EXHIBIT 4.1
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, N.A.
Trustee and Securities Intermediary
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POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2000
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$773,760,240
Mortgage Pass-Through Certificates
Series 2000-C2
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS................................................................................5
SECTION 1.01 Defined Terms.....................................................................5
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool and the Mortgage
Certificate......................................................................59
ARTICLE II CONVEYANCE OF MORTGAGE ASSETS; ORIGINAL ISSUANCE OF CERTIFICATES..........................61
SECTION 2.01 Establishment of Trust; Conveyance of Mortgage Loans and Mortgage
Certificate......................................................................61
SECTION 2.02 Acceptance by Trustee............................................................64
SECTION 2.03 Mortgage Loan Sellers' Repurchase of Mortgage Loans for Defects in
Mortgage Files and Breaches of Representations and Warranties....................66
SECTION 2.04 Issuance of Class R-I Certificates; Creation of REMIC I Regular Interests........69
SECTION 2.05 Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by the
Trustee..........................................................................69
SECTION 2.06 Issuance of Class R-II Certificates; Creation of REMIC II Regular Interest.......70
SECTION 2.07 Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by
Trustee..........................................................................70
SECTION 2.08 Issuance of REMIC III Certificates...............................................70
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND............................................70
SECTION 3.01 Servicing and Administration of the Mortgage Loans...............................70
SECTION 3.02 Collection of Mortgage Loan Payments.............................................72
SECTION 3.03 Collection of Taxes, Assessments and Similar Items; Servicing Accounts
and Reserve Accounts.............................................................72
SECTION 3.04 Certificate Account, Distribution Account and Interest Reserve Account...........74
SECTION 3.05 Permitted Withdrawals From the Certificate Account, the Distribution
Account, the Interest Reserve Account and the Excess Liquidation Proceeds
Reserve Account..................................................................78
SECTION 3.06 Investment of Funds in the Certificate Account, the Distribution Account,
the Excess Liquidation Proceeds Reserve Account, the Interest Reserve Account
and the REO Account..............................................................82
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions and Fidelity
Coverage.........................................................................84
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SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements; Subordinate
Financing; Defeasance............................................................87
SECTION 3.09 Realization Upon Defaulted Mortgage Loans........................................90
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files..................................93
SECTION 3.11 Servicing Compensation; Nonrecoverable Servicing Advances........................94
SECTION 3.12 Inspections; Collection of Financial Statements..................................98
SECTION 3.13 Annual Statement as to Compliance................................................99
SECTION 3.14 Reports by Independent Public Accountants........................................99
SECTION 3.15 Access to Certain Information...................................................100
SECTION 3.16 Title to REO Property; REO Account..............................................100
SECTION 3.17 Management of REO Property; Independent Contractors.............................101
SECTION 3.18 Sale of Defaulted Mortgage Loans and REO Properties.............................104
SECTION 3.19 Additional Obligations of the Master Servicer and the Special Servicer..........107
SECTION 3.20 Modifications, Waivers, Amendments and Consents.................................110
SECTION 3.21 Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping..................................................................113
SECTION 3.22 Sub-Servicing Agreements........................................................114
SECTION 3.23 Designation of Special Servicer by the Majority Certificateholder of the
Controlling Class...............................................................116
SECTION 3.24 Lock-Box Accounts and Servicing Accounts........................................117
SECTION 3.25 Representations and Warranties of the Master Servicer and the Special
Servicer........................................................................117
SECTION 3.26 Establishment and Maintenance of Mortgage Certificate Securities Account;
Enforcement of Mortgage Certificate; Amendment..................................118
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS.......................................119
SECTION 4.01 Distributions...................................................................119
SECTION 4.02 Statements to Certificateholders; Certain Reports by the Master Servicer
and the Special Servicer........................................................130
SECTION 4.03 Delinquency Advances............................................................138
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund Expenses................140
ARTICLE V THE CERTIFICATES.........................................................................141
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SECTION 5.01 The Certificates................................................................141
SECTION 5.02 Registration of Transfer and Exchange of Certificates...........................141
SECTION 5.03 Book-Entry Certificates.........................................................146
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates...............................148
SECTION 5.05 Persons Deemed Owners...........................................................148
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER..............................148
SECTION 6.01 Liability of the Depositor, the Master Servicer and the Special Servicer........148
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....................................148
SECTION 6.03 Limitation on Liability of the Depositor, the Master Servicer, the
Special Servicer and Others.....................................................149
SECTION 6.04 Depositor, Master Servicer and Special Servicer Not to Resign...................150
SECTION 6.05 Rights of the Depositor in Respect of the Master Servicer and the Special
Servicer........................................................................151
ARTICLE VII DEFAULT..................................................................................151
SECTION 7.01 Events of Default...............................................................151
SECTION 7.02 Trustee to Act; Appointment of Successor........................................153
SECTION 7.03 Notification to Certificateholders..............................................154
SECTION 7.04 Waiver of Events of Default.....................................................155
ARTICLE VIII CONCERNING THE TRUSTEE...................................................................155
SECTION 8.01 Duties of Trustee...............................................................155
SECTION 8.02 Certain Matters Affecting the Trustee...........................................156
SECTION 8.03 Trustee not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans or Mortgage Certificate..........................................158
SECTION 8.04 Trustee May Own Certificates....................................................158
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of Trustee........................158
SECTION 8.06 Eligibility Requirements for Trustee............................................159
SECTION 8.07 Resignation and Removal of the Trustee..........................................159
SECTION 8.08 Successor Trustee...............................................................160
SECTION 8.09 Merger or Consolidation of Trustee..............................................161
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee...................................161
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SECTION 8.11 Appointment of Custodians.......................................................162
SECTION 8.12 Access to Certain Information...................................................163
SECTION 8.13 Representations and Warranties of the Trustee...................................164
SECTION 8.14 Filings with the Securities and Exchange Commission.............................165
SECTION 8.15 Securities Intermediary.........................................................165
ARTICLE IX TERMINATION..............................................................................166
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans................166
SECTION 9.02 Additional Termination Requirements.............................................168
ARTICLE X ADDITIONAL REMIC PROVISIONS..............................................................169
SECTION 10.01 REMIC Administration............................................................169
SECTION 10.02 Depositor, Master Servicer, Special Servicer, Trustee to Cooperate..............172
SECTION 10.03 Grantor Trust Administration....................................................173
ARTICLE XI MISCELLANEOUS PROVISIONS.................................................................174
SECTION 11.01 Amendment.......................................................................174
SECTION 11.02 Recordation of Agreement; Counterparts..........................................176
SECTION 11.03 Limitation on Rights of Certificateholders......................................177
SECTION 11.04 GOVERNING LAW...................................................................177
SECTION 11.05 Notices.........................................................................178
SECTION 11.06 Severability of Provisions......................................................178
SECTION 11.07 Grant of a Security Interest....................................................178
SECTION 11.08 Successors and Assigns; Beneficiaries...........................................179
SECTION 11.09 Article and Section Headings....................................................179
SECTION 11.10 Notices to the Rating Agencies..................................................179
EXHIBITS
Exhibit A-1 Form of Class X Certificate...................................................A-1-1
Exhibit A-2 Form of Class A-1 Certificate.................................................A-2-1
Exhibit A-3 Form of Class A-2 Certificate.................................................A-3-1
Exhibit A-4 Form of Class B Certificate...................................................A-4-1
Exhibit A-5 Form of Class C Certificate...................................................A-5-1
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Exhibit A-6 Form of Class D Certificate...................................................A-6-1
Exhibit A-7 Form of Class E Certificate...................................................A-7-1
Exhibit A-8 Form of Class F Certificate...................................................A-8-1
Exhibit A-9 Form of Class G Certificate...................................................A-9-1
Exhibit A-10 Form of Class H Certificate..................................................A-10-1
Exhibit A-11 Form of Class J Certificate..................................................A-11-1
Exhibit A-12 Form of Class K Certificate..................................................A-12-1
Exhibit A-13 Form of Class L Certificate..................................................A-13-1
Exhibit A-14 Form of Class M Certificate..................................................A-14-1
Exhibit A-15 Form of Class N Certificate..................................................A-15-1
Exhibit A-16 Form of Class O Certificate..................................................A-16-1
Exhibit A-17 Form of Class R-I Certificate................................................A-16-1
Exhibit A-18 Form of Class R-II Certificate...............................................A-17-1
Exhibit A-19 Form of Class R-III Certificate..............................................A-18-1
Exhibit B-1 Form of Transferor Certificate................................................B-1-1
Exhibit B-2 Form of Transferee Certificate................................................B-2-1
Exhibit C-1 Form of Transfer Affidavit and Agreement......................................C-1-1
Exhibit C-2 Form of Transferor Certificate................................................C-2-1
Exhibit D Form of Request for Release.....................................................D-1
Exhibit E Form of UCC-1 Financing Statement...............................................E-1
Exhibit F Methodology to Normalize Net Operating Income and Debt Service Coverage ........F-1
Exhibit G Form of Distribution Date Statement.............................................G-1
Exhibit H Form of Master Servicer Report..................................................H-1
Exhibit I Certain Reports.................................................................I-1
Exhibit J Form of CMSA Periodic Loan File.................................................J-1
Exhibit K Form of Investor Certification..................................................K-1
Exhibit L Schedule of Designated Sub-Servicers............................................L-1
SCHEDULES
Schedule I Mortgage Asset Schedule....................................................Sch. I-1
Schedule II Closing Mortgage File Review Certification................................Sch. II-1
Schedule III Post-Closing Mortgage File Review Certification..........................Sch. III-1
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Schedule IV Environmental Policy Mortgage Loans.......................................Sch. IV-1
Schedule V Specified Debt Service Reserve Loans.......................................Sch. V-1
Schedule VI Specified Letter of Credit Loans..........................................Sch. VI-1
Schedule VII Specified Earnout Reserve Loans..........................................Sch. VII-1
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This Pooling and Servicing Agreement (this "Agreement"), is
dated and effective as of August 1, 2000, 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, N.A., as Trustee and Securities Intermediary.
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 Assets. The aggregate of the
initial Cut-off Date Principal Balances of the Mortgage Assets is approximately
$773,760,240.
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 the
Mortgage Certificate 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 Asset,
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 Asset 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 Asset. 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
Asset. 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 Asset that has, as of the
Closing Date, the longest remaining amortization schedule, irrespective of its
scheduled maturity. None of the REMIC II Regular Interests will be certificated.
