificate Principal Balance of this Class N
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $4,840,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class N Certificates
August 1, 2003 as of the Issue Date: $4,840,000
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage Pool
the Due Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 ZJ 4
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
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 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-17-2
PRINCIPAL BALANCES OF THE CLASS N-2, 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, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class N 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
A-17-3
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class N 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
A-17-5
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 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. 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.
A-17-6
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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-17-7
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-17-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-17-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
A-17-10
Exhibit A-17
FORM OF CLASS O CERTIFICATE
CLASS O MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.580 % per annum or the Certificate Principal Balance of this Class O
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $4,840,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class O Certificates
August 1, 2003 as of the Issue Date: $4,840,000
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage Pool
the Due Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 ZK 1
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-19-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
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-19-2
PRINCIPAL BALANCES OF THE CLASS P, CLASS X-1 AND CLASS X-2 CERTIFICATES OF THE
SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND
CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class 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, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class O Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class O Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is
A-19-3
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class O Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class O Certificates are exchangeable for new Class O Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class O Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class O Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class O Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class O Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
O Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such
A-19-4
Class O Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class O Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class O Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class O
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class O Certificate without registration or qualification. Any Class O
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class O Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class O Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class O Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class O Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class O Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-19-5
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-19-6
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-19-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-19-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
A-19-9
Exhibit A-18
FORM OF CLASS P CERTIFICATE
CLASS P MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.580% per annum or the Certificate Principal Balance of this Class P
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $20,973,634
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class P Certificates
August 1, 2003 as of the Issue Date: $20,973,634
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage Pool
the Due Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 ZL 9
GMAC Commercial Mortgage Corporation
Certificate No. X-0-0 XXXX Xx. XX000000XX00
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
A-21-1
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
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. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE THE
A-21-2
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS Q CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN
UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class P Certificate (obtained by dividing
the principal balance of this Class P Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class P Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class P
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class P Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class P Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the
A-21-3
address of the Holder that surrenders this Certificate as such address last
appeared in the Certificate Register or to any such other address of which the
Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class P Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class P Certificates are exchangeable for new Class P Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class P Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class P Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class P Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class P Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
P Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class P Certificates may
be resold, pledged or transferred only (a) to a person reasonably
A-21-4
believed to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class P Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class P Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class P
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class P Certificate without registration or qualification. Any Class P
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class P Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class P Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class P Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class P Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class P Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-21-5
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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the
A-21-7
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
A-21-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-21-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
A-21-9
Exhibit A-19
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in
August 1, 2003 the related Class: 100%
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage Pool
the Due Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003 First Distribution Date:
September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota,
National Association
Master Servicer and Special Servicer: CUSIP No. 361849 ZM 7
GMAC Commercial Mortgage Corporation
Certificate No. R-I-1 ISIN No. US361849ZM71
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-22-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that Xxxxxxx, Xxxxx & Co. 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 and Serviced Companion Loan Paying Agent. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
A-22-2
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class R-I Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class R-I
Certificate will be made by the Trustee by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-I Certificates are
exchangeable for new Class R-I Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-I Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-I Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a
A-22-3
certificate from such Certificateholder's prospective transferee substantially
in the form attached as Exhibit B-2 to the Agreement. None of the Depositor, the
Trustee or the Certificate Registrar is obligated to register or qualify the
Class R-I Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class R-I Certificate without registration or qualification. Any
Class R-I Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-I Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of a Class R-I Certificate or any interest therein
shall be made to (A) any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing
the Class R-I Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and a United States Person and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit C-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its
A-22-4
Ownership Interest unless it provides to the Trustee a certificate substantially
in the form attached as Exhibit C-2 to the Agreement stating that, among other
things, it has no actual knowledge that such prospective Transferee is not a
Permitted Transferee or is not a United States Person. Each Person holding or
acquiring an Ownership Interest in this Certificate, by purchasing such
Ownership Interest herein, agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-I Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-I Certificate
to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, and (v) any
electing large partnership under Section 775 of the Code and/or any other Person
so designated by the Trustee based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Class R-I Certificate by such Person may cause the
Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R-I Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a
A-22-5
court within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust.
No service charge will be imposed for any registration of
transfer or exchange of Class R-I Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class R-I Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
A-22-6
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-22-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-22-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
A-22-9
EXHIBIT A-20
FORM OF CLASS R-II CERTIFICATE
CLASS R-II MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in
August 1, 2003 the related Class: 100%
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage Pool
the Due Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 XX 0
GMAC Commercial Mortgage Corporation
Certificate No. R-II-1 ISIN No. US361849ZN54
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-23-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that Xxxxxxx, Xxxxx & Co. 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 and Serviced Companion Loan Paying
Agent. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement, as amended from time to time, the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
A-23-2
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class R-II Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class R-II
Certificate will be made by the Trustee by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-II Certificates are
exchangeable for new Class R-II Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-II Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-II Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a
A-23-3
certificate from such Certificateholder's prospective transferee substantially
in the form attached as Exhibit B-2 to the Agreement. None of the Depositor, the
Trustee or the Certificate Registrar is obligated to register or qualify the
Class R-II Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class R-II Certificate without registration or qualification.
Any Class R-II Certificateholder desiring to effect such a transfer shall, and
by the acceptance of its Class R-II Certificate agrees to, indemnify the
Depositor, the Trustee and the Certificate Registrar against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of a Class R-II Certificate or any interest
therein shall be made to (A) any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or Section 4975
of the Code (each, a "Plan") or (B) any Person who is directly or indirectly
purchasing the Class R-II Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and a United States Person and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit C-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its
A-23-4
Ownership Interest unless it provides to the Trustee a certificate substantially
in the form attached as Exhibit C-2 to the Agreement stating that, among other
things, it has no actual knowledge that such prospective Transferee is not a
Permitted Transferee or is not a United States Person. Each Person holding or
acquiring an Ownership Interest in this Certificate, by purchasing such
Ownership Interest herein, agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-II Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-II
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, and (v) any
electing large partnership under Section 775 of the Code and/or any other Person
so designated by the Trustee based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Class R-II Certificate by such Person may cause
the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R-II Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a
A-23-5
court within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust.
No service charge will be imposed for any registration of
transfer or exchange of Class R-II Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class R-II Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
A-23-6
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-23-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-23-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
A-23-9
EXHIBIT A-21
FORM OF CLASS R-III CERTIFICATE
CLASS R-III MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in
August 1, 2003 the related Class: 100%
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the Mortgage Pool
the Due Date for such Mortgage Loan in August 2003 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $1,290,666,634
Issue Date: August 28, 2003
First Distribution Date: September 10, 2003 Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Master Servicer and Special Servicer: CUSIP No. 361849 ZP 0
GMAC Commercial Mortgage Corporation
Certificate No. R-III-1 ISIN No. US361849ZP03
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-24-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that Xxxxxxx, Xxxxx & Co. 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 and Serviced Companion Loan Paying Agent. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement, as amended from time to time, the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound. In
the case of any conflict between the terms specified herein and in the
Agreement, the terms of the Agreement shall govern.
A-24-2
Pursuant to the terms of the Agreement, distributions will be
made on the 10th day of each month or, if such 10th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class R-III Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class R-III
Certificate will be made by the Trustee by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2003-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-III Certificates are
exchangeable for new Class R-III Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-III Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-III Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If such a transfer of any Class
R-III Certificate (other than a transfer thereof by the Depositor or any
Affiliate of the Depositor) is to be made without registration under the
Securities Act, then the Trustee shall require, in order to assure compliance
with such laws, receipt by it and the Depositor of a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit B-1
A-24-3
to the Agreement and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as Exhibit B-2 to the Agreement.
None of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class R-III Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class R-III Certificate without
registration or qualification. Any Class R-III Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class R-III
Certificate agrees to, indemnify the Depositor, the Trustee and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No transfer of a Class R-III Certificate or any interest
therein shall be made to (A) any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or Section 4975
of the Code (each, a "Plan") or (B) any Person who is directly or indirectly
purchasing the Class R-III Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and a United States Person and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit C-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its
A-24-4
Ownership Interest unless it provides to the Trustee a certificate substantially
in the form attached as Exhibit C-2 to the Agreement stating that, among other
things, it has no actual knowledge that such prospective Transferee is not a
Permitted Transferee or is not a United States Person. Each Person holding or
acquiring an Ownership Interest in this Certificate, by purchasing such
Ownership Interest herein, agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-III Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-III
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, and (v) any
electing large partnership under Section 775 of the Code and/or any other Person
so designated by the Trustee based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Class R-III Certificate by such Person may cause
the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R-III Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a
A-24-5
court within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust.
No service charge will be imposed for any registration of
transfer or exchange of Class R-III Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class R-III Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the 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; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer 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 Interests of each Class of affected Certificates. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
A-24-6
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-24-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2003
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
By:
----------------------------------------------
Authorized Officer
A-24-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of______________________________________________________________
Distributions made by check (such check to be made payable to _________
_______________________________________________________________________________)
and all applicable statements and notices should be mailed to __________________
________________________________________________________________________________
This information is provided by ______________________________________,
the assignee named above, or___________________________________________________,
as its agent.
A-24-9
EXHIBIT B-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
GMAC Mortgage Pass-Through Certificates Series 2003-C2
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2003-C2, [Class X-1] [Class
X-2] [Class A-1] [Class A-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 August
28, 2003 of $ ] [evidencing a % Percentage Interest in such
Class].
Dear Sirs:
This letter is delivered to you in connection with the transfer by (the
"Transferor") to (the "Transferee") of the captioned Certificates (the
"Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of August 1, 2003, 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 and Serviced Companion Loan Paying
Agent. All terms used herein and not otherwise defined shall have the respective
meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Certificates with the full
right to transfer the Certificates free from any and all claims and encumbrances
whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with any person in any manner, (d) made any general
solicitation with respect to the Certificates, any interest in the Certificates
or any other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to the Certificates, any
interest in the Certificates or any other similar security, which (in the case
of any of the acts described in clauses (a) through (e) hereof) would constitute
a distribution under the Securities Act of 1933 (the "Securities Act"), or would
render the disposition of the Certificates a violation of Section 5
B-1-1
of the Securities Act or any state securities laws, or would require
registration or qualification of the Certificates pursuant to the Securities Act
or any state securities laws.
3. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is a "qualified institutional
buyer" (as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act) purchasing for its own account or for the account of other qualified
institutional buyers, and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Certificates.
4. The Transferor or a person acting on its behalf has taken reasonable
steps to ensure that the Transferee is aware that the Transferor is relying on
the exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A.
5. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement, and
(d) any credit enhancement mechanism associated with the Certificates, that the
Transferee has requested.
Very truly yours,
Print Name of Transferor
----------------------------------------
By:
-------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF TRANSFEREE CERTIFICATE
[Date]
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
GMAC Mortgage Pass-Through Certificates Series 2003-C2
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2003-C2, [Class X-1] [Class
X-2] [Class A-1] [Class A-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 August
28, 2003 of $ ] [evidencing a % Percentage Interest in such
Class].
Dear Sirs:
This letter is delivered to you in connection with the transfer by (the
"Transferor") to (the "Transferee") of the captioned Certificates (the
"Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of August 1, 2003 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 and Serviced Companion Loan Paying
Agent. All terms used herein and not otherwise defined shall have the respective
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933 (the
"Securities Act") and has completed one of the forms of certification to that
effect attached hereto as Annex 1 and Annex 2. The Transferee is aware that the
sale to it is being made in reliance on Rule 144A. The Transferee is acquiring
the Certificates for its own account or for the account of a qualified
institutional buyer, and understands that such Certificates may be resold,
pledged or transferred only (a) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding (a)
the Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement, and
(d) any credit enhancement mechanism associated with the Certificates, that it
has requested.
3. If the Transferee proposes that the Certificates be registered in
the name of a nominee, such nominee has completed the Nominee Acknowledgment
below.
B-2-1
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 X-0,
Xxxxx X-0, Class B, Class C, Class D, Class E, 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 Transferor
--------------------------------------------
By:
--------------------------------------------
Name:
Title:
B-2-2
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Certificate being
registered in its name, the sole beneficial owner thereof is and shall be
____________, the Transferee identified above, for whom the undersigned is
acting as nominee.
Very truly yours,
Print Name of Nominee
----------------------------------------
By:
-------------------------------------
Name:
Title:
X-0-0
XXXXX 0 XX XXXXXXX X-0
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to (the "Transferor") and ,
as Certificate Registrar, with respect to the mortgage pass-through certificate
(the "Certificate") described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933 ("Rule 144A"), because (i)
the Transferee owned and/or invested on a discretionary basis $ in securities1
(other than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or any organization described in Section 501(c)(3)
of the Internal Revenue Code of 1986.
Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District of
Columbia, the business of which is substantially confined to banking and is
supervised by the State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual financial statements,
a copy of which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a U.S. bank, and
not more than 18 months preceding such date of sale for a foreign bank or
equivalent institution.
Savings and Loan. The Transferee (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions, or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not more than 16
months preceding
------------------------
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
B-2-4
the date of sale of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of sale for a
foreign savings and loan association or equivalent institution.
Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
Insurance Company. The Transferee is an insurance company whose primary
and predominant business activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940.
Other. (Please supply a brief description of the entity and a cross
reference to the paragraph and subparagraph under subsection (a)(1) of Rule 144A
pursuant to which it qualifies. Note that registered investment companies should
complete Annex 2 rather than this Annex 1).
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities that are
part of an unsold allotment to or subscription by the Transferee, if the
Transferee is a dealer, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a majority
owned, consolidated subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act of 1934.
B-2-5
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Transferee may be in reliance on Rule 144A.
Will the Transferee be purchasing the Certificates only for the
Transferee's own account?
Yes [_] No [_]
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Certificate will
constitute a reaffirmation of this certification as of the date of such
purchase. In addition, if the Transferee is a bank or savings and loan as
provided above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
Very truly yours,
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-2-7
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, or owned by the Transferee's Family of
Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Will the Transferee be purchasing the Certificates only for the
Transferee's own account?
Yes [_] No [_]
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Transferee or Adviser
----------------------------------------
By:
-------------------------------------
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Transferee
Date: ----------------------------------------
B-2-8
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
State of )
) ss
County of )
______________________, being first duly sworn, deposes and says that:
1. He/She is the _____________ of ______________ (the prospective
transferee (the "Transferee") of GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2003-C2, [Class R-I] [Class R-II]
[Class R-III], evidencing a _____% Percentage Interest in such Class (the
"Residual Certificates"), a __________duly organized and validly existing under
the laws of _____________, on behalf of which he/she makes this affidavit. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement pursuant to
which the Residual Certificates were issued (the "Pooling and Servicing
Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account. A "Permitted Transferee" is any
Person other than a "disqualified organization" or a possession of the United
States. (For this purpose, a "disqualified organization" means the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, an electing large partnership under Section 775 of the Code, any
rural electric or telephone cooperative, or any organization (other than certain
farmers' cooperatives) that is generally exempt from federal income tax unless
such organization is subject to the tax on unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor (or, with respect to transfers to electing large
partnerships, on such partnership) or, if such transfer is through an agent
(which Person includes a broker, nominee or middleman) for a non-Permitted
Transferee, on the agent; (iii) that the Person otherwise liable for the tax
shall be relieved of liability for the tax if the transferee furnishes to such
Person (other than transfers with respect to electing large partnerships) an
affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury Regulation Section 1.860E-1(c) and that
the transferor of a "noneconomic residual interest" will
C-1-1
remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer is to enable the
transferor to impede the assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is ________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (ii)(A) of Section 5.02(d)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a Person other than the Transferee and clause (ii)(B) of Section 5.02(d) which
authorizes the Trustee to negotiate a mandatory sale of the Residual
Certificates, in either case, in the event that the Transferee holds such
Residual Certificates in violation of Section 5.02(d)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of
the Residual Certificates is or will be to impede the assessment or collection
of any tax; in making this representation, the Transferee warrants that the
Transferee is familiar with Treasury Regulation Section 1.860E-1(c) and recent
amendments thereto, effective as of July 19, 2002.
10. The Transferee hereby represents to and for the benefit of the
Transferor that the Transferee intends and reasonably expects to have the
ability to pay any taxes associated with holding the Residual Certificates as
they become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Residual Certificates. Any financial
statements or other financial information provided by the transferee at the
request of the Transferor in connection with the transfer of the Residual
Certificates to permit the Transferor to assess the financial capability of the
Transferor to pay any such taxes is true and correct in all material respects.
11. The Transferee will, in connection with any transfer that it makes
of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of
C-1-2
Exhibit C-2 to the Pooling and Servicing Agreement. The Transferee hereby agrees
that it will not make any transfer of any Residual Certificate unless (i) the
transfer is to an entity which is a domestic C corporation (other than an exempt
corporation, a regulated investment company, a real estate investment trust, a
REMIC, or a cooperative organization to which part I of Subchapter T of the Code
applies) for federal income tax purposes, and (ii) the transfer is in compliance
with the conditions set forth in paragraph 3 of Exhibit C-2 of the Pooling and
Servicing Agreement.
12. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof (except, in the
case of a partnership, to the extent provided in Treasury regulations), an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust for which a court within the United States is able to exercise primary
supervision over its administration and for which one or more United States
Persons have the authority to control all substantial decisions of the trust.
13. The Transferee is not acquiring the Residual Certificates with
"plan assets" of any plan subject to Title I of ERISA or Section 4975 of the
Code.
14. [The Transferee hereby represents to and for the benefit of the
Transferor that (i) at the time of the transfer, and at the close of each of the
Transferee's two fiscal years preceding the year of transfer, the Transferee's
gross assets for financial reporting purposes exceed $100 million and its net
assets for such purposes exceed $10 million (disregarding, for purposes of
determining gross or net assets, the obligation of any person related to the
Transferee within the meaning of Treasury Regulation section 1.860E-1(c)(5) or
any other asset if a principal purpose for holding or acquiring that asset is to
permit the Transferee to satisfy this minimum gross asset or net asset
requirement), (ii) the Transferee is a domestic C corporation for United States
federal income tax purposes that is not an exempt corporation, a regulated
investment company, a real estate investment trust, a REMIC, or a cooperative
organization to which part I of subchapter T of the Code applies, (iii) there
are no facts or circumstances on or before the date of transfer (or anticipated
transfer) which would reasonably indicate that the taxes associated with the
Residual Certificates will not be paid, and (iv) any transfer of its interest
will be to a transferee that satisfies the requirements of this paragraph 14.]1
15. The Transferee hereby agrees that it will not cause income from the
Class R Certificates to be attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of the
Transferee or another United States taxpayer.
------------------------
1 Bracketed text may be used if the Transferee is relying on the
"non-formula safe harbor".
C-1-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its and its corporate seal to be hereunto attached, attested by its [Assistant]
Secretary, this day of , .
Very truly yours,
Print Name of Transferee
----------------------------------------
By:
-------------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
----------------------------------------
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me
to be the same person who executed the foregoing instrument and to be the of the
Transferee, and acknowledged to me that he/she executed the same as his/her free
act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ________ day of
____________________ ________.
----------------------------------------
NOTARY PUBLIC
COUNTRY OF _____________________________
STATE OF _______________________________
My Commission expires the day ____ of
____________, _____.
C-1-4
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS
OF REMIC RESIDUAL CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
GMAC Mortgage Pass-Through Certificates Series 2003-C2
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2003-C2 (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 August 1,
2003 (the "Pooling and Servicing Agreement"), among GMAC Commercial Mortgage
Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer and Special Servicer and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax; in making this representation,
the Transferor warrants that the Transferor is familiar with Treasury Regulation
Section 1.860E-1(c) and recent amendments thereto, effective as of July 19,
2002.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor at the time of this transfer has conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in
C-2-1
the future, and either (A) has determined that the present value of the
anticipated tax liabilities associated with the holding of the Residual
Certificate does not exceed the sum of (1) the present value of any
consideration given to the Transferee to acquire the Certificate, (2) the
present value of the expected future distributions on the Certificate, and (3)
the present value of the anticipated tax savings associated with holding the
Certificate as the REMIC generates losses (having made such determination by (I)
assuming that the Transferee pays tax at a rate equal to the highest rate of tax
specified in Section 11(b)(1) of the Internal Revenue Code ("Code") unless an
alternative rate is permitted to be used under the Treasury Regulation Section
1.860E-1(c)(8)(i), and (II) utilizing a discount rate for present valuations
equal to the Federal short-term rate prescribed by Section 1274(d) of the Code
for the month of the transfer and the compounding period used by the Transferee,
or (B) based on an adequate review of the relevant facts and circumstances,2
neither knows nor should know that the Transferee would be unwilling or unable
to pay any taxes due on its share of the taxable income of the REMIC.
------------------------
2 If reliance is upon the "non-formula safe harbor" such review would
include all of the following: (i) at the time of the transfer, and at the close
of each of the Transferee's two fiscal years preceding the year of transfer, the
Transferee's gross assets for financial reporting purposes exceed $100 million
and its net assets for such purposes exceed $10 million (disregarding, for
purposes of determining gross or net assets, the obligation of any person
related to the Transferee within the meaning of Treasury Regulation section
1.860E-1(c)(5) or any other asset if a principal 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
will not cause income from the Residual Certificate to be attributable to a
foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of the Transferee or another United States
taxpayer, and (v) a reasonable person would not conclude based on Treasury
Regulation section 1.860E-1(c)(5)(iii) and the facts and circumstances known to
the transferor on or before the date of the transfer, that the taxes associated
with the Residual Certificate will not be paid. In addition, such "safe harbor"
also requires that the Transferor not know or have reason to know that the
Transferee will not honor the restrictions on subsequent transfers of any
Residual Interest described in paragraphs 11, 12 and 14 of the Transferee's
Transfer Affidavit and Agreement.
C-2-2
4. The Transferor understands that the transfer of the Residual
Certificates may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes associated
therewith) unless it complies with a current "safe harbor" under Treasury
Regulation 1.860E-1(c)(4) with respect to such transfer.
Print Name of Transferor
----------------------------------------
By:
-------------------------------------
Name:
Title:
C-2-3
EXHIBIT D
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage
Loans held by you for the referenced pool, we request the release of the
Mortgage Loan File described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
Borrower Name(s):
Reason for Document Request: (indicate one)
[_] Mortgage Loan Prepaid in Full
[_] Mortgage Loan Repurchased or Sold
[_] Other (specify) ____________________
________________________________________
________________________________________
"We hereby certify that all amounts received or to be received in
connection with such payments which are required to be deposited have been or
will be so deposited as provided in the Pooling and Servicing Agreement."
[GMAC COMMERCIAL MORTGAGE CORPORATION]
Authorized Signature
******************************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
D-1
Enclosed Documents: [_] Promissory Note
[_] Primary Insurance Policy
[_] Mortgage or Deed of Trust
[_] Assignment(s) of Mortgage or Deed of Trust
[_] Title Insurance Policy
[_] Other:
Name
Title
Date
D-2
EXHIBIT E
FORMS OF UCC-1 FINANCING STATEMENTS
SCHEDULE 1 TO UCC-1 FINANCING STATEMENT
All right (including the power to convey title thereto), title and interest of
the Debtor as more particularly described on Exhibit A attached hereto:
EXHIBIT A OF SCHEDULE 1 TO UCC-1 FINANCING STATEMENT
All right (including the power to convey title thereto), title and
interest of the Debtor in and to the following property, including any security
interest therein for the benefit of the Debtor, in and to the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of August 1, 2003,
among the Debtor, as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer and Special Servicer, the Secured Party, as Trustee* and Serviced
Companion Loan Paying Agent, with respect to Mortgage Pass-Through Certificates,
Series 2003-C2 (the "Pooling and Servicing Agreement (Series 2003-C2)),
including:
(1) the Mortgage Loans (including all Replacement Mortgage Loans)
listed on the Mortgage Loan Schedule attached hereto;
(2) all principal and interest received or receivable with respect to
the Mortgage Loans and the Replacement Mortgage Loans (other than principal and
interest payments due and payable prior to the Cut-off Date and Principal
Prepayments received prior to the Cut-off Date);
(3) all amounts held from time to time in the Certificate Account and
the Distribution Account and all reinvestment earnings on such amounts, the
Excess Liquidation Proceeds Reserve Account, the Interest Reserve Account, the
REO Account, the Serviced Whole Loan Custodial Accounts, the Serviced Whole Loan
REO Accounts and the Serviced Companion Loan Distribution Accounts;
(4) all of the Debtor's right, title and interest in and to the
proceeds of any title, hazard or other Insurance Policies related to the
Mortgage Loans;
(5) any and all general intangibles (as defined in the Uniform
Commercial Code) consisting of, arising from or relating to any of the
foregoing; and
(6) any and all income, payments, proceeds and products of any of the
foregoing.