REMIC II INITIAL UNCERTIFICATED
DESIGNATION REMITTANCE RATE PRINCIPAL BALANCE
---------------------- --------------- ----------------------
LA-1.................. Variable (*) $123,801,000
LA-2.................. Variable (*) $485,535,000
LB.................... Variable (*) $30,950000
LC.................... Variable (*) $28,049,000
LD.................... Variable (*) $10,639,000
LE.................... Variable (*) $19,344,000
LF.................... Variable (*) $9,672,000
LG.................... Variable (*) $25,147,000
LH.................... Variable (*) $5,804,000
LJ.................... Variable (*) $5,803,000
LK.................... Variable (*) $8,705,000
LL.................... Variable (*) $3,868,000
LM.................... Variable (*) $4,836,000
LN.................... Variable (*) $4,836,000
LO.................... Variable (*) $6,771,240
* Calculated in accordance with the definition of "REMIC II Remittance
Rate."
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC III". The Class R-III Certificates will represent the
sole class of "residual interests" in REMIC III for purposes of the REMIC
Provisions under federal income tax law. The following table irrevocably sets
forth the designation, the Pass-Through Rate and initial Class Principal Balance
for each of the Classes of REMIC III Regular Certificates. Determined solely for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each Class of REMIC III Regular Certificates
shall be the first Distribution Date that is at least two years after the end of
the remaining amortization schedule of the Mortgage Asset that has, as of the
Closing Date, the longest remaining amortization schedule, irrespective of its
scheduled maturity.
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CERTIFICATE INITIAL CLASS
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE
-------------------- ----------------- -----------------
Class X N/A(1) N/A(2)
Class A-1 7.273% $123,801,000
Class A-2 7.455%(3) $485,535,000
Class B 7.594%(3) $30,950,000
Class C 7.740%(3) $28,049,000
Class D 7.836%(3) $10,639,000
Class E 8.488%(4) $19,344,000
Class F 8.488%(4) $9,672,000
Class G 7.000% $25,147,000
Class H 7.000% $5,804,000
Class J 7.000% $5,803,000
Class K 7.000% $8,705,000
Class L 7.000% $3,868,000
Class M 7.000% $4,836,000
Class N 7.000% $4,836,000
Class O 7.000% $6,771,240
(1) The Pass-Through Rate for the Class X Certificates as described herein.
(2) The Class X Certificates will have an original Notional Amount of
$773,760,240. The Class X Certificates will not have a Certificate
Principal Balance and will not be entitled to any distribution of
certificate principal.
(3) Lesser of the indicated Fixed Rate or the Weighted Average Net Mortgage
Rate.
(4) Initial Pass-Through Rate. The Pass-Through Rate will be the Weighted
Average Net Mortgage Rate.
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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.
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
Securities Intermediary agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to any Class of
REMIC III Regular Certificates (other than the Class X Certificates) for any
Distribution Date, one month's interest (calculated on the basis of a 360-day
year consisting of twelve 30-day months) at the Pass-Through Rate applicable to
such Class of Certificates for such Distribution Date, accrued on the Class
Principal Balance of such Class of Certificates outstanding immediately prior to
such Distribution Date. With respect to the Class X Certificates, the sum of the
Accrued Certificate Interest for each Class X Component. With respect to any
Class X Component 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
applicable Component Rate for such Component for such Distribution Date accrued
on the Component Notional Amount of such Class X Component outstanding
immediately prior to such Distribution Date. The Accrued Certificate Interest in
respect of any Class of REMIC III Regular Certificates for any Distribution Date
shall be deemed to have accrued during the applicable Interest Accrual Period.
"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-Servicing Agreement (which may be comprised of a designated sub-servicing
fee and an additional sub-servicing fee) that accrues at a rate of 0.08% per
annum for the Mortgage Loans identified on the Mortgage Asset Schedule as loan
numbers 09-0001337 and 09-0001344, and 0.04% per annum for the Mortgage Loans
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identified on the Mortgage Asset Schedule as loan numbers 09-0001340 and
09-0001341, as specified in such agreement.
"Additional Servicing Fee Mortgage Loans": The Mortgage Loans
secured by (and any successor REO Mortgage Loans relating to) those Mortgaged
Properties identified on the Mortgage Asset Schedule as loan numbers 09-0001337,
09-0001344, 09-0001340 and 09-0001341.
"Additional Trust Fund Expense": Any unanticipated expense
within the meaning of Treasury Regulation Section 1.860G-1(b)(3)(iii)
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the REMIC III Regular
Certificateholders' receiving less than the full amount of principal and/or
interest to which they are entitled on any Distribution Date.
"Adjustable Rate Mortgage Loan": A Mortgage Loan as to which
the related Mortgage Note provides, as of the Closing Date, for periodic
adjustments to the Mortgage Rate thereon based on changes in the related Index.
"Advance": Any Delinquency Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer, the Special Servicer or
the Trustee, as the case may be, all in accordance with Section 3.11(f) or
Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": As defined in Section 10.03(e).
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any ARD Loan,
the date upon which such ARD Loan starts to accrue interest at its Revised Rate.
"Applicable State Law": For purposes of Article X, the
Applicable State Law shall be (a) the laws of the State and City of New York,
(b) the laws of the states in which the Corporate Trust Office of the Trustee
and the Primary Servicing Offices of the Master Servicer and the Special
Servicer are located, (c) other state or local law as to which the Trustee as
the REMIC administrator has actual knowledge of applicability and (d) such other
state or local law whose applicability shall have been brought to the attention
of the Trustee as REMIC
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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 $1,000,000; or (ii) a limited appraisal and a summary
report of the "market value" of the Mortgaged Property conducted by a Qualified
Appraiser in the case of Mortgage Loans and REO Loans with a Stated Principal
Balance as of the date of such appraisal of $1,000,000 or less.
"Appraisal Reduction Amount": With respect to any Required
Appraisal Loan, an amount (as calculated on the Determination Date immediately
succeeding the date on which the most recent relevant Appraisal was obtained by
the Master Servicer or the Special Servicer, as the case may be, pursuant to
this Agreement) equal to the excess, if any, of (a) the sum of (i) the Stated
Principal Balance of such Required Appraisal Loan, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer or the Trustee, all
accrued and unpaid interest on such Required Appraisal Loan through the most
recent Due Date prior to such Determination Date at a per annum rate equal to
the related Mortgage Rate, (iii) all related unreimbursed Advances made by or on
behalf of the Master Servicer, the Special Servicer or the Trustee in respect of
such Required Appraisal Loan, together with all unpaid Advance Interest accrued
on such Advances, and (iv) all currently due but unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents in respect of
the related Mortgaged Property or REO Property, net of any Escrow Payments or
other reserves held by the Master Servicer or the Special Servicer with respect
to any such item, over (b) 90% of an amount equal to (i) the Appraised Value of
the related Mortgaged Property or REO Property, as applicable, as determined by
such Appraisal referred to in the parenthetical above, net of (ii) the amount of
any liens on such property (not accounted for in clause (a)(iv) of this
definition or taken into account in determining such Appraised Value) that are
prior to the lien of the Required Appraisal Loan. Notwithstanding the foregoing,
if an Appraisal is not obtained within 120 days following the earliest of the
dates described in Section 3.19(d) (which, in the case of Section 3.19(d)(ii),
shall be the date of the occurrence of an uncured delinquency in Monthly
Payments), then until such Appraisal is obtained the Appraisal Reduction Amount
will equal 25% of the Stated Principal Balance of the related Required Appraisal
Loan; provided that, upon receipt of an Appraisal, however, the Appraisal
Reduction Amount for such Required Appraisal Loan will be recalculated in
accordance with this definition without regard to this sentence.
"Appraised Value": As of any date of determination, the
appraised value of a Mortgaged Property based upon the most recent Appraisal
obtained pursuant to this Agreement.
"ARD Loan": Any Mortgage Loan that is designated as such in
the Mortgage Asset 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
7
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 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 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 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 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 3.19, (iv) in the case of the
Final Distribution Date, the aggregate of any Liquidation Proceeds paid by the
Master Servicer or the Depositor in connection with a purchase of all the
Mortgage Loans and any REO Properties 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(c), (vi) with respect to any Late Due Date
Mortgage Loan, the Monthly Payment (other than any Balloon Payment) due in the
same calendar month as such Distribution Date and received on or before its Due
Date, and (vii) the Monthly Payment on the Mortgage Certificate due in the same
month as such Distribution Date and received on or before its Due Date or for
which the Trustee has made an advance pursuant to Section 3.04(b), 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
8
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) - (xviii), inclusive, of Section 3.05(a), (iii) any
amounts payable or reimbursable to any Person from the Distribution Account
pursuant to clauses (ii) - (viii), inclusive, of Section 3.05(b), (iv)
Prepayment Premiums and Excess Interest, (v) any amounts deposited in the
Certificate Account or the Distribution Account, as the case may be, in error,
and (vi) with respect to the Distribution Date occurring in (A) January of each
calendar year that is not a leap year and (B) February of each calendar year,
the Withheld Amounts with respect to the Interest Reserve Loans deposited in the
Interest Reserve Account by the Trustee with respect to such Distribution Date
in accordance with Section 3.04(c). 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 that by its
original terms or by virtue of any modification entered into as of the Closing
Date provides for an amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan
as of any date of determination, the Monthly Payment payable on the Maturity
Date of such Mortgage Loan.
"Balloon Payment Interest Excess": With respect to any Balloon
Mortgage Loan (other than a Late Due Date Mortgage Loan) as to which the Stated
Maturity Date occurs in the same Collection Period as the prior Due Date for
such 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
Mortgage Loan from such prior Due Date to, but not including, the date the
related Balloon Payment is paid, to the extent such interest is actually paid by
the related Mortgagor in connection with the payment of the related Balloon
Payment on or before such Stated Maturity Date.
"Balloon Payment Interest Shortfall": With respect to any
Balloon Mortgage Loan (other than a Late Due Date Mortgage Loan) as to which the
Stated Maturity Date occurs after the Determination Date in any calendar month,
and as to which the related Balloon Payment was made during the Collection
Period in which such Stated Maturity Date occurs, the amount of interest that
would have accrued on such 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.
9
"Bankruptcy Code": The federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
"Bladensburg REMIC": The single-asset REMIC established with
respect to the mortgage loan identified on the Mortgage Asset Schedule as loan
number 00-0000000, which REMIC was created by a REMIC Declaration made by
Salomon Brothers Realty Corp. on May 23, 2000.
"Bladensburg REMIC Asset": The REMIC regular interest in the
Bladensburg REMIC, which regular interest was transferred and assigned by
Salomon Brothers Realty Corp. to the Depositor pursuant to the Mortgage Loan
Purchase Agreement between the Depositor and Salomon Brothers Realty Corp.
"Bladensburg REMIC Residual Interest": The REMIC residual
interest in the Bladensburg REMIC, which residual interest was transferred and
assigned by Salomon Brothers Realty Corp. to the Depositor pursuant to the
Mortgage Loan Purchase Agreement between the Depositor and Salomon Brothers
Realty Corp.
"Bloomberg": As defined in Section 4.02(a).
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
"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 0.05% per annum 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 Asset Schedule is net of such
Broker Strip Amount.
"Broker Strip Loans": The Mortgage Loans identified as loan
numbers 09-0001336 and 09-0001362 on the Mortgage Asset Schedule.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, and the cities in which
the Primary Servicing Offices of the Master Servicer and the Special Servicer
and the city in which the Corporate Trust Office of the Trustee is located, are
authorized or obligated by law or executive order to remain closed.
"Cash Collateral Account": With respect to any Mortgage Loan
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
10
thereon. 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 2000-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, for the holders of
certain other interests in mortgage loans serviced or sold by the Master
Servicer and for the Master Servicer, into which the amounts set forth in
Section 3.04(a) shall be deposited directly. Any such account or accounts shall
be an Eligible Account.
"Certificate Factor": With respect to any Class of REMIC III
Regular Certificates, as of any date of determination, a fraction, expressed as
a decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or the Class Notional Amount, as the case may be, and
the denominator of which is the related Initial Class Principal Balance or the
Initial Class Notional Amount, as the case may be.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Master Servicer, the
Special Servicer, the Trustee, the Depositor or any Affiliate of either shall be
deemed not to be outstanding, and the Voting Rights to which it is entitled
shall not be taken into account in determining whether the requisite percentage
of Voting Rights necessary to effect any such consent, approval or waiver has
been obtained, except as otherwise provided in Sections 7.04 and 11.01. The
Trustee shall be entitled to request and rely upon a certificate of the Master
Servicer, the Special Servicer or the Depositor in determining whether a
Certificate is registered in the name of an Affiliate of such Person. All
references herein to "Holders" or "Certificateholders" shall reflect the rights
of Certificate Owners as they may indirectly exercise such rights through the
Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name a
Certificate is registered in the Certificate Register as of the related Record
Date.
"Certificate Notional Amount": With respect to any Class X
Certificate, as of any date of determination, the then notional principal amount
on which such Certificate accrues
11
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
Certificates.
"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.
"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-2 attached hereto, and evidencing a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-3 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-4 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-5 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-6 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-7 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-8 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
12
"Class G Certificate": Any one of the Certificates with a
"Class G" 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 H Certificate": Any one of the Certificates with a
"Class H" 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 J Certificate": Any one of the Certificates with a
"Class J" 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 K Certificate": Any one of the Certificates with a
"Class K" 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 L Certificate": Any one of the Certificates with a
"Class L" 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 M Certificate": Any one of the Certificates with a
"Class M" 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 N Certificate": Any one of the Certificates with a
"Class N" 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 O Certificate": Any one of the Certificates with a
"Class O" 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 LA-1 Component": A non-certificated beneficial
ownership interest in REMIC III, designated as a "regular interest" therein and
entitled to distributions of interest, subject to the terms and conditions
hereof, in an amount based upon the Class LA-1 Component Rate and the
Uncertificated Principal Balance of REMIC II Regular Interest LA-1 outstanding
from time to time.
"Class LA-2 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
13
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 Uncertificated Principal
Balance of REMIC II Regular Interest LD outstanding from time to time.
"Class LE Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LE Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LE outstanding from time to time.
"Class LF Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LF Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LF outstanding from time to time.
"Class LG Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LG Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LG outstanding from time to time.
"Class LH Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LH Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LH outstanding from time to time.
"Class LJ Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LJ Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LJ outstanding from time to time.
"Class LK Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LK Component
14
Rate and the Uncertificated Principal Balance of REMIC II Regular Interest LK
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 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 LA-1 Component Rate": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
A-1 Pass-Through Rate.
"Class LA-2 Component Rate": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
A-2 Pass-Through Rate.
"Class LB Component Rate": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
B Pass-Through Rate.
"Class LC Component Rate": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
C Pass-Through Rate.
"Class LD Component Rate": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
D Pass-Through Rate for such Distribution Date.
"Class LE Component Rate": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
E Pass-Through Rate for such Distribution Date.
15
"Class LF Component Rate": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
F Pass-Through Rate for such Distribution Date.
"Class LG Component Rate": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
G Pass-Through Rate for such Distribution Date.
"Class LH Component Rate": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
H Pass-Through Rate for such Distribution Date.
"Class LJ Component Rate": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
J Pass-Through Rate for such Distribution Date.
"Class LK Component Rate": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
K Pass-Through Rate for such Distribution Date.
"Class LL Component Rate": 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": 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": The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date exceeds the Class
N Pass-Through Rate for such Distribution Date.
"Class LO Component Rate": 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 Notional Amount": The aggregate notional principal
amount on which the Class X Certificates accrue interest from time to time
which, as of any date of determination, is equal to the then aggregate of the
Uncertificated Principal Balances of REMIC II Regular Interests LA-1, LA-2, LB,
LC, LD, LE, LF, LG, LH, LJ, LK, LL, LM, LN and LO.
"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).
16
"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-17 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-18 attached hereto, and evidencing the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
"Class R-II Distribution Amount": With respect to any
Distribution Date, any amounts available to be paid to the holders of the Class
R-II Certificates on such date after all REMIC II Regular Interests have been
paid in full.
"Class R-III Certificate": Any one of the Certificates with a
"Class R-III" designation on the face thereof, substantially in the form of
Exhibit A-19 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 one of the Certificates with a
"Class X" designation on the face thereof, substantially in the form of Exhibit
A-1, evidencing "regular interests" in REMIC III for purposes of the REMIC
Provisions.
"Class X Component": Any of the fifteen (15) components
constituting "regular interests" in REMIC III for purposes of the REMIC
Provisions and comprising the Class X Certificates. Such components are
identified as Class XX-0, XX-0, XX, XX, XX, XX, LF, LG, LH, LJ, LK, LL, LM, LN
and LO Components.
"Closing Date": August 17, 2000.
"CMSA Periodic Loan File": The monthly report in the "CMSA
periodic loan file" format containing such information for the Mortgage Loans as
may be reasonably requested by the Depositor, which report shall be
substantially in the form attached hereto as Exhibit J.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date and
any Mortgage Loan, the period commencing immediately following the prior such
period (or, in the case of the initial Collection Period, commencing immediately
following the Cut-off Date for such Mortgage Loan) and ending on and including
the related Determination Date. With respect to
17
any Distribution Date and the Mortgage Certificate, the period commencing
immediately following the prior such period (or, in the case of the initial
Collection Period, commencing immediately following the Cut-off Date for the
Mortgage Certificate) and ending on and including the related Due 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 3.19(f) to cover Prepayment
Interest Shortfalls and Extraordinary Prepayment Interest Shortfalls or Section
3.19(e) to cover Balloon Payment Interest Shortfalls.
"Component Notional Amount": As to each of the Class X
Components, a notional principal amount of which the Accrued Certificate
Interest of such component is calculated from time to time equal to the
Uncertificated Principal Balance of the alphabetically corresponding REMIC II
Regular Interest.
"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 O
Certificates.
"Corners REMIC": The single-asset REMIC established with
respect to the mortgage loan identified on the Mortgage Asset Schedule as loan
number 00-0000000, which REMIC was created by a REMIC Declaration made by
Salomon Brothers Realty Corp. on April 27, 2000.
"Corners REMIC Asset": The REMIC regular interest in the
Corners REMIC, which regular interest was transferred and assigned by Salomon
Brothers Realty Corp. to the Depositor pursuant to the Mortgage Loan Purchase
Agreement between the Depositor and Salomon Brothers Realty Corp.
"Corners REMIC Residual Interest": The REMIC residual interest
in the Corners REMIC, which residual interest was transferred and assigned by
Salomon Brothers Realty Corp. to the Depositor pursuant to the Mortgage Loan
Purchase Agreement between the Depositor and Salomon Brothers Realty Corp.
18
"Corporate Trust Office": The principal corporate trust office
of the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located for Certificate transfer purposes at
Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000, Attention: Corporate Trust Services (CMBS) - GMAC Commercial
Mortgage Securities, Inc. Series 2000-C2, and for all other purposes at 00000
Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Services (CMBS) - GMAC Commercial Mortgage Securities, Inc. Series 2000-C2.
"Corrected Mortgage Loan": Any Mortgage Loan (and each related
Cross-Collateralized Mortgage Loan) that had been a Specially Serviced Mortgage
Loan but has ceased to be such in accordance with the definition of "Specially
Serviced Mortgage Loan" (other than by reason of a Liquidation Event occurring
in respect of such Mortgage Loan or a related Mortgaged Property becoming an REO
Property).
"CPR": An assumed constant rate of prepayment each month
(which is quoted on a per annum basis) relative to the then outstanding
principal balance of a pool of mortgage loans for the life of such mortgage
loans.
"Credit File": Any documents, other than documents required to
be part of the related Mortgage File, in the possession of the Master Servicer
or Special Servicer and relating to the origination and servicing of any
Mortgage Loan.
"Credit Lease": With respect to each Credit Lease Loan, the
lease agreement between the Mortgagor as lessor and the Tenant as lessee of the
related Mortgage Property.
"Credit Lease Loan": Each Mortgage Loan that is identified as
a "Credit Lease Loan" on the Mortgage Asset Schedule.
"Cross-Collateralized Mortgage Loans": Any two or more
Mortgage Loans listed on the Mortgage Asset 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 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
19
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 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;
(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
REO Loans, in each case net of any portion of such amounts that represents a
recovery of the principal portion of any Monthly Payment (other than a Balloon
Payment) due, or of the principal portion of any Assumed Monthly Payment deemed
due, in respect of any such REO Loan or the related Mortgage Loan on a Due Date
during or prior to same calendar month as such Distribution Date and not
previously recovered; and
(f) the principal portion of all Monthly Payments (including
any prepayments) due in respect of the Mortgage Certificate on the related Due
Date occurring during the same calendar month as such Distribution Date.
"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, the Due
Date for such Mortgage Loan in August 2000. With respect to the Mortgage
Certificate, August 1, 2000.
"Cut-off Date Principal Balance": With respect to any Mortgage
Asset, the outstanding principal balance of such Mortgage Asset as of the
Cut-off Date, after application of all payments of principal due on or before
such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage
Loan (or group of Cross-Collateralized Mortgage Loans) for any specified period,
the debt service coverage ratio calculated in accordance with Exhibit I using
the methodologies set forth in Exhibit F.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, other than a
reduction resulting from a Deficient Valuation.
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"Defaulted Mortgage Loan": A Mortgage 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.
"Default Interest": With respect to any Mortgage Loan (or
related REO Loan), any amounts collected thereon, other than interest at the
Revised Rate accrued on any ARD Loan after its Anticipated Repayment Date, late
payment charges and Prepayment Premiums, that represent penalty interest in
excess of interest on the principal balance of such Mortgage Loan (or REO Loan)
accrued at the related Mortgage Rate.
"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": A Mortgage Loan that is designated as such
on the Mortgage Asset Schedule.
"Defeasance Option": The right of a Mortgagor, pursuant to the
terms of the related Mortgage Note or related Mortgage Loan Documents, to obtain
a release of any portion of the related Mortgaged Property from the lien of the
related Mortgages upon the pledge to the Trustee of Defeasance Collateral.