Capitalized terms used herein, but not defined, shall have the
respective meanings assigned to such terms in the Pooling and Servicing
Agreement (Series 2003-C2).
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED
BY THE POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN,
WITH RESPECT TO THE MORTGAGE LOANS (INCLUDING ALL REPLACEMENT MORTGAGE LOANS),
THE MORTGAGE NOTES, THE RELATED MORTGAGES AND THE RELATED MORTGAGE FILES, AND
THIS
E-1
FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT OCCURRED. THE
REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE UNIFORM
COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION, OR THAT A FILING
IS NECESSARY TO PERFECT THE SECURITY INTEREST OF THE SECURED PARTY*, WITH
RESPECT TO THE MORTGAGE LOANS, IN ANY MORTGAGE NOTE, MORTGAGE OR DOCUMENT IN A
MORTGAGE FILE. WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY IN THE
EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
*Not in its individual capacity, but solely as Trustee for the benefit
of the Certificateholders and Serviced Companion Loan Paying Agent pursuant to
the Pooling and Servicing Agreement (Series 2003-C2).
E-2
EXHIBIT F
Methodology for Analyzing and Reporting Property Income Statements
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. These instructions should be in conjunction with the Master Coding
Matrix.
The operating income information collected from borrowers should be used to
populate the NOI Adjustment Worksheet (NOIWS) and the Operating Statement
Analysis Report (OSAR). The OSAR and NOIWS templates vary by property type
according to CMSA guidelines.
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.
NOI Adjustment Worksheet (NOIWS)
--------------------------------
o The NOIWS documents any adjustments made to the borrower's actual data by
the analyst to determine normalized Net Operating Income (NOI) and Net Cash
flow (NCF). This normalized NOI and NCF will flow through to the OSAR.
Normalization and Reporting of Financial Information
Revenues
--------
Reporting:
o In the Income Section of the OSAR and NOIWS (excluding the template for
Lodging), either both categories, Gross Potential Rent and Less: Vacancy
and Collection should be used in combination together, or these two
categories should be left blank If blank, then only Base Rent should be
used by itself to show the net rent received (net of Vacancy and collection
loss). The combination of Gross Potential Rent and Vacancy are preferred
over Base Rent.
Normalization:
o Non-recurring extraordinary income should be excluded:
o For example, lease buyout or insurance proceeds (except rent related)
should always be adjusted out of income. Income received for a period
other than the year in question should be adjusted. If a material
amount of past due rent for a prior year was paid and recorded in the
current year, the servicer should back out this amount of income and
footnote the action, unless such payment is consistently made on a
year-to-year basis.
o Lease Termination Revenue
o Omit Lease Termination Penalty Income
o Lease Termination Rental income should be included just for the period
that is being analyzed.
F-1
o Lease Termination Rental income should only be included until the new
tenant starts paying rent.
o When a tenant has vacated the premises but is still paying rent the
space is considered "dark."
o Care should be used when reflecting percentage/overage rents to ensure that
they relate to the appropriate period and that the numbers are supported by
a trend in prior years or by tenant sales information.
o Interest Income should be adjusted out.
Expenses
--------
o Real Estate Taxes:
o If GMACCM does not escrow, use the borrower's amount reported on the
financial statement. If statement is for a quarterly analysis and the
borrower has not reported a property tax amount then call the borrower
to find out when the next tax payment is due and for how much. Adjust
this amount to reflect the period being analyzed.
o If GMACCM escrows, property tax should reflect the annual amount paid
to the taxing authority, excluding any delinquent taxes or credits
from prior years.
o Verify with that the amount reported by the borrower is close to what
we are escrowing for. If there is a huge variance the borrower will
need to be contacted. For example, if the borrower reports on their
statement "taxes", it may include payroll taxes, which will need to be
incorporated into Payroll & Benefits Expense.
o The amount for Real Estate Taxes will be adjusted if the period under
analysis is less than one year. o Footnote, in detail, what method of
calculating property taxes was used and why.
o Insurance:
o If GMACCM does not escrow for insurance, use the borrower's reported
amount. Compare the amount reported by the borrower to the
corresponding period last year. (If statement is for a quarterly
analysis and the borrower has not reported an insurance amount then
call the borrower to find out when the next insurance payment is due
and for how much. Adjust this amount to reflect the period being
analyzed.)
|X| If it is in-line or slightly higher, use the borrower's amount.
|X| If it is substantially higher/lower contact the borrower for
clarification. If the analyst is confident normalizing the
borrower's figure based on historical information a footnote must
be made explaining the rational.
o If GMACCM escrows for insurance but the borrower does not report an
insurance amount on their financial statement use the escrow amount.
o If GMACCM escrows for insurance and the borrower reports an insurance
amount use the amount from the GMACCM servicing system if it is higher
than the borrower's reported amount. If the amount reported by the
borrower is higher use the borrower's amount because it may include
additional policies that GMACCM does not escrow for. If the borrower's
reported amount is substantially higher than what GMACCM escrows for,
borrower contact may be required.
o Footnote, in detail, what method of calculating insurance was used and
why.
F-2
o Management Fees:
o Management fee should not be less than underwriting (if available)
o If the borrower has reported a management fee and it is 3-5% of
Effective Gross Income (EGI) use the reported amount. If that amount
is between 5-10% of EGI normalize the figure to 5% of EGI. If the
amount is greater than 10% of EGI contact the borrower to find out the
reason. If the figure is less than 3% of EGI normalize the amount to
3% of EGI.
o If the borrower has not reported a management fee apply a management
fee of 3% of EGI. o Footnote all adjustments.
o Other Expenses:
o Remove any legal fees or consulting fees not pertaining directly to
the routine operations of the property. (E.g. - Fees for closing the
loan structure.)
o Corporate or entity level expenses should be adjusted out.
o Footnote all adjustments
Capital Items
-------------
Actual major capital expenditures that were not expected should be reflected as
Extraordinary Capital Expenditures on the NOIWS. Extraordinary Capital
Expenditures should then be adjusted out of the normalized column and will
therefore be reflected as zero on the OSAR.
o Capital Expenditures (Replacement Reserves) -
o In general, Capital Items should be normalized to the values
used for Underwriting unless trends over time (or the PSA)
dictate otherwise. If there are significant variances from
Underwriting, then the reasons for these variances should be
footnoted.
o For the normalization of Capital Expenditures please follow
the methodology below.
o If GMACCM escrows for Replacement Reserves use this amount.
Check the Replacement Reserve history to verify the reserve
amount that was paid each month. There is a possibility the
reserve payment amount may have changed during the year. For
some hospitality loans the replacement reserve escrow amount
changes in April or May based on a percentage of the
previous years Effective Gross Income.
o For newly originated loans: If a loan was acquired in
July 2002 and the borrower submits a 9/30/2002
statement consisting of nine months of information, the
analyst should introduce nine
F-3
months of replacement reserve figures based on the
GMAC escrow amount.
o If GMACCM does not escrow, use the amount determined at
Underwriting. The Capital Expenditure amount is a
percentage of EGI. For example, if at UW replacement
reserves were 5% of EGI, then utilize 5% of the current
EGI for the capital expenditures for the current
analysis.
|X| If GMACCM does not escrow and Underwriting is
not available then use the estimated value from
the chart below. These figures are per year.
o For Hospitality loans, use 4% of Effective Gross Income
from the previous year-end's analysis. Below are some
examples:
o For a year-end 2002 statement calculate 4% of
year-end 2001 EGI.
o For a 1st quarter 2003 analysis calculate 4% of
year-end 2002 EGI, and adjust the figure for 3
months. If the YE 2002 EGI was $300,000, then 4%
is $12,000, and 3 months worth is $3000. The 2nd
quarter RR figure would be $6000.
o The amount for capital expenditures will be adjusted if
the period under analysis is less than one year.
o Footnote, in detail, what method of calculating capital
expenditures was used and why.
Industrial
Multifamily (per Mobile Home
(per Office/Retail square Parks (per
Constructed or units/per (per square foot/per pad/per
Renovated year) foot/per year) year) year)
------------------- --------------- ---------------- ------------ -------------
24 or more years $300 $0.25 $0.20 $50
ago
------------------- --------------- ---------------- ------------ -------------
14 to 23 years ago $250 $0.20 $0.15 $50
------------------- --------------- ---------------- ------------ -------------
4 to 13 years ago $200 $0.15 $0.10 $50
------------------- --------------- ---------------- ------------ -------------
0 to 3 years ago $150 $0.10 $0.05 $50
------------------- --------------- ---------------- ------------ -------------
--------------------------- ---------------
Healthcare
--------------------------- ---------------
Skilled Nursing $300 per bed
--------------------------- ---------------
Assisted Living $300 per unit
--------------------------- ---------------
o Tenant Improvements:
o If there are Tenant Improvements recorded on the borrower's statement
use the borrower's amount.
o If GMACCM escrows for TI normalize TI to that amount
o If GMACCM does not escrow do not normalize the borrower's amount. The
analysis should reflect the borrower's amount.
F-4
o The amount for Tenant Improvements will be adjusted if the period
under analysis is less than one year.
o Footnote all adjustments.
o Leasing Commissions:
o Follow the same procedures as for Tenant Improvements
o Debt Service Reserve - this should be omitted.
o Seasonality Reserve - this should be omitted.
o Ground Lease -
o If GMACCM escrows for Ground Leases use this amount and omit the
amount if reported on the borrower's financial statement.
o If GMACCM does not escrow for Ground Leases use the amount if reported
on the borrower's financial statement.
o The amount for Ground Leases will be adjusted if the period under
analysis is less than one year.
o Footnote all adjustments.
Extraordinary Capital Expenditures
----------------------------------
The Extraordinary Capital Expenditures should always be adjusted to zero and
specific details should be given in the comments.
Debt Service
------------
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.
Triple Net Leases (NNN)
-----------------------
A Triple-Net Lease is one in which the tenant pays all operating expenses of the
property and the landlord receives a net rent. These expenses include, but are
not limited to; real estate taxes, utilities, insurance, and repairs. A
Management Fee is not usually assumed at Underwriting because the borrower has
to do very little management of the property. It is for this reason that
Management Fees and Capital Expenditures (Replacement Reserves) should not be
assumed when doing an analysis. Refer to the Underwriting if available to
confirm that these expenses were not underwritten. If Underwriting is not
available the DSCR should be closely examined. For example, if the DSCR
works-out well in excess of 1.00 the loan documents/agreements should be
reviewed, as the majority of Triple Net Lease DSCR's are around 1.02 through
1.10.
Footnote Disclosure
F-5
Investors are interested in both understanding the servicer's normalization
process and the reason's behind any fluctuations in a property's performance.
Thus, variances and footnotes are essential in assessing the performance of the
underlying properties and should contain appropriate detail.
o Variances of greater than 10% (either higher or lower) between the
current period and from the same period in the prior year for any DSCR
must be explained in the footnotes.
o Variances of greater than 15% (either higher or lower) between the
current period and the same period in the prior year must be explained
in the footnotes for the following line items:
o Effective Gross Income
o Total Operating Expenses
o Total Capital Items
o Footnotes should be used whenever necessary to explain adjustments made to
arrive at the normalized NOI and NCF. Any additional information pertaining
to the operations of the property obtained from the borrower or other
sources should be included in the financial statement notes.
F-6
EXHIBIT G
FORM OF DISTRIBUTION DATE STATEMENT
[TO BE PROVIDED BY TRUSTEE]
G-1
EXHIBIT H-1
FORM OF INVESTOR CERTIFICATION
[Date]
Xxxxx Fargo Bank Minnesota, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Corporate Trust Services,
GMAC Mortgage Pass-Through Certificates Series 2003-C2
In accordance with Section 4.02 of the Pooling and Servicing Agreement,
dated as of August 1, 2003 (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") and Serviced Companion Loan Paying
Agent, with respect to the GMAC Commercial Mortgage Securities, Inc. Mortgage
Pass-Through Certificates, Series 2003-C2 (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of
the Class ___ Certificates .
2. The undersigned is requesting access pursuant to the Agreement to
certain information (the "Information") on the [Trustee's website] [Master's
website] [Servicer's/Special Servicer's website] and/or is requesting the
information identified on the schedule attached hereto (also, the "Information")
pursuant to the provisions of the Agreement.
3. In consideration of the [Trustee's] [Master Servicer's] [Special
Servicer's] disclosure to the undersigned of the Information, or the access
thereto, the undersigned will keep the Information confidential (except from
such outside persons as are assisting it in making an evaluation in connection
with purchasing the related Certificates, from its accountants and attorneys,
and otherwise from such governmental or banking authorities or agencies to which
the undersigned is subject), and such Information will not, without the prior
written consent of the [Trustee] [Master Servicer] [Special Servicer], be
otherwise disclosed by the undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively, the "Representatives") in
any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require
H-1-1
registration of any Certificate not previously registered pursuant to Section 5
of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer and the Trust
Fund for any loss, liability or expense incurred thereby with respect to any
such breach by the undersigned or any of its Representatives.
6. Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized signatory, as of the day and year written above.
-----------------------------------------
Beneficial Owner or Prospective Purchaser
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Company:
---------------------------------
Phone:
---------------------------------
cc: GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
H-1-2
SCHEDULE i to EXHIBIT H-1
SCHEDULE TO
FORM OF INVESTOR CERTIFICATION
H-1-A
EXHIBIT H-2
FORM OF CONFIDENTIALITY AGREEMENT
[Date]
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: GMAC Commercial Mortgage Securities, Inc.,
Commercial Mortgage Pass-Through Certificates Series 2003-C2
Re: Information regarding GMAC Commercial Mortgage Securities,
Inc., Commercial Mortgage Pass-Through Certificates Series
2003-C2
Ladies and Gentlemen:
In connection with the GMAC Commercial Mortgage Securities,
Inc., Commercial Mortgage Pass-Through Certificates Series 2003-C2 (the
"Certificates"), we acknowledge that we will be furnished by GMAC Commercial
Mortgage Corporation as Master Servicer and/or as Special Servicer (and may have
been previously furnished) with certain information (the "Information"). For the
purposes of this letter agreement (this "Agreement"), "Representative" of a
Person refers to such Person's directors, officers, employees, and agents; and
"Person" refers to any individual, group or entity.
In connection with and in consideration of our being provided
with Information, we hereby acknowledge and agree that we are requesting and
will use the Information solely for purposes of making investment decisions with
respect to the above-referenced Certificates and will not disclose such
Information to any other Person or entity unless required to do so by law;
provided such Information may be disclosed to the auditors and regulators of the
undersigned or to any person or entity that is contemplating the purchase of any
Certificate held by the undersigned or of an interest therein, but only if such
person or entity confirms in writing such contemplation of a prospective
ownership interest and agrees in writing to keep such Information confidential.
The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer and the Trust
Fund for any loss, liability or expense incurred thereby with respect to any
such breach by the undersigned or any of its Representatives.
This Agreement shall not apply to any of the Information
which: (i) is or becomes generally available and known to the public other than
as a result of a disclosure directly or indirectly by us or any of our
Representatives; (ii) becomes lawfully available to us on a non-confidential
basis from a source other than you or one of your Representatives, which source
is not bound by a contractual or other obligation of confidentiality to any
Person; or (iii) was lawfully known to us on a non-confidential basis prior to
its disclosure to us by you.
H-2-1
Capitalized terms used but not defined herein shall have the
meaning assigned thereto in that certain Pooling and Servicing Agreement, dated
as of August 1, 2003, 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") and Serviced Companion Loan Paying Agent.
This Agreement, when signed by us, will constitute our
agreement with respect to the subject matter contained herein.
Very truly yours,
[NAME OF ENTITY]
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Company:
---------------------------------
Phone:
---------------------------------
cc: GMAC Commercial Mortgage Securities, Inc.
Trustee
H-2-2
EXHIBIT I
FORM OF NOTICE AND CERTIFICATION REGARDING
DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: GMAC Commercial Mortgage Corporation, in its capacity as Master
Servicer (the "Master Servicer") under the Pooling and Servicing
Agreement, dated as of August 1, 2003 (the "Pooling and Servicing
Agreement"), among the GMAC Commercial Mortgage Securities, Inc., as
Depositor, Servicer, GMAC Commercial Mortgage Corporation, as Master
Servicer and Special Servicer, and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee and Serviced Companion Loan Paying Agent.
Date: _____________________, 20__.
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates Series 2003-C2
Mortgage Loan (the "Mortgage Loan") identified by loan number ________
on the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties identified
on the Mortgage Loan Schedule by the following names:
________________________________________
________________________________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(1)______Notify you that the Mortgagor has consummated a
defeasance of the Mortgage Loan pursuant to the terms of the Mortgage Loan, of
the type checked below:
_____ a full defeasance of the payments scheduled
to be due in respect of the entire principal
balance of the Mortgage Loan; or
_____ a partial defeasance of the payments
scheduled to be due in respect of a portion
of the principal balance of the Mortgage
Loan that represents ____% of the entire
principal balance of the Mortgage Loan and,
under the Mortgage, has an allocated loan
amount of $__________ or ____% of the entire
principal balance.
I-1
(2) Certify that each of the following is true, subject to
those exceptions set forth with explanatory notes on Schedule I hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
a. The Mortgage Loan documents permit the defeasance, and
the terms and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
b. The defeasance was consummated on ____________, 20__.
c. The defeasance collateral consists of securities that
(i) constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940, as amended (15 U.S.C. 80a-1), (ii) are listed as
"Qualified Investments for `AAA' Financings" under Paragraphs 1, 2 or 3 of "Cash
Flow Approach" in Standard & Poor's Public Finance Criteria 2000, as amended to
the date of the defeasance, (iii) are rated "AAA" by Standard & Poor's, (iv) if
they include a principal obligation, the principal due at maturity cannot vary
or change, and (v) are not subject to prepayment, call or early redemption. Such
securities have the characteristics set forth below.
CUSIP RATE MAT PAY DATES ISSUED
d. The Master Servicer received an opinion of counsel
(from counsel approved by Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an adverse REMIC Event.
e. The Master Servicer determined that the defeasance
collateral will be owned by an entity (the "Defeasance Obligor") as to which one
of the statements checked below is true:
_____ the related Mortgagor was a Single-Purpose
Entity (as defined in Standard & Poor's
Structured Finance Ratings Real Estate Finance
Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the date
of the defeasance, and after the defeasance owns
no assets other than the defeasance collateral
and real property securing Mortgage Loans
included in the pool;
_____ the related Mortgagor designated a
Single-Purpose Entity (as defined in the S&P
Criteria) to own the defeasance collateral; or
_____ the Master Servicer designated a Single-Purpose
Entity (as defined in the S&P Criteria)
established for the benefit of the Trust to own
the defeasance collateral.
f. The Master Servicer received a broker or similar
confirmation of the credit, or the accountant's letter described below contained
statements that it reviewed a
I-2
broker or similar confirmation of the credit, of the defeasance collateral to an
Eligible Account (as defined in the S&P Criteria) in the name of the Defeasance
Obligor, which account is maintained as a securities account by the Trustee
acting as a securities intermediary.
g. As securities intermediary, Trustee is obligated to
make the scheduled payments on the Mortgage Loan from the proceeds of the
defeasance collateral directly to the Master Servicer's collection account in
the amounts and on the dates specified in the Mortgage Loan Documents or, in a
partial defeasance, the portion of such scheduled payments attributed to the
allocated loan amount for the real property defeased, increased by any
defeasance premium specified in the Mortgage Loan Documents (the "Scheduled
Payments").
h. The Master Servicer received from the Mortgagor written
confirmation from a firm of independent certified public accountants, who were
approved by Master Servicer in accordance with the Servicing Standard, stating
that (i) revenues from principal and interest payments made on the defeasance
collateral (without taking into account any earnings on reinvestment of such
revenues) will be sufficient to timely pay each of the Scheduled Payments after
the defeasance including the payment in full of the Mortgage Loan (or the
allocated portion thereof in connection with a partial defeasance) on its
Maturity Date (or, in the case of an ARD Loan, on its Anticipated Repayment
Date), (ii) the revenues received in any month from the defeasance collateral
will be applied to make Scheduled Payments within four (4) months after the date
of receipt, and (iii) interest income from the defeasance collateral to the
Defeasance Obligor in any calendar or fiscal year will not exceed such
Defeasance Obligor's interest expense for the Mortgage Loan (or the allocated
portion thereof in a partial defeasance) for such year.
i. The Master Servicer received opinions from counsel, who
were approved by Master Servicer in accordance with the Servicing Standard, that
(i) the agreements executed by the Mortgagor and/or the Defeasance Obligor in
connection with the defeasance are enforceable against them in accordance with
their terms, and (ii) the Trustee will have a perfected, first priority security
interest in the defeasance collateral described above.
j. The agreements executed in connection with the
defeasance (i) permit reinvestment of proceeds of the defeasance collateral only
in Permitted Investments (as defined in the S&P Criteria), (ii) permit release
of surplus defeasance collateral and earnings on reinvestment to the Defeasance
Obligor or the Mortgagor only after the Mortgage Loan has been paid in full, if
any such release is permitted, (iii) prohibit any subordinate liens against the
defeasance collateral, and (iv) provide for payment from sources other than the
defeasance collateral or other assets of the Defeasance Obligor of all fees and
expenses of the securities intermediary for administering the defeasance and the
securities account and all fees and expenses of maintaining the existence of the
Defeasance Obligor.
k. The entire principal balance of the Mortgage Loan as of
the date of defeasance was $________ [$5,000,000 or less or less than one
percent of pool balance, whichever is less] which is less than 1% of the
aggregate Certificate Principal Balance of the Certificates as of the date of
the most recent Distribution Date Statement received by us (the "Current
Report").
I-3
l. The defeasance described herein, together with all
prior and simultaneous defeasances of Mortgage Loans, brings the total of all
fully and partially defeased Mortgage Loans to $___________, which is ____% of
the aggregate Certificate Principal Balance of the Certificates as of the date
of the Current Report.
(3) Certify that, in addition to the foregoing, Master
Servicer has imposed such additional conditions to the defeasance, subject to
the limitations imposed by the Mortgage Loan documents, as are consistent with
the Servicing Standard.
(4) Certify that Schedule II hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance described above and that originals or copies of
such agreements, instruments and opinions have been transmitted to the Trustee
for placement in the related Mortgage File or, to the extent not required to be
part of the related Mortgage File, are in the possession of the Master Servicer
as part of the Master Servicer's Mortgage File.
(5) Certify and confirm that the determinations and
certifications described above were rendered in accordance with the Servicing
Standard set forth in, and the other applicable terms and conditions of, the
Pooling and Servicing Agreement.
(6) Certify that the individual under whose hand the Master
Servicer has caused this Notice and Certification to be executed did constitute
a Servicing Officer as of the date of the defeasance described above.
(7) Agree to provide copies of all items listed in Schedule II
to you upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:
-------------------------------------
Name:
Title:
I-4
Schedule I to Exhibit I
EXCEPTIONS
I-5
Schedule II to Exhibit I
MATERIAL AGREEMENTS, INSTRUMENTS, ORGANIZATIONAL DOCUMENTS AND OPINIONS OF
COUNSEL AND ACCOUNTANTS
I-6
EXHIBIT J
FORM OF INSURANCE SUMMARY REPORT
--------------------------------------------------------------------------------
Mortgage Loan
Number Current Loan Balance
Mortgage Loan Borrower Property ($)
--------------------------------------------------------------------------------
1234567
(Sample Entry)
--------------------------------------------------------------------------------
1234568
(Sample Entry)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Insurance compliant with
Mortgage Documents- Adequate
excluding Terrorism Terrorism
Term of Insurance Coverage (Y/N) Coverage (Y/N)
--------------------------------------------------------------------------------
12/31/01-12/31/02
--------------------------------------------------------------------------------
12/31/01-12/31/02
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(1) If so, identify specific coverage affected (i.e. Casualty, Liability,
Business Interruption, etc.)
--------------------------------------------------------------------------------
(2) Please indicate either N/A if not applicable or the dollar amount of the
coverage.
--------------------------------------------------------------------------------
(3) If the mortgage loan documents contains language for "such other insurance
as may be reasonably required..." and there is a distinction between Liability
and Casualty Coverage, please identify which coverage offers such latitude.