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"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 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.
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"Delinquent Loan Status Report": A report or reports setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the immediately preceding Determination Date, were (i) delinquent
30-59 days, (ii) delinquent 60-89 days, (iii) delinquent 90 days or more, (iv)
current but specially serviced, (v) in foreclosure but as to which the related
Mortgaged Property had not become REO Property, or (vi) related to Mortgaged
Property which had become REO Property, together with such additional
information in respect of each such Mortgage Loan as is contemplated on Exhibit
H hereto.
"Depositor": GMAC Commercial Mortgage Securities, Inc. or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Designated Sub-Servicer": Any Sub-Servicer set forth on
Exhibit L hereto and any successor thereto under the related Designated
Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement": With respect to any
Additional Servicing Fee Mortgage Loan, the agreement among the Master Servicer,
the applicable Designated Sub-Servicer and Archon Financial, L.P. pursuant to
which the Designated Sub-Servicer agrees to service the Additional Servicing Fee
Mortgage Loans.
"Determination Date": With respect to any Distribution Date,
the 5th day of the month in which such Distribution Date occurs, or if such 5th
day is not a Business Day, the Business Day immediately following.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof that are not (within
the meaning of Treasury Regulations Section 1.512(b)-1(c)(5)) customarily
provided to tenants in connection with the rental of space for occupancy, the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers in the ordinary course of a trade or business,
the performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by REMIC I, in each case other than through an
Independent Contractor; provided, however, that the Trustee (or the Special
Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or the Special Servicer on behalf of
the Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs (of the
type that would be deductible under Code Section 162) or capital expenditures
with respect to such REO Property.
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"Discount Rate": With respect to each Mortgage Loan as to
which there has been a prepayment during a Collection Period and for which a
Prepayment Premium is collected, the yield (compounded monthly) for "This Week"
as reported by the Federal Reserve Board in Federal Reserve Statistical Release
H.15(519) for the constant maturity treasury having a maturity coterminous with
the Anticipated Repayment Date, in the case of an ARD Loan, or the Maturity
Date, in the case of each other Mortgage Loan, of such Mortgage Loan as of the
related Determination Date. If there is no Discount Rate for instruments having
a maturity coterminous with the Maturity Date or Anticipated Repayment Date, as
applicable, of the applicable Mortgage Loan, then the Discount Rate will be
equal to the linear interpolation of the yields of the constant maturity
treasuries with maturities next longer and shorter than such Maturity Date or
Anticipated Repayment Date, as the case may be.
"Discount Rate Fraction": With respect to the distribution of
any Prepayment Premium received with respect to any Mortgage Loan to the Holders
of any Class of Principal Balance Certificates on any Distribution Date, a
fraction (not greater than 1.0 or less than zero), (a) the numerator of which is
equal to the excess, if any, of (x) the Pass-Through Rate for such Class of
Certificates over (y) the relevant Discount Rate and (b) the denominator of
which is equal to the excess, if any, of (x) the Mortgage Rate of the related
Mortgage Loan over (y) the relevant Discount Rate.
"Distributable Certificate Interest": With respect to any
Class of REMIC III Regular Certificates, for any Distribution Date, the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, reduced (to not less than zero) by that portion, if any, of
the Net Aggregate Prepayment Interest Shortfall, if any, for such Distribution
Date allocated to such Class of Certificates as set forth below. The Net
Aggregate Prepayment Interest Shortfall, if any, for each Distribution Date
shall be allocated on such Distribution Date among the REMIC III Regular
Certificates, pro rata, in accordance with the respective amounts of Accrued
Certificate Interest for such Classes of Certificates for such Distribution
Date. With respect to any Class X Component, for any Distribution Date, the
Accrued Certificate Interest in respect of such component 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 component as set forth below. The Net Aggregate Prepayment
Interest Shortfall, if any, allocated to the Class X Certificates for each
Distribution Date shall be allocated to each Class X Component pro rata, in
accordance with the respective amount of Accrued Certificate Interest
attributable to such Class X Component.
"Distribution Account": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b) in trust for
the Certificateholders, which shall be entitled "Xxxxx Fargo Bank Minnesota,
N.A., as Trustee, in trust for the registered holders of GMAC Commercial
Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series 2000-C2."
Any such account or accounts shall be an Eligible Account.
"Distribution Date": The 16th day of any month, or if such
16th day is not a Business Day, the Business Day immediately following,
commencing in September 2000.
"Distribution Date Statement": As defined in Section 4.02(a).
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"Due Date": With respect to (i) any Mortgage 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 had been scheduled to be first due; (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 had been scheduled to be first due; and (iv) the
Mortgage Certificate, the day of the month set forth in the Mortgage Certificate
on which each Monthly Payment on the Mortgage Certificate is first due.
"Eligible Account": An account 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 or (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 or (y) AA- 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 Title 12 of the Code
of Federal Regulations Section 9.10(b), or (iii) an account or accounts of a
depository institution acceptable to each Rating Agency, as evidenced by written
confirmation from such Rating Agency to the effect that use of any such account
as the 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 by such Rating Agency.
"Emergency Advance": Any Servicing Advance that must be made
within five Business Days by the Special Servicer in order to avoid any material
penalty, any material harm to a Mortgaged Property or any other material adverse
consequence to the Trust Fund.
"Environmental Assessment": A "Phase I assessment" conducted
in accordance with ASTM Standard E 1527-93 or any successor thereto published by
ASTM.
"Environmental Policy": Collectively, the Secured Creditor
Impaired Property Policies (Portfolio) issued by American International
Specialty Lines Insurance Company with respect to the Mortgaged Properties
listed on Schedule IV.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Payment": Any payment received by the Master Servicer
or the Special Servicer for the account of any Mortgagor for application toward
the payment of real estate taxes, assessments, insurance premiums, ground rents
(if applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Excess Interest": With respect to each of the ARD Loans,
interest accrued on such ARD Loan and allocable to the Excess Rate and, except
to the extent limited by applicable law, interest accrued at the Revised Rate on
any such accrued interest that is unpaid. The Excess
24
Interest is an asset of the Trust Fund which is a Grantor Trust Asset not held
in REMIC I, REMIC II or REMIC III.
"Excess Liquidation Proceeds": With respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of that Mortgage Loan or related
REO Property net of any related Liquidation Expenses, over (ii) the amount that
would have been received if a Principal Payment in full had been made with
respect to such Mortgage Loan on the Due Date immediately following the date on
which such proceeds were received.
"Excess Liquidation Proceeds Reserve Account": The segregated
account 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, N.A., as Trustee, in trust for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
2000-C2 -- Excess Liquidation Proceeds Reserve Account." Any such account shall
be an Eligible Account.
"Excess Rate": With respect to each ARD Loan after the related
Anticipated Repayment Date, the excess of (i) the applicable Revised Rate over
(ii) the applicable initial Mortgage Rate, each as set forth in the Mortgage
Asset 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 related Supplemental
Agreement, as applicable, by the Majority Certificateholder of a Controlling
Class pursuant to Section 3.18(b) or by the Master Servicer or the Special
Servicer pursuant to Section 3.18(c) or by the Master Servicer or the Depositor
pursuant to Section 9.01)
25
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 neither
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 which 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 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.
"GMACCM": GMAC Commercial Mortgage Corporation or its
successor in interest.
"Grantor Trust": That certain "grantor trust" (within the
meaning of the Grantor Trust Provisions), the assets of which include the
Grantor Trust Assets.
"Grantor Trust Assets": Any Excess Interest.
"Grantor Trust Provisions": Subpart E of Subchapter J and
Section 7701 of the Code, and final Treasury Regulations, published rulings,
notices and announcements, promulgated thereunder, as the foregoing may be in
effect from time to time.
"Gross Margin": With respect to each Adjustable Rate Mortgage
Loan (and any successor REO Loan), the fixed number of percentage points set
forth in the Mortgage Asset Schedule that is added to the applicable value of
the related Index on each Interest Rate Adjustment Date in accordance with the
terms of the related Mortgage Note to determine, subject to any applicable
periodic and lifetime limitations on adjustments thereto, the related Mortgage
Rate.
"Ground Lease": The ground lease pursuant to which any
Mortgagor holds a leasehold interest in the related Mortgaged Property.
"Guarantor": The guarantor under any Guaranty with respect to
a Credit Lease.
"Guaranty": With respect to any Credit Lease Loan, a guaranty
agreement executed by an affiliate of the related Tenant that guarantees the
Tenant's obligations under the related Credit Lease.
26
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including, without
limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"), radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory", "usable work
in process" or similar classification which would, if classified as unusable, be
included in the foregoing definition.
"Historical Loan Modification Report": A report or reports
setting forth, among other things, those Mortgage Loans which, as of the close
of business on the immediately preceding Determination Date, have been modified
pursuant to this Agreement (i) during the Collection Period ending on such
Determination Date and (ii) since the Cut-off Date, showing the original and the
revised terms thereof, together with such additional information in respect of
each such Mortgage Loan as is contemplated by Exhibit H hereto.
"Historical Loss Report": A report or reports setting forth,
among other things, as of the close of business on the immediately preceding
Determination Date, (i) the amount of Liquidation Proceeds and Liquidation
Expenses, both for the Collection Period ending on such Determination Date and
for all prior Collection Periods, and (ii) the amount of Realized Losses
occurring during such Collection Period and historically, set forth on a
Mortgage Loan-by-Mortgage Loan and REO Property-by-REO Property basis, together
with such additional information in respect of each Mortgage Loan and REO
Property as to which a Final Recovery Determination has been made as is
contemplated by Exhibit H hereto.
"Independent": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, each Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Trustee and any and
all Affiliates thereof, (ii) does not have any direct financial interest in or
any material indirect financial interest in any of the Depositor, any Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Trustee or any
Affiliate thereof, and (iii) is not connected with the Depositor, the Master
Servicer, any Mortgage Loan Seller, the Special Servicer, the Trustee or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, the Master
Servicer, the Special Servicer or any Affiliate thereof merely because such
Person is the beneficial owner of 1% or less of any class of securities issued
by the Depositor, the Master Servicer or any Affiliate thereof, as the case may
be.
"Independent Contractor": Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by any Person that owns, directly or indirectly, 35 percent or more of any Class
of Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust Fund, delivered to the Trustee), so long as REMIC I does not receive
or derive any income from such Person and provided that the relationship between
such Person and REMIC I is at arm's length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust Fund,
27
to the effect that the taking of any action in respect of any REO Property by
such Person, subject to any conditions therein specified, that is otherwise
herein contemplated to be taken by an Independent Contractor will not cause such
REO Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"Index": With respect to each Adjustable Rate Mortgage Loan
(and any successor REO Loan), for each Interest Rate Adjustment Date, the base
index used to determine the new Mortgage Rate in effect thereon as specified in
the related Mortgage Note. If the Index currently in effect for any Adjustable
Rate Mortgage Loan (or successor REO Loan) ceases to be available, the Master
Servicer shall, subject to Section 3.19(a) and the terms of the related Mortgage
Note, select a comparable alternative index.