--------------------------------------------------------------------------------
J-7
EXHIBIT K
FORM OF FIRST ANNIVERSARY RESERVE REPORT
Loan Number Property Name Deferred Other Initial Comments
Maintenance Balance
K-7
EXHIBIT L-1
CLOSING MORTGAGE FILE REVIEW CERTIFICATION
custodian initial certification
August 28, 2003
Re: Pooling and Servicing Agreement, dated as of August 1, 2003 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 and Serviced Companion Loan Paying
Agent.
Ladies and Gentlemen:
In accordance with Section 2.01(b) of the above-captioned Pooling and
Servicing Agreement, subject to further review of the contents thereof,
the undersigned, as Custodian, hereby certifies that (except as noted
on the attachment hereto the "Loan Exception Report") it has received
the documents referred to in Section 2.01 of the Pooling and Servicing
Agreement with respect to each Mortgage Loan listed in the related
Mortgage Loan Schedule and such documents appear to bear original
signatures or copies of original signatures if the original documents
have not yet been delivered.
The Trustee has made no independent examination of any such documents
beyond the review specifically required in the above-referenced Pooling
and Servicing Agreement. Capitalized words and phrases used herein
shall have the respective meanings assigned to them in the
above-captioned Pooling and Servicing Agreement. This Certificate is
subject in all respects to the terms of said Pooling and Servicing
Agreement.
Xxxxx Fargo Bank Minnesota, National
Association as Custodian
By:
-------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
POST-CLOSING MORTGAGE
FILE REVIEW CERTIFICATION
FORM OF FINAL CERTIFICATION OF TRUSTEE
[Date]
GMAC Commercial Mortgage Securities, Inc. Xxxxxx Xxxxxxx & Co. Incorporated,
000 Xxxxxx Xxxx 0000 Xxxxxxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
[Controlling Class Certificateholders] German American Capital Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
GMAC Commercial Mortgage Corporation Xxxxxxx Xxxxx Mortgage Company
000 Xxxxxx Xxxx 00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement, dated as of August 1, 2003
("Pooling and Servicing Agreement") relating to GMAC
Commercial Mortgage Securities Inc., Mortgage Pass-Through
Certificates, Series 2003-C2
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.
L-2-1
[SIGNATURE PAGE FOLLOWS]
L-2-2
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
AS TRUSTEE
By:
-----------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATION TO
BE PROVIDED WITH FORM 10-K
GMAC Commercial Mortgage Securities, Inc.
Commercial Mortgage Pass-Through Certificates
Series 2003-C2
I, [identify the certifying individual], certify that:
I have reviewed this annual report on Form 10-K, and all reports on Form 8-K
containing distribution date reports filed in respect of periods included in the
year covered by this annual report, of the trust (the "Trust") created pursuant
to the Pooling and Servicing Agreement, dated as of August 1, 2003 (the "Pooling
and Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc., as
depositor, GMAC Commercial Mortgage Corporation, as master servicer (the "Master
Servicer") and as special servicer (the "Special Servicer"), and Xxxxx Fargo
Bank Minnesota, National Association, as trustee (the "Trustee") and Serviced
Companion Loan Paying Agent;
Based on my knowledge, the information in these reports, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last day of the period
covered by this annual report;
Based on my knowledge, the servicing information required to be provided to the
trustee by the Master Servicer and the Special Servicer under the Pooling and
Servicing Agreement for inclusion in these reports is included in these reports;
I am responsible for reviewing the activities performed by the Master Servicer
and the Special Servicer under the Pooling and Servicing Agreement and based
upon the review required under the Pooling and Servicing Agreement, and except
as disclosed in the report, the Master Servicer and the Special Servicer have
fulfilled their obligations under the Pooling and Servicing Agreement; and
I have disclosed to the Trust's certified public accountants all significant
deficiencies relating to the Master Servicer's or Special Servicer's compliance
with the minimum servicing standards in accordance with a review conducted in
compliance with the Uniform Single Attestation Program for Mortgage Bankers or
similar standard as set forth in the Pooling and Servicing Agreement.
Date:
---------------------
--------------------------
[Signature]
[Title]
X-0
XXXXXXX X-0
FORM OF CERTIFICATION TO
BE PROVIDED TO DEPOSITOR
GMAC Commercial Mortgage Securities, Inc.
Commercial Mortgage Pass-Through Certificates
Series 2003-C2
I, [identify the certifying individual], a ______________ of Xxxxx Fargo Bank
Minnesota, National Association, certify to GMAC Commercial Mortgage Securities,
Inc. and its officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification, that:
I have reviewed the annual report on Form 10-K for the fiscal year [______], and
all reports on Form 8-K containing distribution date reports filed in respect of
periods included in the year covered by that annual report, of the trust created
pursuant to the Pooling and Servicing Agreement, dated as of August 1, 2003 (the
"Pooling and Servicing Agreement"), among GMAC Commercial Mortgage Securities,
Inc., as depositor, GMAC Commercial Mortgage Corporation, as master servicer
(the "Master Servicer") and as special servicer (the "Special Servicer"), and
Xxxxx Fargo Bank Minnesota, National Association, as trustee (the "Trustee") and
Serviced Companion Loan Paying Agent;
Based on my knowledge, the information in these reports, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last day of the period
covered by that annual report;
Based on my knowledge, the servicing information provided to the Trustee by the
Master Servicer and the Special Servicer under the Pooling and Servicing
Agreement for inclusion in these reports is included in these reports.
Date:
---------------------
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
--------------------------
[Signature]
[Title]
M-2
EXHIBIT M-3
FORM OF CERTIFICATION TO
BE PROVIDED TO DEPOSITOR
GMAC Commercial Mortgage Securities, Inc.
Commercial Mortgage Pass-Through Certificates
Series 2003-C2
I, ________________ a ____________________ of GMAC COMMERCIAL MORTGAGE
CORPORATION ("GMACCM") on behalf of GMACCM, as [Master Servicer] [Special
Servicer] [(the "Master Servicer")] [(the "Special Servicer")], hereby certify
to GMAC Commercial Mortgage Securities, Inc. (the "Depositor") and its officers,
directors and affiliates, to the extent that the following information is within
the [Master Servicer's] [Special Servicer's] area of responsibilities and duties
under the Pooling and Servicing Agreement, and with the knowledge and intent
that they will rely upon this certification, that:
1. I am responsible for reviewing the activities performed by the
[Master Servicer] [Special Servicer] under the pooling and servicing agreement,
dated as of August 1, 2003 (the "Pooling and Servicing Agreement"), among the
Depositor, as depositor, GMACCM, as master servicer and as special servicer, and
Xxxxx Fargo Bank Minnesota, National Association, as trustee and Serviced
Companion Loan Paying agent, and, based upon the review performed as required
under Section 3.13 of the Pooling and Servicing Agreement, and except as
disclosed on Schedule I hereto, the [Master Servicer] [Special Servicer], to my
knowledge, has fulfilled its material obligations under the Pooling and
Servicing Agreement, including the provision of all reports required to be
submitted by the [Special Servicer] [Master Servicer] thereunder, and that, to
the knowledge of the [Master Servicer] [Special Servicer], such reports do not
contain any material misstatements or omissions; and
2. I have disclosed to the [Master Servicer's] [Special Servicer's]
certified public accountants all significant deficiencies, to my knowledge,
relating to the [Master Servicer's] [Special Servicer's] compliance with the
minimum servicing standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or similar
standard as set forth in the Pooling and Servicing Agreement.
Capitalized terms used herein and not defined shall have the respective meanings
given to them in the Pooling and Servicing Agreement.
Date:
---------------------
[NAME OF [MASTER SERVICER] [SPECIAL SERVICER]]
By:
------------------------------------
Name:
Title:
M-3
Schedule I
MORTGAGE LOAN SCHEDULE
Loan Number Property Name Address City
--------------------------------------------------------------------------------------------------------------------------
1 Xxxx Xxxxxxx Tower 000 Xxxxxxxxx Xxxxxx and 000 Xxxxxxxxx Xx. Xxxxxx
00000 Fashion Outlet of Las Vegas 32100 South Las Vegas Boulevard Xxxxx
09-1001093 DDR Portfolio-Various Various Various
09-1001093-A DDR Portfolio - Meridian Crossroads 0000 X. Xxxxxxxx Xx Xxxxxxxx
09-1001093-B DDR Portfolio - Xxxxx Xxxxxxxx Xxxxx 0000 Xxxxxxx 000 Xxxxx Xxxxxxxxxx