"Initial Balance": The aggregate Cut-off Date Principal
Balance of the Mortgage Assets.
"Initial Class Notional Amount": With respect to the Class X
Certificates, the initial Class Notional Amount thereof as of the Closing Date,
equal to $773,760,240.
"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.
"Insurance Policy": With respect to any Mortgage Loan, any
hazard insurance policy, flood insurance policy, title policy, credit lease
enhancement insurance policy, residual value insurance policy or other insurance
policy that is maintained from time to time in respect of such Mortgage Loan or
the related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance
Policy, to the extent such proceeds are not applied to the restoration of the
related Mortgaged Property or released to the Mortgagor, in either case, in
accordance with the Servicing Standard (including any amounts paid by the Master
Servicer or Special Servicer pursuant to Section 3.07).
"Interest Accrual Period": With respect to any Distribution
Date, the calendar month immediately preceding the month in which such
Distribution Date occurs.
"Interest Rate Adjustment Date": With respect to each
Adjustable Rate Mortgage Loan (and any successor REO Loan), any date on which
the related Mortgage Rate is subject to adjustment pursuant to the related
Mortgage Note. The first Interest Rate Adjustment Date subsequent to the Cut-off
Date for each Adjustable Rate Mortgage Loan is specified in the Mortgage Asset
Schedule, and successive Interest Rate Adjustment Dates for such Mortgage Loan
(and any successor REO Loan) shall thereafter periodically occur with the
frequency specified in the Mortgage Asset Schedule.
"Interest Reserve Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for the
Certificateholders, which shall be entitled "Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee, in trust for the registered holders of GMAC
28
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
2000-C2 -- Interest Reserve Account." Any such account shall be an Eligible
Account.
"Interest Reserve Loans": Any Mortgage Loan bearing interest
computed on an actual/360 basis.
"Interested Person": The Depositor, the Master Servicer, the
Special Servicer, any Holder of a Certificate, or any Affiliate of any such
Person.
"Investment Account": Each of the Certificate Account, the
Distribution Account, any Lock-Box Account, any Cash Collateral Account, the
Interest Reserve Account or any REO Account.
"Investor Certification": A certification in the form of
Exhibit K hereto.
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the REMIC Provisions.
"Late Collections": With respect to any Mortgage Loan, all
amounts received thereon during any Collection Period, whether as payments,
Insurance Proceeds, Liquidation Proceeds, payments of Substitution Shortfall
Amounts, or otherwise, which represent late payments or collections of principal
or interest due in respect of such Mortgage Loan (without regard to any
acceleration of amounts due thereunder by reason of default) on a Due Date in a
previous Collection Period (or, in the case of a Late Due Date Mortgage Loan, on
any Due Date prior to the date of receipt) and not previously recovered. With
respect to any Distribution Date and any REO Loan, all amounts received in
connection with the related REO Property during any Collection Period, whether
as Insurance Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of principal or interest due or deemed due in respect
of such REO Loan or the predecessor Mortgage Loan (without regard to any
acceleration of amounts due under the predecessor Mortgage 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 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": Any Mortgage Loan (or successor
REO Loan) with a Due Date which occurs after the Determination Date in the same
calendar month as such Due Date.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan; (iii) such
Mortgage Loan is repurchased or replaced by a Mortgage Loan Seller pursuant to
Section 6 of the related Mortgage Loan Purchase Agreement or by GMACCM pursuant
to Section 4 of each Supplemental Agreement; (iv) such Mortgage Loan is
purchased by the Majority Certificateholder of the Controlling Class pursuant to
Section 3.18(b); (v) such Mortgage Loan is purchased by the Master Servicer or
the Special Servicer pursuant to Section 3.18(c); or (vi) such Mortgage Loan is
purchased by the Master Servicer or the Depositor pursuant to Section 9.01. With
respect to any REO Property (and the related REO Loan), any of the following
events: (i) a Final Recovery Determination is made with respect to
29
such REO Property; or (ii) such REO Property is purchased by the Master Servicer
or the Depositor pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and
necessary "out of pocket" costs and expenses incurred by the Special Servicer in
connection with the liquidation of any Specially Serviced Mortgage Loan or REO
Property pursuant to Section 3.09 or 3.18 (including, without limitation, legal
fees and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced
Mortgage Loan or REO Property (other than any Specially Serviced Mortgage Loan
or REO Property purchased by the Majority Certificateholder of the Controlling
Class, the Master Servicer or the Special Servicer pursuant to Section 3.18 or
by the Master Servicer or the Depositor pursuant to Section 9.01), the fee
designated as such and payable to the Special Servicer pursuant to Section
3.11(c).
"Liquidation Fee Rate": With respect to each Specially
Serviced Mortgaged Loan or REO Property as to which a Liquidation Fee is
payable, 1.00%.
"Liquidation Proceeds": Cash amounts (other than Insurance
Proceeds and REO Revenues) received or paid by the Master Servicer or the
Special Servicer in connection with: (i) the taking of all or a part of a
Mortgaged Property by exercise of the power of eminent domain or condemnation;
(ii) the liquidation of a Mortgaged Property or other collateral constituting
security for a defaulted Mortgage Loan, 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 Defaulted Mortgage Loan by the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18(b) or by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c) or any other sale thereof pursuant
to Section 3.18(d); (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 each 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 each Supplemental Agreement; or (vii) the purchase of a Mortgage
Loan or REO Property by the Master Servicer or the Depositor pursuant to Section
9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, 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,
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 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
30
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, the
lock-box agreement, if any, between the originator of such Mortgage Loan and the
Mortgagor, pursuant to which the related Lock-Box Account, if any, is to be
established.
"Loss Reimbursement Amount": With respect to any REMIC I
Regular Interest and any Distribution Date (except the initial Distribution
Date, with respect to which the Loss Reimbursement Amount for such REMIC I
Regular Interest will be zero), an amount equal to (a)(i) the Loss Reimbursement
Amount with respect to such REMIC I Regular Interest for the immediately
preceding Distribution Date, minus (ii) the aggregate of all reimbursements
deemed made to REMIC II on the immediately preceding Distribution Date pursuant
to Section 4.01(a) with respect to such REMIC I Regular Interest, plus (iii) the
aggregate of all reductions made to the Uncertificated Principal Balance of
(and, accordingly, the aggregate of all Realized Losses and Additional Trust
Fund Expenses deemed allocated to) such REMIC I Regular Interest on the
immediately preceding Distribution Date pursuant to Section 4.04(a), plus (b)
one month's interest (calculated on the basis of a 360-day year consisting of
twelve 30-day months) on the amount described in clause (a) at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for the current
Distribution Date.
"MAI": Member of Appraisal Institute.
"Majority Certificateholder": With respect to any specified
Class or Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes in each case determined without giving effect to the last sentence of
the definition of "Voting Rights."
"Master Servicer": GMACCM, or any successor master servicer
appointed as herein provided.
"Master Servicer Remittance Date": The Business Day preceding
each Distribution Date.
"Master Servicing Fee": With respect to any Distribution Date
and each Mortgage Loan and REO Loan, that portion of the Servicing Fee that has
accrued at the Master Servicing Fee Rate.
"Master Servicing Fee Rate": With respect to each Mortgage
Loan and REO Loan acquired by the Depositor, 0.02% per annum.
"Material Document Defect": As defined in Section 2.03(a).
"Maturity Date": With respect to any Mortgage 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
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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 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 granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.20 or (iv) in the case of an ARD Loan, the
Anticipated Repayment Date for such Mortgage Loan.
"Modified Mortgage Loan": Any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 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);
(B) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount not less than the fair market value
(as is), as determined by an Appraisal delivered to the Special
Servicer (at the expense of the related Mortgagor and upon which the
Special Servicer may conclusively rely), of the property to be
released; or
(C) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage
Loan or reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and/or interest on such Mortgage Loan,
including any Balloon Payment, which is payable by a Mortgagor from time to time
under the terms of the related Mortgage Note (as such may be modified at any
time following the Closing Date) and applicable law, without regard to the
accrual of Excess Interest on or the application of any excess cash flow to pay
principal on any ARD Loan. With respect to the Mortgage Certificate, the monthly
payment of principal and/or interest on the Mortgage Certificate which is
payable by FHLMC on each Due Date.
"Mortgage": With respect to any Mortgage 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 Asset Schedule": The list of Mortgage Assets
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
(a) with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
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(iii) the (A) Mortgage Rate in effect as of the Cut-off Date and (B)
whether such Mortgage Loan is an Adjustable Rate Mortgage Loan or a
Fixed Rate Loan;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the (A) remaining term to stated maturity, (B) with respect to
each ARD Loan, the Anticipated Repayment Date and (C) Stated Maturity
Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of an Adjustable Rate Mortgage Loan, the (A) Index,
(B) Gross Margin, (C) first Mortgage Rate adjustment date following the
Cut-off Date and the frequency of Mortgage Rate adjustments, and (D)
maximum and minimum lifetime Mortgage Rate;
(x) whether such Mortgage Loan is an ARD Loan, a Credit Lease Loan, a
Defeasance Loan, a Broker Strip Loan or an Additional Servicing Fee
Mortgage Loan;
(xi) in the case of a Credit Lease Loan, the identity of the Tenant and
the Guarantor under any applicable Guaranty, and the publicly available
corporate credit ratings of such Tenant and Guarantor as of the Closing
Date; and
(xii) the Servicing Fee Rate.
and (b) with respect to the Mortgage Certificate:
(i) the loan number;
(ii) the Mortgage Rate;
(iii) the original principal balance;
(iv) the Cut-off Date Principal Balance;
(v) the Due Date; and
(vi) the Servicing Fee Rate.
Such schedule shall also set forth the aggregate Cut-off Date Principal Balance
for all of the Mortgage Assets. Such list may be in the form of more than one
list, collectively setting forth all of the information required.
"Mortgage Assets": The Mortgage Loans and the Mortgage
Certificate.
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"Mortgage Certificate": The FHLMC Multifamily Gold PC
(including securities entitlements thereto) identified on the Mortgage Asset
Schedule and transferred and assigned to the Securities Intermediary pursuant to
Section 2.01 and held in the Trust Fund. The CUSIP number of the Mortgage
Certificate is 0000XXXX0 and the final payment date of the Mortgage Certificate
is May 1, 2010.
"Mortgage Certificate Assignment Agreement": The Assignment
and Assumption Agreement, dated as of August 17, 2000, between GMACCM and the
Depositor with respect to the conveyance of the Mortgage Certificate by GMACCM
to the Depositor.
"Mortgage Certificate Documents": Collectively, the following
documents: (i) the Offering Circular of FHLMC, dated December 1, 1997, with
respect to its Multifamily Mortgage Participation Certificates (Guaranteed);
(ii) the Multifamily Mortgage Participation Certificate Agreement (Guaranteed)
of FHLMC, dated as of December 1, 1997, as it may be amended and supplemented
from time to time; and (iii) the PC Data Supplement dated August 16, 2000 with
respect to the Mortgage Certificate.
"Mortgage Certificate Securities Account": As defined in
Section 3.26.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 2.01(b), collectively the following documents:
(1) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without recourse,
in blank or to the order of the Trustee in the following form: "Pay to
the order of Xxxxx Fargo Bank Minnesota, N.A., as trustee for the
registered holders of GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2000-C2, without recourse";
(2) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan
to the most recent assignee of record thereof prior to the Trustee, if
any, in each case with evidence of recording indicated thereon;
(3) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee, or if none by the originator, either in blank or in favor of
the Trustee (in such capacity);
(4) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan
to the most recent assignee of record thereof prior to the Trustee, if
any, in each case with evidence of recording thereon;
(5) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee, or, if none, by the originator, either in blank or in favor of
the Trustee (in such capacity), which assignment may be included as
part of the corresponding assignment of Mortgage, referred to in clause
(3) above;
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(6) an original or a copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan
to the most recent assignee of record thereof prior to the Trustee, if
any;
(7) an original assignment of any related Security Agreement (if such
item is a document separate from the Mortgage) executed by the most
recent assignee of record thereof prior to the Trustee or, if none, by
the originator, either in blank or in favor of the Trustee (in such
capacity), which assignment may be included as part of the
corresponding assignment of Mortgage referred to in clause (3) above;
(8) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording
thereon, where appropriate, in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any related security
document have been modified or the Mortgage Loan has been assumed;
(9) the original or a copy of the lender's title insurance policy,
together with all endorsements or riders (or copies thereof) that were
issued with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgaged Property;
(10) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan which was in the possession of the
Mortgage Loan Seller at the time the Mortgage Files were delivered to
the Trustee together with (A) if applicable, the original or copies of
any intervening assignments of such guaranty showing a complete chain
of assignment from the originator of the Mortgage Loan to the most
recent assignee thereof prior to the Trustee, if any, and (B) an
original assignment of such guaranty executed by the most recent
assignee thereof prior to the Trustee or, if none, by the originator;
(11) (A) file or certified copies of any UCC financing statements and
continuation statements which were filed in order to perfect (and
maintain the perfection of) any security interest held by the
originator of the Mortgage Loan (and each assignee of record prior to
the Trustee) in and to the personalty of the Mortgagor at the Mortgaged
Property (in each case with evidence of filing thereon) and which were
in the possession of the Mortgage Loan Seller (or its agent) at the
time the Mortgage Files were delivered to the Trustee 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;
35
(13) the related Ground Lease or a copy thereof, if any;
(14) if the Mortgage Loan is a Credit Lease Loan, an original of the
credit lease enhancement insurance policy, if any, obtained with
respect to such Mortgage Loan and an original of the residual value
insurance policy, if any, obtained with respect to such Mortgage Loan;
(15) the original or a copy of any lockbox agreement or deposit account
or similar agreement;
(16) the original or a copy of any intercreditor agreement with
respect to the Mortgage Loan; and
(17) any additional documents required to be added to the Mortgage File
pursuant to this Agreement;
provided that, with respect to the Bladensburg REMIC Asset, the Corners REMIC
Asset and the Woodbury REMIC Asset, the Mortgage File shall also include a copy
of the executed REMIC Declarations relating thereto; and provided, further, that
whenever the term "Mortgage File" is used to refer to documents actually
received by the Trustee or a Custodian appointed thereby, such term shall not be
deemed to include such documents and instruments required to be included therein
unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans or interests
therein, including the Bladensburg REMIC Asset, the Corners REMIC Asset and the
Woodbury REMIC Asset, transferred and assigned to the Trustee pursuant to
Section 2.01 and from time to time held in the Trust Fund (including, without
limitation, all Replacement Mortgage Loans). As used herein, the term "Mortgage
Loan" includes the related Mortgage Note, Mortgage, participation certificate or
agreement and/or other security documents contained in the related Mortgage
File. As used herein, the term "Mortgage Loan" excludes the mortgage loans
underlying the Mortgage Certificate.
"Mortgage Loan Purchase Agreement": With respect to any
Mortgage Loan Seller, each agreement between the Depositor and such Mortgage
Loan Seller relating to the transfer of all of such Mortgage Loan Seller's
right, title and interest in and to the related Mortgage Loans.
"Mortgage Loan Seller": German American Capital Corporation,
Xxxxxxx Xxxxx Mortgage Company, Salomon Brothers Realty Corp. and any other
Person (other than the Depositor) that is a party to a Mortgage Loan Purchase
Agreement.
"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).
36
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or
prior to its Maturity Date, the fixed or adjustable annualized rate (not
including, in the case of any ARD Loan, any increase in the rate of interest to
the Revised Rate) at which interest is scheduled (in the absence of a default)
to accrue on such Mortgage Loan 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 after its Maturity
Date, the annualized rate described in clause (i) above determined without
regard to the passage of such Maturity Date; (iii) any REO Loan, the annualized
rate described in clause (i) or (ii), as applicable, above determined as if the
predecessor Mortgage Loan had remained outstanding; and (iv) the Mortgage
Certificate, 7.375% per annum.
"Mortgaged Property": Individually and collectively, as the
context may require, the real property interest subject to the lien of a
Mortgage and constituting collateral for a Mortgage Loan. 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. As used herein, the term "Mortgaged
Property" excludes the mortgaged properties securing the mortgage loans
underlying the Mortgage Certificate.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including without limitation, any Person that has acquired the related Mortgaged
Property and assumed the obligations of the original obligor under the Mortgage
Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to
any Distribution Date, 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 3.19(f) in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period on funds
relating to the Trust Fund held in such account, exceeds the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account
for any Collection Period, the amount by which the aggregate of all losses, if
any, incurred during such Collection Period in connection with the investment of
funds relating to the Trust Fund held in such account in accordance with Section
3.06, exceeds the aggregate of all interest and other income realized during
such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect, minus the Servicing Fee Rate, but, for purposes of
calculating the REMIC I Remittance Rate, the REMIC II Remittance Rate and
Weighted Average Net Mortgage Rate, determined without regard to any
modification, waiver or amendment of the terms of such Mortgage Loan, whether
37
agreed to by the Master Servicer or Special Servicer or resulting from (i) the
bankruptcy, insolvency or similar proceeding involving the related Mortgagor or
(ii) the increase in the interest rate attributable to the Revised Rate to any
ARD Loan and, with respect to any Mortgage Loan that does not accrue interest on
the basis of a 360-day year consisting of twelve 30-day months, the Net Mortgage
Rate of such Mortgage Loan for such purposes for any one-month preceding a
related Due Date will be the annualized rate at which interest would have to
accrue in respect of such loan on the basis of a 360-day year consisting of
twelve 30-day months in order to produce the aggregate amount of interest
actually accrued in respect of such loan during such one-month period at the
related Mortgage Rate (net of the related Servicing Fee Rate); provided,
however, that with respect to the Interest Reserve Loans, (i) the Net Mortgage
Rate for the one-month period preceding the Due Dates in (a) January of each
calendar year that is not a leap year and (b) February of each calendar year,
will be determined net of the Withheld Amounts and (ii) the Net Mortgage Rate
for the one-month period preceding the Due Dates in March of each calendar year
will be determined after taking into account the addition of the Withheld
Amounts. With respect to the Mortgage Certificate, as of any date of
determination, a rate per annum equal to the related Mortgage Rate minus the
Trustee Fee Rate.
"Net Operating Income": With respect to any Mortgaged
Property, for any specified period, the net operating income calculated in
accordance with Exhibit G using the methodologies set forth in Exhibit F.
"Nonrecoverable Advance": Any Nonrecoverable Delinquency
Advance or Nonrecoverable Servicing Advance.
"Nonrecoverable Delinquency Advance": Any Delinquency Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO Loan
which, in the judgment of the Master Servicer or, if applicable, the Trustee,
will not be ultimately recoverable (together with Advance Interest thereon) from
late payments, Insurance Proceeds or Liquidation Proceeds, or any other recovery
on or in respect of such Mortgage Loan or REO Loan which shall be evidenced by
an Officer's Certificate as provided by Section 4.03(c).
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property which, in the judgment of the Master Servicer, the Special Servicer or,
if applicable, the Trustee, will not be ultimately recoverable (together with
Advance Interest thereon) from late payments, Insurance Proceeds, Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan or REO
Property which shall be evidenced by an Officers' Certificate as provided by
Section 3.11(g).
"Non-Registered Certificate": Unless and until registered
under the Securities Act, any Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class X 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,
38
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.
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof may have and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"Pass-Through Rate": With respect to:
(1) the Class X Certificates, (a) for the initial Distribution Date
1.041% per annum, and (b) for any subsequent Distribution Date, the per
annum rate, expressed as a percentage, obtained by dividing (i) the sum
of the products of (x) the Uncertificated Principal Balance of each
Class of REMIC II Regular Interest immediately prior to such
Distribution Date and (y) the related Component Rate for such
Distribution Date by (ii) the Class Notional Amount; and
(2) the Class A-1, Class G, Class H, Class J, Class K, Class L, Class
M, Class N and Class O Certificates, for any Distribution Date, the
fixed rate per annum specified for such Class in the Preliminary
Statement;
(3) the Class A-2, Class B, Class C and Class D Certificates, for any
Distribution Date, the lesser of the fixed rate per annum specified as
such in the Preliminary Statement and the Weighted Average Net Mortgage
Rate; and
(4) the Class E and Class F Certificates, for any Distribution Date,
the Weighted Average Net Mortgage Rate.
"Payment Adjustment Date": With respect to each Adjustable
Rate Mortgage Loan, any date on which the related Monthly Payment is subject to
adjustment pursuant to the related Mortgage Note. The first Payment Adjustment
Date subsequent to the Cut-off Date for each Adjustable Rate Mortgage Loan is
specified in the Mortgage Asset Schedule, and successive Payment Adjustment
Dates for such Mortgage Loan shall thereafter periodically occur with the
frequency specified in the Mortgage Asset 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
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
39
numerator of which is the Certificate Principal Balance or the Certificate
Notional Amount of such Certificate as of the Closing Date, as specified on the
face thereof, and the denominator of which is the Initial Class Principal
Balance or Initial Class Notional Amount of the relevant Class. With respect to
a Residual Certificate, the percentage interest in distributions to be made with
respect to the relevant Class, as stated on the face of such Certificate.