09-1001093-C DDR Portfolio - Jacksonville Regional 0000 Xxxx Xxxxxx Xxxxxxxxxxxx
09-1001093-D DDR Portfolio - Green Ridge Square 0000 Xxxxxx Xxxxxx Xxxxxx
09-1001093-E DDR Portfolio - Indian Hills Plaza 4208 E. Blue Grass Road Mt. Pleasant
09-1001093-F DDR Portfolio - Big Oaks Crossing 0000 X. Xxxxxxx Xxxxxx Tupelo
09-1001093-G DDR Portfolio - Oxford Commons 0000 Xxxxxxx Xxxx Xxxxxx
09-1001093-H DDR Portfolio - University Center 326 - 000 X. Xxxxxxx Xxxxxx Xxxxxxxxxx
09-1001093-I DDR Portfolio - Uptown Solon 6025 Xxxxx Drive Solon
09-1001093-J DDR Portfolio - North Pointe Plaza 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxx
XX00000 Xxxxxxxxx Xxxx 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxx Xxxxx
09-0001735 Geneva Commons 000-000 Xxxxxxx Xxxxx Xxxxxx
00000 River Oaks West Apartments 00000 Xxxxxxxxx Xxxxx Xxxx
XXX00000 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxx Xxxx
XXX00000 La Xxxxxxxx Xxxxxxx - X 000-000 Xxxxxxxx Xxxxxxx Round Rock
DBM18807 Victoria Place 00000 Xxxxxxxx Xxxxx Xxxxxx Orlando
DBM18404 Gateway Center Bed Bath & Beyond 381, 409 & 000 Xxxxxxx Xxxxx Xxxxxxxx
00-00000 Stop & Xxxx Xxxxxxxxx 0- Xxxxxx 00 Xxxxxxxx Xxxx Xxxxxx
02-12748 Stop & Xxxx Xxxxxxxxx 0- Xxxxxxxxx 0000 Xxxxxxxxx Xxxxxxxx Xxxxxxxxx
03-13726 Perimeter Center Office Building 8665 and 0000 Xxxx Xxxxxxxx Xxxxx Xxxxxxxxxx
00000 Xxxxx Del Oro 0000 Xxxxx Xxxxxxxxx Xxxx Xxxx
DBM18861 Xxxxxxxx Xxxxx 00 Xxxxx Xxxxxx Xxxxxx Orlando
DBM18317 Virginia FF Retail Portfolio Various Various
DBM18317-1 Kempsville Shopping Center 0000-0000 Xxxxxxxxxx Xxxx Xxxxxxxx Beach
DBM18317-2 General Booth Shopping Center 1615 General Booth Boulevard Virginia Beach
XXX00000-0 Xxxx Xxxxx Xxxxxxx Shopping Center 0000 Xxxxx Xxxx Xxxxxx Xxxxxxx
DBM18317-4 Little Creek Shopping Center 000 Xxxx Xxxxxx Xxxxx Xxxx Xxxxxxx
DBM18317-5 Farm Fresh Smithfield Shopping Center 1282 Smithfield Shopping Plaza Smithfield
02-12749 Stop & Shop Portfolio 2 - Middletown 000 Xxxxx 000 Xxxxxxx
02-12750 Stop & Shop Portfolio 2 - Norwalk 000 Xxxx Xxxxxx Xxxxxxx
00000 Doubletree Suites (Charleston) 000 Xxxxxx Xxxxxx & 00 Xxxxx Xxxxxx Xxxxxxxxxx
DBM18816 Wiener Portfolio I Various Various
DBM18816-1 000-00 Xxxxxxx Xxx. 000-00 Xxxxxxx Xxxxxx Xxxxxxxx
XXX00000-0 00-00 00xx Xxxx 00-00 00xx Xxxx Xxxxxxx Xxxxxxx
DBM18816-3 00-00 00xx Xxxxxx 00-00 00xx Xxxxxx Xxxxxxx Xxxxxxx
DBM18816-4 000-000 Xxxx 00xx Xxxxxx 000-000 Xxxx 00xx Xxxxxx Xxx Xxxx
XXX00000 Canterbury and Oxford Apartments 0000 Xxxxxxxxxx Xxxxx Xxxxxx Xxxxx
Xxxx Portfolio Various Various
03-13147 Park Portfolio - Xxxxxxx Metro Park 6801 & 0000 Xxxxxxxxxx Xxxxxx & 0000 Xxxxxx Xxx. Xxxxxxxxx
03-13149 Park Portfolio - Takoma Park 0000 Xxxxxxx Xxxxxx Xxxxxxxxxx
00-00000 Park Portfolio - Shepherd Park Plaza 0000 Xxxxxxx Xxxxxx, XX Xxxxxxxxxx
00-00000 Park Portfolio - 00000 Xxxxxxxx Xxxxx 12345 and 00000 Xxxxxxxx Xxxxx Xxxxxxxxx
03-13803 Sherwood Village 000 Xxxxxxxx Xxxx Xxxxx Xxxxx
00000 Estancia Apartments 0000 Xxxxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxxxxx
03-14200 Chapel Hill Apartments 0000 Xxxx Xxxxxxx Xxxx Xxx Xxxxx
00000 Woodbridge Crossing Retail Center 000 Xxxxx Xxxxxx Xxxxxxxxxx
09-0001736 Silver Xxxx Xxxxx Xxxxxxxxxx 0000 Xxxxx Xxxx Xxxxx Fenton
09-0001734 The Vineyards at Castlewoods 1000 Vineyard Drive Xxxxxxx
09-0001749 Toscana at MetroWest Apartments 0000 Xxxxxxxx Xxxxx Xxxxxxx
00000 Gateway Corporate Center 21660 and 00000 Xxxx Xxxxxx Xxxxx Diamond Bar
03-13195 Marina View Towers 0000-0000 0xx Xxxxxx X.X. Xxxxxxxxxx
00000 G&L Portfolio- 000 Xxxxx Xxxxxxx 000 Xxxxx Xxxxxxx Xxxxx & 0000 Xxxxxxxx Xxx Xxxxxxx Xxxxx
09-0001755 Rosedale Marketplace 0000 Xxxxxxxx Xxx. Xxxxx Xxxxxxxxx
00-00000 Ivanhoe Apartments 0000 Xxxxxxx Xxxxx Xxxxxxxxxxx
00-00000 Xxxxxxxx xx the Park 000 Xxxxx Xxxxxx Xxxxxxxx
00000 000 Xxxxxxxx Xxx 000 Xxxxxxxx Xxxxxx Xxxxxxxx
00000 000 Xxxxx Xxxxxxx Xxxxx 421 North Xxxxxxx Drive Xxxxxxx Hills
09-0001724 Timberlake Village Apartments 0000-0000 Xxxxxx Xxxx Xxxxx Xxxxxxx
XXX00000 Laurel Springs Apartments 0000 Xxx Xxxxx Xxxx Xxxx Xxxxx
00000 G&L Portfolio- 000 Xxxxx Xxxxxxx 000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx Xxxxx
DBM18747 Colonial Financial Center One Commerce Street Xxxxxxxxxx
09-0001777 The Boulders IV 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxxxx
00000 Buschs Shopping Center 00000 Xxxxx Xxxxxxx Xxxx Xxxxxxxx
00000 Homewood Suites/Miami Blue Lagoon 0000 Xxxx Xxxxxx Xxxxx Xxxxx
00000 Xxxxx Xxxxx Xxxxxx 0000 XxXxx Xxxxx Xxxxxx
38864 Victory- Cedar Hills 0000-0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx
09-0001752 Turnberry Plaza 0000 X.X. 000xx Xxxxxx Xxxxxxxx
00000 8520-8522 Xxxxxxxx Xxxxxxxxx 0000-0000 Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxx
09-0001751 Riverbend Apartments 000 Xxxxxxxxx Xxxxx Xxxxxxxxxxxxxxx
09-0001776 Chippewa and Xxxxxx Plaza Various Various
09-0001776-A Chippewa Center 0000 Xxxxxxxxxxxx Xxxxxxxxx Xxxxxx Xxxxx
09-0001776-B Xxxxxx Plaza Shopping Center 000 Xxx Xxxxxx Xxxxxxx Xxxxxxxxxx
09-0001739 Westwater Apartments 00 Xxxxxxx Xxx Xxxxxxxx
00000 Xxxxxxx Xxxxxxxx Xxxx 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxxxx
03-12924 Charleston Plaza 00000-00000 X. Xxxxxxxxxx Xxxx. Xxx Xxxxx
00000 Branford Business Center 00-00 Xxxx Xxxxxxxxxx Xxxx Xxxxxxxx
DBM18856 Ocotillo Plaza 0000 Xxxx Xxxxxxxxx Xxxxxx Xxx Xxxxx
00-0000000 The Boulders V 0000 Xxxxxxxx Xxxxxxx Xxxxxxxx
09-0001732 Continental Plaza 0000-0000 Xxxx Xxxxx Xxxxxx King of Prussia
09-0001769 The Willows at Lone Mountain Apartments 0000 Xxxxx Xxxxxxxx Xxx Xxx Xxxxx
09-0001779 Xxxxxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxx Xxxxxxx
00000 TownePlace Suites-Sterling 00000 Xxxxxxxxx Xxxxx Xxxxxxxx
09-0001761 Long & Xxxxxx Xxxxxxxx 0000 Xxxxxxxxxx Xxxxx Xxxx Xxxxx
00000 Saratoga Palms Apartments 0000 Xxxxxxxx Xxxxx Xxxxxx Xxx Xxxxx
00000 Madison Marketplace 25377-25395 Madison Xxxxxx Xxxxxxxx
XXX00000 Wiloaks Apartments 0000 Xxxxxxx Xxxxx Xxxxxxxxxx
00000 Xxxxxxx Xxxxxxx Apartments 0000 Xxxxx Xxxxxxx Xxxx Xxxxxx
XXX00000 Country Gables Apartments 00000 Xxxxx 00xx Xxxxxx Xxxxxxxx
09-0001771 Xxxxxxxx Centre 0000 Xxxxxxxxxx Xxxx Xxxxxxxx
02-12233 Broadview Gardens Apartments 0000 Xxxxxxxxx Xxxx Xxxxxxxxx
00000 Friars Office Building 0000 Xxxxxxx Xxxxxx Xxxxx Xxx Xxxxx
XXX00000 Walgreens Melbourne 0000 Xxxxxxx Xxxx Xxxxxxxxx
00000 Xxxxx Xxxxx Xxxxxxxxxx 000 Xxxx Xxxx Xxxxxx Xxxx Xxxx
02-11630 Drug Emporium 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxxxx
00000 Lincoln Heights Apartments 0000 Xxxxxx Xxxxx, XX Xxxxxxxxxxx
09-0001753 Xxxxx Xxxxx Shopping Center 0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxx
09-0001728 Millburn Office 00 Xxxx Xxxxxx Xxxxxxxx
00000 Xxx Xxxxxx Plaza 0000 Xxxx Xxxxxxxx Xxxx Xxxx Xxxxxxxxxx
00000 Xxxxxxx Center 0000-0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx
00000 Pacific Arcade Shopping Center 0000-0000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxx Xxxx
09-0001756 Hillview Plaza - Shops 00000 Xxxx Xxxx Xxxxxxx Xxxxxxxxx Xxxxx
00000 0000 Xxxxxxxxx Xxxxxxxxx 0000-0000 Xxxxxxxxx Boulevard Xxxxxx City
38421 Santa Xxxxx Apartments 0000 X. Xxxxx Xxxxx Xxxxxx Xxxxxx
00000 Xxxxxx Mill West 0000-00 Xxxxxx Xxxx Xxxx Xxxx Xxxxxxxxx
00000 Brookhill Village Apartments 000 Xxxxxxxxx Xxxxxx Pell City
09-0001740 Northfield Village Center 000-000 Xxxx Xxxx Xxxxxxxxxx
00000 Summer Stone Apartments 000 Xxx Xxxx 000 Xxxxxx Xxxx
00000 Bear Lakes Mobile Estate 000 Xxxxx Xxxx Xxxxxxx
DBM18808 Xxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxxx Ocala
09-0001781 Harley Commons 000 Xxxx Xxxxxx Xxxxxxxxxxxx
00-00000 0000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxxxx
00000 CVS Pharmacy (Hialeah) 0000 Xxxx 00xx Xxxxxx Hialeah
Mortgage Remaining
Rate Rate Original Cut-Off Date Term to
Loan Number State Zip Code (%) Type Balance ($) Balance ($) Maturity (Mos.) Maturity Date
-----------------------------------------------------------------------------------------------------------------------------------
1 Xxxxxxxxxxxxx 00000 4.62500 Fixed 75,000,000 75,000,000 56 4/8/2008
40929 Nevada 89019 6.52000 Fixed 61,000,000 60,956,117 119 7/1/2013
09-1001093 Various Various 4.41000 Fixed 50,000,000 49,643,753 55 3/1/2008
09-1001093-A Idaho 83642
09-1001093-B Alabama 35242
09-1001093-C Florida 32218
09-1001093-D Michigan 49544
09-1001093-E Michigan 48858
09-1001093-F Mississippi 38804
09-1001093-G Xxxxx Xxxxxxxx 00000
09-1001093-H Xxxxx Xxxxxxxx 00000
09-1001093-I Ohio 44139
09-1001093-J Xxxxx Xxxxxxxx 00000
GA18896 Nevada 89109 4.27375 Fixed 48,728,500 48,667,436 119 7/1/2013
09-0001735 Illinois 60134 5.65000 Fixed 48,000,000 47,861,181 117 5/1/2013
40723 Michigan 48050 5.53000 Fixed 46,500,000 46,500,000 120 8/1/2013
DBM18752 Xxx Xxxx 00000 4.57000 Fixed 45,000,000 45,000,000 60 8/1/2008
DBM18727 Texas 78681 5.20000 Fixed 35,400,000 35,400,000 120 8/1/2013
DBM18807 Florida 32828 4.72600 Fixed 34,120,000 34,120,000 120 8/1/2013
DBM18404 Xxx Xxxx 00000 5.43000 Fixed 34,100,000 34,029,329 118 6/1/2013
02-11534 Xxx Xxxx 00000 5.69000 Fixed 18,650,000 18,533,285 114 2/1/2013
02-12748 Xxx Xxxx 00000 5.69000 Fixed 15,275,000 15,179,406 114 2/1/2013