"Permitted Investments": Securities, instruments, or security
entitlements with respect to one or more of the following:
(1) obligations of or guaranteed as to principal and interest by the
United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United
States;
(2) repurchase agreements on obligations specified in clause (i)
maturing not more than 30 days from the date of acquisition thereof,
provided that the unsecured obligations of the party agreeing to
repurchase such obligations are at the time rated by each Rating Agency
in its highest short-term rating available;
(3) federal funds, unsecured certificates of deposit, time deposits and
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars of
any U.S. depository institution or trust company incorporated under the
laws of the United States or any state thereof or of any domestic
branch of a foreign depository institution or trust company; provided
that the short-term debt obligations of such depository institution or
trust company at all times since the date of acquisition thereof have
been rated by each Rating Agency in its highest short-term rating
available (or, if not rated by Fitch, otherwise acceptable to Fitch as
confirmed in writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then current
rating assigned to any Class of Certificates by such Rating Agency);
(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
(or, if not rated by Fitch, otherwise acceptable to Fitch as confirmed
in writing that such investment would not, in and of itself, result in
a downgrade, qualification or withdrawal of the then current rating
assigned to any Class of Certificates by such Rating Agency); 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;
(6) commercial paper of issuers rated by each Rating Agency in its
highest short-term rating available (or, if not rated by Fitch,
otherwise acceptable to Fitch as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current rating assigned to any
Class of Certificates by such Rating Agency); provided that such
obligations shall have a remaining maturity
40
of not more than 30 days and such obligations are limited to the right
to only monthly principal and interest payments;
(7) short-term debt obligations of issuers rated A-1 (or the
equivalent) by each Rating Agency (or, if not rated by Fitch, otherwise
acceptable to Fitch as confirmed in writing that such investment would
not, in and of itself, result in a downgrade, qualification or
withdrawal of the then current rating assigned to any Class of
Certificates by such 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 (or, if not
rated by Fitch, otherwise acceptable to Fitch as confirmed in writing
that such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current rating
assigned to any Class of Certificates by such Rating Agency); and
(9) other obligations or securities that are acceptable to each Rating
Agency as a Permitted Investment hereunder and which would not result
in the downgrade, qualification or withdrawal of the then-current
rating assigned to any Class of Certificates by the Rating Agency, as
evidenced in writing;
provided, however, that no instrument shall be a Permitted Investment 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
41
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) any electing large partnership under
Section 775 of the Code and (vi) any other Person so designated by the Trustee
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Residual Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Person": Any legal person, including, without limitation, any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Plan": As defined in Section 5.02(c)(i).
"Preliminary Statement": The introductory section in this
Agreement found on pages 2 through 5 hereof.
"Prepayment Assumption": A CPR of 0% and an assumption that a
Principal Prepayment in full will be made on each ARD Loan on its Anticipated
Repayment Date, used for determining the accrual of original issue discount,
market discount and premium, if any, on the REMIC I Regular Interests, the REMIC
II Regular Interests and the Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Mortgage
Loan (other than a Late Due Date Mortgage Loan) that was subject to a Principal
Prepayment in full or in part during any Collection Period, which Principal
Prepayment was received following such Mortgage Loan's Due Date 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) 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 such Mortgage Loan's Due Date 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 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).
42
"Prepayment Premium": Any premium, penalty or fee paid or
payable, as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Mortgage Loan or REO
Loan.
"Primary Servicing Office": With respect to each of the Master
Servicer and the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement; initially located in
Illinois, 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 and Class F 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 Certificate.
"Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of (i) the Current Principal Distribution
Amount for such Distribution Date and (ii) if such Distribution Date is after
the initial Distribution Date, the excess, if any, of the Principal Distribution
Amount for the preceding Distribution Date, over the aggregate distributions of
principal made on the Principal Balance Certificates in respect of such
Principal Distribution Amount on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan 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 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, 2000, as
supplemented by the Prospectus Supplement dated August 8, 2000, relating to the
offering of the Registered Certificates.
"PTCE 95-60": As defined in Section 5.02(c)(ii).
"Purchase Price": With respect to any Mortgage Loan, a price
equal to the outstanding principal balance of such Mortgage Loan as of the date
of purchase, together with (a) all accrued and unpaid interest on such Mortgage
Loan at the related Mortgage Rate in effect from time to time to but not
including the Due Date in the Collection Period of purchase, (b) all related
unreimbursed Servicing Advances, (c) all accrued and unpaid Advance Interest in
respect of related Advances, and (d) if such Mortgage Loan is being purchased by
a Mortgage Loan
43
Seller pursuant to Section 6 of the related Mortgage Loan Purchase Agreement or
by GMACCM pursuant to Section 4 of each Supplemental Agreement (i) all expenses
incurred or to be incurred by the Master Servicer (unless such Mortgage Loan
Seller is acting as Master Servicer), the Depositor and the Trustee in respect
of the Breach or Defect giving rise to the repurchase obligation and (ii) the
aggregate amount of all Special Servicer Fees, Advance Interest (to the extent,
if any, not included in clause (c) above) in respect of related Advances and
Additional Trust Fund Expenses incurred prior to such date of purchase and, in
each case, in respect of the related Mortgage Loan. With respect to any REO
Property, the amount calculated in accordance with the preceding sentence in
respect of the related REO Loan. With respect to the Mortgage Certificate, a
price equal to the outstanding principal balance of the Mortgage Certificate as
of the date of purchase, together with all accrued and unpaid interest on the
Mortgage Certificate at the Mortgage Rate to but not including the Due Date in
the Collection Period of purchase. The Purchase Price for any
Cross-Collateralized Mortgage Loan that is required to be repurchased pursuant
to Section 2.03(a) as a result of a Breach or Defect shall include such
additional amounts as are required to satisfy the "release price" requirements
of the applicable Mortgage Loan documents.
"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" means, in the case of a
Deleted Mortgage Loan, a Mortgage Loan which, on the date of substitution, (i)
has a principal balance, after deduction of the principal portion of the Monthly
Payment due in the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) is accruing interest at a rate of
interest at least equal to that of the Deleted Mortgage Loan; (iii) has a fixed
Mortgage Rate if the Deleted Mortgage Loan is a Fixed Rate Mortgage Loan and an
adjustable Mortgage Rate (with the same Index, Gross Margin and frequency of
Interest Rate Adjustment Dates and Payment Adjustment Dates as the Deleted
Mortgage Loan) if the Deleted Mortgage Loan is an Adjustable Rate Mortgage Loan;
(iv) is accruing interest on the same basis (for example, a 360-day year
consisting of twelve 30-day months) as the Deleted Mortgage Loan; (v) has a
remaining term to stated maturity or Anticipated Repayment Date, in the case of
an ARD Loan, not greater than, and not more than two years less than, that of
the Deleted Mortgage Loan; (vi) has an original Loan-to-Value Ratio not higher
than that of the Deleted Mortgage Loan and a current Loan-to-Value Ratio (equal
to the principal balance on the date of substitution divided by its Appraised
Value as determined by an Appraisal dated not more than twelve months prior to
the date of substitution) not higher than the then current Loan-to-Value Ratio
of the Deleted Mortgage Loan; (vii) will comply with all of the representations
and warranties relating to Mortgage Loans set forth in the related Mortgage Loan
Purchase Agreement, as of the date of substitution; (viii) has an Environmental
Assessment relating to the related Mortgaged Property
44
in its Servicing File; (ix) has a Debt Service Coverage Ratio equal to or
greater than that of the Deleted Mortgage Loan; and (x) as to which the Trustee
has received an Opinion of Counsel, at the related Mortgage Loan Seller's
expense, that such Mortgage Loan is a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; provided that no Mortgage Loan
may have a Maturity Date after the date three years prior to the Rated Final
Distribution Date, and provided, further, that no such Mortgage Loan shall be
substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained. In the event that either one mortgage loan is substituted for more
than one Deleted Mortgage Loan or more than one mortgage loan is substituted for
one or more Deleted Mortgage Loans, then (a) the principal balance referred to
in clause (i) above shall be determined on the basis of aggregate principal
balances and (b) the rates referred to in clauses (ii) and (iii) above and the
remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis. Whenever a Qualifying Substitute
Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to this
Agreement, the party effecting such substitution shall certify that such
Mortgage Loan meets all of the requirements of this definition and shall send
such certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in
August 2033.
"Rating Agency": Each of Fitch and Standard & Poor's.
"Rating Agency Confirmation": With respect to any matter and
any Rating Agency, where required under this Agreement, confirmation in writing
by such Rating Agency that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade
or qualification of the rating assigned by such Rating Agency to any Class of
Certificates then rated by such Rating Agency. For all purposes of this
Agreement, the placement by a Rating Agency of any Class of Certificates on
"negative credit watch" shall constitute a qualification of such Rating Agency's
rating of such Certificates.
"Realized Loss": With respect to each defaulted Mortgage Loan
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 (without taking into account the amounts described in
subclause (iv) of this sentence), at the related Mortgage Rate to but not
including the Due Date in the Collection Period (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 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 paid therefrom).
45
With respect to any Mortgage 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 granted or agreed to by the Master Servicer or Special Servicer
pursuant to Section 3.20, the amount of such principal or interest so forgiven.
With respect to any Mortgage 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 granted or agreed to by
the Master Servicer or Special Servicer pursuant to Section 3.20, the amount of
the consequent reduction in the interest portion of each successive Monthly
Payment due thereon. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to any Distribution Date, the last
Business Day of the calendar month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificates": The Class A-1, Class A-2, Class B,
Class C, Class D and Class E Certificates.
"Reimbursement Rate": The rate per annum applicable to the
accrual of Advance Interest, which rate per annum shall be equal to the "prime
rate" as published in the "Money Rates" section of The Wall Street Journal, as
such "prime rate" may change from time to time.
"Related Borrower Group": Any of the groups of Mortgage Loans
having the same or related Mortgagors as identified in Annex A to the Prospectus
Supplement dated August 8, 2000 under the column heading "Related Group."
"Release Date": As defined in Section 3.08(c).
"REMIC": A "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to which a REMIC election is to be made, consisting of: (i) the
Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of such Mortgage Loans received or receivable after
the Cut-off Date (other than (a) Excess Interest and (b) payments of principal,
interest and other amounts due and payable on the Mortgage Loans on or before
the Cut-off Date), together with the rights under all documents delivered or
caused to be delivered under the Mortgage Loan Purchase Agreements with respect
to the Mortgage Loans by the Mortgage Loan Sellers; (ii) any REO Properties
acquired in respect of the Mortgage Loans; (iii) 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); (iv) the
rights of the Depositor under Sections 2, 4(a) and 6 of each Mortgage Loan
Purchase Agreement and the rights of the Depositor under Sections 2 and 4 of
each Supplemental Agreement assigned by the Depositor to
46
the Trustee; and (v) the Mortgage Certificate and all payments under and
proceeds of the Mortgage Certificate received or receivable after the Cut-off
Date.