03-13726 Arizona 85255 5.60000 Fixed 32,000,000 31,936,068 118 6/1/2013
38274 Arizona 85208 5.24000 Fixed 28,000,000 27,939,576 58 6/1/2008
DBM18861 Florida 32801 4.97000 Fixed 26,500,000 26,500,000 60 8/1/2008
DBM18317 Virginia Various 6.10000 Fixed 26,000,000 26,000,000 120 8/1/2013
DBM18317-1 Virginia 23464
DBM18317-2 Virginia 23454
DBM18317-3 Virginia 23434
DBM18317-4 Virginia 23505
DBM18317-5 Virginia 23430
02-12749 Xxx Xxxx 00000 5.69000 Fixed 16,375,000 16,272,522 114 2/1/2013
02-12750 Xxxxxxxxxxx 00000 5.69000 Fixed 9,250,000 9,192,112 114 2/1/2013
39438 Xxxxx Xxxxxxxx 00000 5.94000 Fixed 25,000,000 25,000,000 82 6/1/2010
DBM18816 New York Various 4.89000 Fixed 23,840,000 23,814,006 59 7/1/2008
DBM18816-1 Xxx Xxxx 00000
DBM18816-2 Xxx Xxxx 00000
DBM18816-3 Xxx Xxxx 00000
XXX00000-0 Xxx Xxxx 00000
DBM18982 Xxxxx Xxxxxxxx 00000 5.40000 Fixed 22,000,000 22,000,000 120 8/1/2013
Various Various 6.60000 Fixed 21,325,000 21,325,000 120 8/5/2013
03-13147 Maryland 20737
03-13149 District of Columbia 20012
03-13146 District of Columbia 20012
03-13148 Maryland 20852
03-13803 Xxx Xxxxxx 00000 6.01000 Fixed 20,800,000 20,800,000 120 8/1/2013
41671 California 92508 4.50000 Fixed 19,584,000 19,560,659 59 7/1/2008
03-14200 Nevada 89118 5.11000 Fixed 19,040,000 19,040,000 120 8/1/2013
40389 Xxx Xxxxxx 00000 5.70000 Fixed 18,600,000 18,600,000 120 8/1/2013
09-0001736 Michigan 48430 5.49000 Fixed 17,500,000 17,500,000 117 5/1/2013
09-0001734 Mississippi 39047 5.53000 Fixed 16,800,000 16,750,072 117 5/1/2013
09-0001749 Florida 32835 5.45000 Fixed 15,000,000 15,000,000 118 6/1/2013
40644 California 91765 4.85000 Fixed 14,700,000 14,665,588 58 6/1/2008
03-13195 District of Columbia 20024 5.00000 Fixed 14,500,000 14,467,094 58 6/1/2008
40641 California 90210 5.69000 Fixed 14,175,000 14,162,272 119 7/1/2013
09-0001755 Minnesota 55113 5.15000 Fixed 13,575,000 13,575,000 118 6/1/2013
02-12777 Pennsylvania 15146 5.21000 Fixed 12,800,000 12,787,060 119 7/9/2013
02-12103 Xxxxxxxxxxx 00000 5.88000 Fixed 12,798,000 12,709,577 113 1/1/2013
40755 Xxx Xxxxxx 00000 5.30000 Fixed 12,560,000 12,560,000 120 8/1/2013
40793 California 90210 5.22000 Fixed 12,500,000 12,487,394 119 7/1/2013
09-0001724 Wisconsin 53719 5.19000 Fixed 11,600,000 11,600,000 117 5/1/2013
DBM18863 Xxxxx Xxxxxxxx 00000 4.91000 Fixed 11,600,000 11,587,411 119 7/1/2013
40734 California 90210 5.69000 Fixed 11,325,000 11,314,831 119 7/1/2013
DBM18747 Alabama 36104 4.33000 Fixed 11,040,000 11,026,335 59 7/1/2008
09-0001777 Virginia 23225 5.20000 Fixed 11,000,000 11,000,000 119 7/1/2013
34830 Michigan 48170 5.72000 Fixed 10,500,000 10,500,000 120 8/1/2013
00000 Xxxxxxx 00000 6.50000 Fixed 10,450,000 10,437,932 119 7/1/2013
41269 Texas 78735 5.79000 Fixed 10,250,000 10,241,028 119 7/1/2013
00000 Xxxxxxx 00000 5.80000 Fixed 10,250,000 10,177,989 79 3/1/2010
09-0001752 Florida 33180 4.90000 Fixed 10,000,000 10,000,000 119 7/1/2013
39856 California 90232 5.65000 Fixed 10,000,000 9,990,929 119 7/1/2013
09-0001751 Virginia 22911 5.33000 Fixed 9,700,000 9,700,000 118 6/1/2013
09-0001776 Pennsylvania Various 5.78000 Fixed 9,500,000 9,500,000 120 8/1/2013
09-0001776-A Pennsylvania 15010
09-0001776-B Pennsylvania 15370
09-0001739 Xxxxxxxxxx 00000 5.68000 Fixed 9,400,000 9,381,544 118 6/1/2013
41027 Texas 79110 5.72000 Fixed 8,750,000 8,750,000 180 8/1/2018
03-12924 Nevada 89135 6.20000 Fixed 8,500,000 8,500,000 120 8/1/2013
40015 Xxxxxxxxxxx 00000 5.60000 Fixed 7,300,000 7,285,416 118 6/1/2013
DBM18856 Nevada 89121 5.47000 Fixed 6,800,000 6,800,000 84 8/1/2010
09-0001778 Virginia 23225 5.20000 Fixed 6,600,000 6,600,000 119 7/1/2013
09-0001732 Pennsylvania 19406 5.75000 Fixed 6,600,000 6,587,238 118 6/1/2013
09-0001769 Nevada 89129 5.35000 Fixed 6,480,000 6,473,668 119 7/1/2013
09-0001779 Xxxxxxx 00000 5.20000 Fixed 6,250,000 6,250,000 120 8/1/2013
32994 Virginia 20165 7.87500 Fixed 6,150,000 5,999,574 97 9/1/2011
09-0001761 Virginia 23060 5.45000 Fixed 5,920,000 5,920,000 118 6/1/2013
41499 Nevada 89121 5.34000 Fixed 5,750,000 5,750,000 120 8/1/2013
41157 California 92562 5.80000 Fixed 5,500,000 5,500,000 120 8/1/2013
DBM17820 Xxxxxxx 00000 5.76000 Fixed 5,100,000 5,100,000 120 8/1/2013
38423 Arizona 85713 5.45000 Fixed 5,100,000 5,089,476 118 6/1/2013
DBM18886 Arizona 85306 5.47000 Fixed 5,000,000 5,000,000 120 8/1/2013
09-0001771 Virginia 20115 5.05000 Fixed 5,000,000 4,982,073 179 7/1/2018
00-00000 Xxxx 00000 6.00000 Fixed 5,000,000 4,950,393 113 1/1/2013
40720 California 92108 5.75000 Fixed 4,050,000 4,050,000 120 8/1/2013
DBM18864 Florida 32940 6.53000 Fixed 3,907,259 3,907,259 297 5/1/2028
40740 California 94301 5.38000 Fixed 3,900,000 3,896,217 119 7/1/2013
02-11630 Pennsylvania 19137 6.05000 Fixed 3,800,000 3,767,525 111 11/1/2012
41029 Xxx Xxxxxx 00000 5.30000 Fixed 3,653,600 3,645,815 118 6/1/2013
09-0001753 Texas 78741 5.44000 Fixed 3,630,000 3,622,493 118 6/1/2013
09-0001728 Xxx Xxxxxx 00000 5.10000 Fixed 3,375,000 3,363,966 117 5/1/2013
41098 Arizona 85255 5.35000 Fixed 3,225,000 3,225,000 118 6/1/2013
40651 California 91762 5.50000 Fixed 3,200,000 3,196,986 119 7/1/2013
40731 California 90255 5.51000 Fixed 3,100,000 3,093,685 118 6/1/2013
09-0001756 Xxxxx Xxxxxxxx 00000 5.65000 Fixed 2,830,000 2,824,407 118 6/1/2013
41468 California 90230 5.81000 Fixed 2,700,000 2,700,000 120 8/1/2013
38421 Arizona 85706 5.45000 Fixed 2,600,000 2,594,635 118 6/1/2013
40524 Texas 76012 5.85000 Fixed 2,550,000 2,550,000 120 8/5/2013
41574 Alabama 35125 4.85000 Fixed 2,500,000 2,500,000 144 8/1/2015
09-0001740 Illinois 60093 5.85000 Fixed 2,500,000 2,497,845 119 7/1/2013
40585 Alabama 36877 5.60000 Fixed 2,260,000 2,255,485 118 6/1/2013
00000 Xxxxxx 00000 5.78000 Fixed 2,100,000 2,098,157 119 7/1/2013
DBM18808 Florida 34470 4.75000 Fixed 2,000,000 2,000,000 60 8/1/2008
09-0001781 Pennsylvania 19438 5.70000 Fixed 1,900,000 1,900,000 120 8/1/2013
03-13681 California 90025 6.07000 Fixed 1,851,411 1,851,411 120 8/1/2013
00000 Xxxxxxx 00000 5.68000 Fixed 1,600,000 1,595,404 117 5/1/2013
Annualized Broker
ARD Credit Cross Collateralized Debt Strip
Loan Number Loan Lease Prepayment Provision Groups Service Loan
------------------------------------------------------------------------------------------------------------------------------------
1 Lockout/28_Defeasance/29_0%/3 3,516,927
40929 Lockout/25_Defeasance/92_0%/3 4,636,370
09-1001093 Lockout/28_Defeasance/27_0%/4 3,304,419
09-1001093-A
09-1001093-B
09-1001093-C
09-1001093-D
09-1001093-E
09-1001093-F
09-1001093-G
09-1001093-H
09-1001093-I
09-1001093-J
GA18896 Lockout/25_Defeasance/91_0%/4 2,884,715
09-0001735 Lockout/27_Defeasance/89_0%/4 3,324,878 Yes
40723 Lockout/24_Defeasance/91_0%/5 3,178,773
DBM18752 Lockout/24_Defeasance/32_0%/4 2,758,606
DBM18727 Lockout/24_Defeasance/92_0%/4 2,332,623
DBM18807 Lockout/24_Defeasance/92_0%/4 2,129,914
DBM18404 Lockout/26_Defeasance/90_0%/4 2,305,453
02-11534 Yes Lockout/30_Defeasance/86_0%/4 Group A 1,297,518
02-12748 Yes Lockout/30_Defeasance/86_0%/4 Group A 1,062,713
03-13726 Lockout/26_Defeasance/90_0%/4 2,204,463
38274 Lockout/26_Defeasance/30_0%/4 1,853,324
DBM18861 Lockout/24_Defeasance/32_0%/4 1,701,267
DBM18317 Yes Lockout/24_Defeasance/89_0%/7 1,890,704
DBM18317-1 Yes
DBM18317-2 Yes
DBM18317-3 Yes
DBM18317-4 Yes
DBM18317-5 Yes
02-12749 Yes Lockout/30_Defeasance/86_0%/4 Group B 1,139,242
02-12750 Yes Lockout/30_Defeasance/86_0%/4 Group B 643,541
39438 Lockout/38_Defeasance/44_0%/2 1,921,916
DBM18816 Lockout/25_Defeasance/31_0%/4 1,516,565
DBM18816-1
DBM18816-2
DBM18816-3
DBM18816-4
DBM18982 Lockout/24_Defeasance/92_0%/4 1,482,441
Lockout/24_Defeasance/92_0%/4 1,743,879
03-13147
03-13149
03-13146
03-13148
03-13803 Yes Lockout/24_Defeasance/92_0%/4 1,498,083
41671 Lockout/36_>YM or 1%/20_0%/4 1,190,751
03-14200 Lockout/24_Defeasance/92_0%/4 1,350,355
40389 Lockout/24_Defeasance/92_0%/4 1,295,454
09-0001736 Lockout/27_Defeasance/89_0%/4 1,191,040
09-0001734 Lockout/27_Defeasance/89_0%/4 1,148,460 Yes
09-0001749 Lockout/26_Defeasance/90_0%/4 1,016,381
40644 Lockout/26_>YM or 1%/30_0%/4 930,848
03-13195 Lockout/26_Defeasance/30_0%/4 934,070
40641 Lockout/25_Defeasance/90_0%/5 986,183
09-0001755 Lockout/26_Defeasance/90_0%/4 889,477
02-12777 Lockout/25_Defeasance/91_0%/4 844,383
02-12103 Lockout/31_Defeasance/85_0%/4 908,951
40755 Lockout/24_Defeasance/92_0%/4 836,955
40793 Lockout/25_Defeasance/91_0%/4 825,521
09-0001724 Lockout/27_Defeasance/89_0%/4 763,503
DBM18863 Lockout/25_Defeasance/91_0%/4 739,618
40734 Lockout/25_Defeasance/90_0%/5 787,903
DBM18747 Lockout/25_Defeasance/28_0%/7 657,942
09-0001777 Lockout/25_Defeasance/91_0%/4 724,826
34830 Lockout/24_Defeasance/94_0%/2 732,902
40229 Lockout/37_Defeasance/79_0%/4 846,710
41269 Lockout/25_>YM or 1%/91_0%/4 720,923
38864 Lockout/29_Defeasance/53_0%/2 777,522
09-0001752 Lockout/25_Defeasance/91_0%/4 496,806 Yes
39856 Lockout/25_Defeasance/93_0%/2 692,683
09-0001751 Lockout/26_Defeasance/90_0%/4 648,545
09-0001776 Lockout/24_Defeasance/92_0%/4 667,447
09-0001776-A
09-0001776-B
09-0001739 Lockout/26_YM or Defeasance/90_0%/4 653,263
41027 Lockout/24_Defeasance/154_0%/2 735,390
03-12924 Lockout/24_Defeasance/92_0%/4 636,184
40015 Lockout/26_Defeasance/92_0%/2 502,893
DBM18856 Lockout/24_Defeasance/56_0%/4 461,781 Yes
09-0001778 Lockout/25_Defeasance/91_0%/4 434,896
09-0001732 Lockout/26_Defeasance/90_0%/4 462,190
09-0001769 Lockout/25_Defeasance/91_0%/4 434,223
09-0001779 Lockout/24_Defeasance/92_0%/4 411,833
32994 Lockout/47_Defeasance/71_0%/2 563,503
09-0001761 Lockout/26_Defeasance/90_0%/4 401,132
41499 Lockout/24_>YM or 1%/94_0%/2 384,876
41157 Lockout/24_Defeasance/94_0%/2 387,257
DBM17820 Lockout/24_Defeasance/92_0%/4 357,535
38423 Lockout/26_Defeasance/92_0%/2 345,569
DBM18886 Lockout/24_Defeasance/92_0%/4 339,545
09-0001771 Lockout/25_Defeasance/151_0%/4 476,040 Yes
02-12233 Lockout/31_Defeasance/85_0%/4 386,581
40720 Lockout/24_Defeasance/94_0%/2 283,616
DBM18864 Yes Lockout /24_Defeasance/272_0%/1 321,535
40740 Lockout/25_Defeasance/93_0%/2 262,212
02-11630 Lockout/33_Defeasance/83_0%/4 274,863
41029 Lockout/26_Defeasance/92_0%/2 243,463
09-0001753 Lockout/26_Defeasance/90_0%/4 245,692
09-0001728 Lockout/27_Defeasance/89_0%/4 219,895
41098 Lockout/26_Defeasance/92_0%/2 216,106
40651 Lockout/25_Defeasance/93_0%/2 218,031
40731 Lockout/26_Defeasance/90_0%/4 211,451
09-0001756 Lockout/26_Defeasance/90_0%/4 196,029 Yes
41468 Lockout/24_Defeasance/92_0%/4 190,314
38421 Lockout/26_Defeasance/92_0%/2 176,173
40524 Lockout/24_>YM or 1%/92_0%/4 180,522
41574 Lockout/24_Defeasance/116_0%/4 158,308
09-0001740 Lockout/25_Defeasance/91_0%/4 176,982
40585 Lockout/26_Defeasance/93_0%/1 155,690
39794 Lockout/25_Defeasance/92_0%/3 147,541
DBM18808 Lockout/24_Defeasance/32_0%/4 125,195
09-0001781 Lockout/24_Defeasance/92_0%/4 132,331
03-13681 Lockout/24_Defeasance/92_0%/4 134,203
39942 Lockout/27_Defeasance/91_0%/2 111,194
Additional
Servicing Environmental Letter of Servicing
Loan Number Fee Loan Insurance Loan Credit Loan Leasehold Fee Rate(%) Loan Seller
-----------------------------------------------------------------------------------------------------------------
1 4.62500 XXXX
00000 Yes 6.52000 GMACCM
09-1001093 4.41000 Archon Financial
09-1001093-A Archon Financial
09-1001093-B Archon Financial
09-1001093-C Archon Financial
09-1001093-D Archon Financial
09-1001093-E Archon Financial
09-1001093-F Archon Financial
09-1001093-G Archon Financial
09-1001093-H Archon Financial
09-1001093-I Archon Financial
09-1001093-J Xxxxxx Xxxxxxxxx
XX00000 Yes 4.27375 GACC
09-0001735 Yes 5.65000 Archon Financial
40723 5.53000 GMACCM
DBM18752 4.57000 GACC
DBM18727 5.20000 GACC
DBM18807 4.72600 GACC
DBM18404 5.43000 GACC
02-11534 5.69000 MSMC
02-12748 Yes 5.69000 MSMC
03-13726 5.60000 XXXX
00000 5.24000 GMACCM
DBM18861 Yes 4.97000 GACC
DBM18317 6.10000 GACC
DBM18317-1 GACC
DBM18317-2 GACC
DBM18317-3 GACC
DBM18317-4 GACC
DBM18317-5 GACC
02-12749 5.69000 MSMC
02-12750 5.69000 XXXX
00000 5.94000 GMACCM
DBM18816 4.89000 GACC
DBM18816-1 GACC
DBM18816-2 GACC
DBM18816-3 GACC
DBM18816-4 GACC
DBM18982 5.40000 GACC
6.60000 MSMC
03-13147 MSMC
03-13149 MSMC
03-13146 MSMC
03-13148 MSMC
03-13803 6.01000 XXXX
00000 4.50000 GMACCM
03-14200 5.11000 XXXX
00000 Yes 5.70000 GMACCM
09-0001736 5.49000 Archon Financial
09-0001734 5.53000 Archon Financial
09-0001749 5.45000 Archon Financial
40644 4.85000 GMACCM
03-13195 Yes 5.00000 MSMC
40641 5.69000 GMACCM
09-0001755 Yes Yes 5.15000 Archon Financial
02-12777 5.21000 MSMC
02-12103 5.88000 XXXX
00000 5.30000 GMACCM
40793 5.22000 GMACCM
09-0001724 Yes Yes 5.19000 Archon Financial
DBM18863 4.91000 GACC
40734 5.69000 GMACCM
DBM18747 4.33000 GACC
09-0001777 5.20000 Archon Financial
34830 5.72000 GMACCM
40229 6.50000 GMACCM
41269 5.79000 GMACCM
38864 Yes 5.80000 GMACCM
09-0001752 4.90000 Archon Financial
39856 Yes 5.65000 GMACCM
09-0001751 5.33000 Archon Financial
09-0001776 5.78000 Archon Financial
09-0001776-A Archon Financial
09-0001776-B Archon Financial
09-0001739 Yes 5.68000 Archon Financial
41027 5.72000 GMACCM
03-12924 Yes 6.20000 XXXX
00000 5.60000 GMACCM
DBM18856 5.47000 GACC
09-0001778 5.20000 Archon Financial
09-0001732 5.75000 Archon Financial
09-0001769 Yes 5.35000 Archon Financial
09-0001779 Yes Yes 5.20000 Archon Financial
32994 7.87500 GMACCM
09-0001761 Yes 5.45000 Archon Financial
41499 5.34000 GMACCM
41157 5.80000 GMACCM
DBM17820 5.76000 GACC
38423 5.45000 GMACCM
DBM18886 5.47000 GACC
09-0001771 Yes 5.05000 Archon Financial
02-12233 6.00000 XXXX
00000 5.75000 GMACCM
DBM18864 6.53000 GACC
40740 5.38000 GMACCM
02-11630 6.05000 XXXX
00000 5.30000 GMACCM
09-0001753 5.44000 Archon Financial
09-0001728 Yes 5.10000 Archon Financial
41098 5.35000 GMACCM
40651 5.50000 GMACCM
40731 5.51000 GMACCM
09-0001756 5.65000 Archon Financial
41468 5.81000 GMACCM
38421 5.45000 GMACCM
40524 5.85000 GMACCM
41574 4.85000 GMACCM
09-0001740 5.85000 Archon Financial
40585 5.60000 GMACCM
39794 5.78000 GMACCM
DBM18808 4.75000 GACC
09-0001781 5.70000 Archon Financial
03-13681 6.07000 MSMC
39942 5.68000 GMACCM
I-1
Schedule II-1
ENVIRONMENTAL POLICY MORTGAGE LOANS
Loan Number Name Insurer
---------- ---------------------------------- ---------------------------------
03-13146 Park Portfolio-Shepherd Park Plaza American International Group, Inc
03-13195 Marina View Towers American International Group, Inc
03-12924 Charleston Plaza American International Group, Inc
38864 Victory - Cedar Hills American International Group, Inc
Schedule III-1
STRIP CALCULATION SCHEDULE
Distribution Date
------------------
August 10, 2003 0.00000%
September 10, 2003 5.43207%
October 10, 2003 5.26632%
November 10, 2003 5.43206%
December 10, 2003 5.26633%
January 10, 2004 5.43205%
February 10, 2004 5.26634%
March 10, 2004 5.26649%
April 10, 2004 5.43202%
May 10, 2004 5.26634%
June 10, 2004 5.43201%
July 10, 2004 5.26611%
August 10, 2004 5.43220%
September 10, 2004 5.43223%
October 10, 2004 5.26618%
November 10, 2004 5.43228%
December 10, 2004 5.26625%
January 10, 2005 5.26627%
February 10, 2005 5.26631%
March 10, 2005 5.26686%
April 10, 2005 5.43236%
May 10, 2005 5.26638%
June 10, 2005 5.43240%
July 10, 2005 5.26643%
August 10, 2005 5.43625%
September 10, 2005 5.43627%
October 10, 2005 5.26649%
November 10, 2005 5.43629%
December 10, 2005 5.26652%
January 10, 2006 5.26652%
February 10, 2006 5.26654%
March 10, 2006 5.26714%
April 10, 2006 5.43630%
May 10, 2006 5.26656%
June 10, 2006 5.43631%
July 10, 2006 5.26659%
August 10, 2006 5.43631%
September 10, 2006 5.44000%
October 10, 2006 5.26356%
November 10, 2006 5.44000%
December 10, 2006 5.26356%
January 10, 2007 5.26356%
February 10, 2007 5.26357%
March 10, 2007 5.26421%
April 10, 2007 5.43999%
May 10, 2007 5.26355%
June 10, 2007 5.43999%
July 10, 2007 5.26355%
August 10, 2007 5.43999%
Distribution Date
------------------
September 10, 2007 5.43999%
October 10, 2007 5.26355%
November 10, 2007 5.43999%
December 10, 2007 5.26354%
January 10, 2008 5.43998%
February 10, 2008 5.26354%
March 10, 2008 5.26377%
April 10, 2008 5.47607%
May 10, 2008 5.29842%
June 10, 2008 5.53033%
July 10, 2008 5.37161%
August 10, 2008 5.59519%
September 10, 2008 5.65358%
October 10, 2008 5.47027%
November 10, 2008 5.65362%
December 10, 2008 5.47030%
January 10, 2009 5.47032%
February 10, 2009 5.47034%
March 10, 2009 5.47117%
April 10, 2009 5.65371%
May 10, 2009 5.47038%
June 10, 2009 5.65374%
July 10, 2009 5.47042%
August 10, 2009 5.65378%
September 10, 2009 5.65380%
October 10, 2009 5.47048%
November 10, 2009 5.65384%
December 10, 2009 5.47051%
January 10, 2010 5.47052%
February 10, 2010 5.47054%
March 10, 2010 5.47143%
April 10, 2010 5.65213%
May 10, 2010 5.46885%
June 10, 2010 5.64416%
July 10, 2010 5.46056%
August 10, 2010 5.64359%
Schedule VI-1
BROKER STRIP SCHEDULE
Cut-Off Date
Loan Number Property Name Balance Sub-Servicing Fee
----------- --------------------------------------- ------------- ------------------
09-0001735 Geneva Commons 47,861,181
09-0001734 The Vineyards at Castlewoods 16,750,072
09-0001752 Turnberry Plaza 10,000,000
DBM18856 Ocotillo Plaza 6,800,000
09-0001771 Xxxxxxxx Centre 4,982,073
09-0001756 Hillview Plaza - Shops 2,824,407
GA18896 Boulevard Mall 48,667,436
09-0001755 Rosedale Marketplace 13,575,000
09-0001724 Timberlake Village Apartments 11,600,000
09-0001769 The Willows at Lone Mountain Apartments 6,473,668
09-0001779 Greenbriar Crossing Shopping Center 6,250,000
09-0001728 Millburn Office 3,363,966
Schedule V-1
SPECIFIED EARNOUT RESERVE LOANS
Loan Number Name
----------- -------------------
09-0001735 Geneva Commons
DBM18807 Xxxxxxxx Xxxxx
00-00000 Xxxxxxxx Xxxxxxx
00000 Xxxxxxx Xxxxxxxxxxx
09-0001771 Xxxxxxxx Xxxxxx
00000 Xxxxxx Xxxx Xxxx
Schedule VI-1
ADDITIONAL SERVICING FEE SCHEDULE
Additional Additional
Cut-Off Date Servicing Servicing
Loan Number Property Name Balance ($) Fee Loan Fee Loan Seller
---------- -------------------------------------------- ------------------ ------------ ------------- ------------
09-0001755 Rosedale Marketplace 13,575,000 Yes 8 bps GSMC
09-0001724 Timberlake Village Apartments 11,600,000 Yes 5 bps GSMC
09-0001769 The Willows at Lone Mountain Apartments 6,473,668 Yes 6 bps GSMC
09-0001779 Greenbriar Crossing Shopping Center 6,250,000 Yes 5 bps GSMC
09-0001728 Millburn Office 3,363,966 Yes 5 bps GSMC
DBM18856 Ocotillo Plaza 6,800,000 Yes 5 bps XXXX
XX00000 Xxxxxxxxx Xxxx 48,667,436 Yes 2 bps GACC