"REMIC I Regular Interest": With respect to each Mortgage Loan
(and any successor REO Loan) and the Mortgage Certificate, 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 Asset). The designation for each REMIC I Regular Interest shall be the
loan number for the initial related Mortgage Asset set forth in the Mortgage
Asset 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 Asset 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 fifteen (15) separate
non-certificated beneficial ownership interests in REMIC II issued hereunder
designated as a "regular interest" in REMIC II and identified individually as
REMIC II Regular Interests LA-1, LA-2, LB, LC, LD, LE, LF, LG, LH, LJ, LK, LL,
LM, LN and LO. Each REMIC II Regular Interest shall accrue interest at the
related REMIC II Remittance Rate in effect from time to time and shall be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto. The designations for
the respective REMIC II Regular Interests are set forth in the Preliminary
Statement hereto.
Each REMIC II Regular Interest corresponds to a Class of
Principal Balance Certificates and a Class X Component as follows:
REMIC II CLASS OF PRINCIPAL CLASS X
REGULAR INTEREST BALANCE CERTIFICATES COMPONENT
---------------- -------------------- ---------
Class LA-1 Class A-1 Class LA-1 Component
Class LA-2 Class A-2 Class LA-2 Component
47
Class LB Class B Class LB Component
Class LC Class C Class LC Component
Class LD Class D Class LD Component
Class LE Class E Class LE Component
Class LF Class F Class LF Component
Class LG Class G Class LG Component
Class LH Class H Class LH Component
Class LJ Class J Class LJ Component
Class LK Class K Class LK Component
Class LL Class L Class LL Component
Class LM Class M Class LM Component
Class LN Class N Class LN Component
Class LO Class O Class LO Component
"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.
48
"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 2000-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 3.18.
"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, including, without limitation, with
respect to the calculation of the Mortgage Rate in effect from time to
49
time (such terms and conditions to be applied without regard to the default on
such predecessor Mortgage 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 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 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 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 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.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"REO Status Report": A report or reports substantially in the
form of Exhibit H attached hereto setting forth, among other things, with
respect to each REO Property that was included in the Trust Fund as of the close
of business on the immediately preceding Determination Date, (i) the Acquisition
Date of such REO Property, (ii) the amount of income collected with respect to
such REO Property (net of related expenses) and other amounts, if any, received
on such REO Property during the Collection Period ending on such Determination
Date and (iii) the value of the REO Property based on the most recent Appraisal
or other valuation thereof available to the Master Servicer as of such date of
determination (including any valuation prepared internally by the Special
Servicer).
"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 3.19(d).
"Reserve Account": The account or accounts created and
maintained pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any cash
amounts or instruments convertible into cash delivered by the related Mortgagor
to be held in escrow by or on behalf of the mortgagee representing reserves for
items such as repairs, replacements, capital
50
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property.
"Residual Certificate": Any Class R-I, Class R-II or Class
R-III Certificate.
"Responsible Officer": When used with respect to the initial
Trustee, any officer of its Asset-Backed Securities Trust Services Group with
direct responsibility for the transaction contemplated by this Agreement and
with respect to any successor Trustee, any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any trust officer
or assistant trust officer, or any assistant controller in its corporate trust
department or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers to whom a
particular matter is referred by the Trustee because of such officer's knowledge
of and familiarity with the particular subject.
"Revised Rate": With respect to each ARD Loan, the increased
interest rate after the Anticipated Repayment Date (in the absence of a default)
for such ARD Loan, as calculated and as set forth in the related Mortgage Note
or Mortgage.
"Securities Act": The Securities Act of 1933, as amended.
"Securities Intermediary": Xxxxx Fargo Bank Minnesota, N.A.,
in its capacity as Securities Intermediary under this Agreement, its successor
in interest, or any successor securities intermediary appointed as herein
provided.
"Security Agreement": With respect to any Mortgage 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.
"Senior Certificate": Any Class X, Class A-1 or Class A-2
Certificate.
"Servicer Reports": The Delinquent Loan Status Report, the
Historical Loan Modification Report, the Historical Loss Report, the REO Status
Report, the Servicer Watch List, the NOI Adjustment Worksheet, the Comparative
Financial Status Report and the Operating Statement Analysis.
"Servicer Watch List": A report or reports setting forth,
among other things, certain Mortgage Loans (i) that have experienced a decrease
of at least 10% in debt service coverage from the previous reporting period
(unless the Master Servicer shall have reasonably determined that such decrease
is due to the seasonal nature or use of the related Mortgaged Property), (ii)
that have experienced a loss of or bankruptcy of the largest tenant (to the
extent the Servicer has actual knowledge of such loss or bankruptcy), (iii) that
are within six months of maturity, (iv) that are Specified Debt Service Reserve
Loans which have had their Monthly Payment paid out of a debt service reserve
for two consecutive Due Dates, or (v) that are Specified Letter of Credit Loans
or Specified Debt Service Reserve Loans as to which the conditions for release
of the related letter of credit or debt service reserve, as the case may be,
have been satisfied, provided that such Specified Letter of Credit Loans and
Specified Debt
51
Service Reserve Loans shall be included on the Servicer Watch List for the month
of such release and, at a minimum, the two months following such release.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses (including attorneys' fees and expenses and
fees of real estate brokers) incurred by the Master Servicer, the Special
Servicer or, if applicable, the Trustee in connection with the servicing and
administering of (a) a Mortgage Loan in respect of which a default, delinquency
or other unanticipated event has occurred or as to which a default is imminent
or (b) an REO Property, including, but not limited to, the cost of (i)
compliance with the obligations of the Master Servicer and/or the Special
Servicer set forth in Section 3.03(c) and 3.09(c), (ii) the preservation,
restoration and protection of a Mortgaged Property, (iii) obtaining any
Insurance Proceeds or any Liquidation Proceeds in respect of any Mortgage Loan
or REO Property, (iv) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including foreclosures, and (v) the operation, management,
maintenance and liquidation of any REO Property. All Emergency Advances made by
the Special Servicer hereunder shall be considered "Servicing Advances" for the
purposes hereof.
"Servicing Fee Rate": With respect to any Mortgage Loan, the
percentage rate per annum set forth with respect to such Mortgage Loan on the
Mortgage Asset Schedule. With respect to the Mortgage Certificate, the Servicing
Fee Rate shall be equal to the Trustee Fee Rate.
"Servicing Fees": With respect to any Distribution Date and
each Mortgage Loan and REO Loan, the fee payable to the Master Servicer pursuant
to Section 3.11(a).
"Servicing File": Any documents (other than documents required
to be part of the related Mortgage File), in the possession of the Master
Servicer or the Special Servicer and relating to the origination and servicing
of any Mortgage Loan.
"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, 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,
the occurrence of any of the events described in clauses (1) through (8) of the
definition of "Specially Serviced Mortgage Loan".
"Special Servicer": GMACCM, or any successor special servicer
appointed as herein provided.
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"Special Servicing Fee": With respect to each Specially
Serviced Mortgage Loan and REO Loan, the fee designated as such and payable to
the Special Servicer pursuant to Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and REO Loan, 0.250% per annum.
"Special Servicing Standby Fee": With respect to any
Distribution Date and each Mortgage Loan that is not a Specially Serviced
Mortgage Loan, the fee designated as such and payable to the Special Servicer
pursuant to Section 3.11(c).
"Special Servicing Standby Fee Rate": With respect to each
Mortgage Loan that is not a Specially Serviced Mortgage Loan, 0.005% per annum.
The Special Servicing Standby Fee Rate is included in the Servicing Fee Rate set
forth for each Mortgage Loan on the Mortgage Asset Schedule.
"Specially Serviced Mortgage Loan": Any Mortgage Loan (and
each related Cross-Collateralized Mortgage Loan) as to which any of the
following events has occurred:
(1) the related Mortgagor has failed to make when due any Balloon
Payment, which failure has continued unremedied for 30 days or, if the
Master Servicer has received evidence that the related Mortgagor has
obtained a firm commitment to refinance, which has continued unremedied
for more than 60 days; or
(2) the related Mortgagor has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment required
under the related Mortgage Note or the related Mortgage, which failure
continues unremedied for 60 days; or
(3) the Master Servicer has determined in its good faith and reasonable
judgment, that a default in the making of a Monthly Payment or any
other payment required under the related Mortgage Note or the related
Mortgage is likely to occur within 30 days and is likely to remain
unremedied for at least 60 days or, in the case of a Balloon Payment,
for at least 30 days; or
(4) there shall have occurred a default, other than as described in
clause (1) or (2) above, that materially impairs the value of the
related Mortgaged Property as security for the Mortgage Loan or
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, if no
grace period is specified, 60 days); or
(5) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar
law or the appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the related
Mortgagor and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
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(6) the related Mortgagor shall have consented to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to such Mortgagor or of or relating to all or
substantially all of its property; or
(7) the related Mortgagor shall have admitted in writing its inability
to pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made
an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations; or
(8) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related
Mortgaged Property;
provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan, when a Liquidation Event has occurred in respect of such Mortgage 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
to be characterized as a Specially Serviced Mortgage Loan (and provided that no
other Servicing Transfer Event then exists with respect to the particular
Mortgage Loan 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 (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 3.20);
(x) with respect to the circumstances described in clauses
(3), (5), (6) and (7) above, such circumstances cease to exist in the
good faith and reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (4)
above, such default is cured; and
(z) with respect to the circumstances described in clause (8)
above, such proceedings are terminated.
"Specified Debt Service Reserve Loans": The Mortgage Loans
identified on Schedule V.
"Specified Earnout Reserve Loans": The Mortgage Loans
identified on Schedule VII.
"Specified Letter of Credit Loans": The Mortgage Loans
identified on Schedule VI.
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"Standard & Poor's": Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Standard &
Poor's" shall be deemed to refer to such other nationally recognized statistical
rating agency or other comparable Person designated by the Depositor. Notice of
which designation shall be given to the Trustee, the Master Servicer and the
Special Servicer and specific ratings of Standard & Poor's herein referenced
shall be deemed to refer to the equivalent ratings of the party so designated.
"Startup Day": With respect to each of REMIC I, REMIC II and
REMIC III, the day designated as such in Section 10.01(b).
"Stated Maturity Date": With respect to any Mortgage Loan, 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 granted or agreed to by
the Master Servicer or Special Servicer pursuant to Section 3.20 or, in the case
of any ARD Loan, the Anticipated Repayment Date for such Mortgage Loan. With
respect to the Mortgage Certificate, the Due Date on which the last payment of
principal is due and payable under the terms of the Mortgage Certificate.
"Stated Principal Balance": With respect to any Mortgage Loan
(and any related REO Loan), the Cut-off Date Principal Balance of such Mortgage
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 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 related REO Loan) during the related Collection Period. Notwithstanding the
foregoing, if a Liquidation Event occurs in respect of any Mortgage Loan or REO
Property, then the "Stated Principal Balance" of such Mortgage 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. With respect to the Mortgage
Certificate, the principal balance of the Mortgage Certificate determined by
Xxxxxxx Mac in accordance with the Mortgage Certificate Documents.
"Strip Holder": Xxxxxxxx Xxxxx or any heir, successor or
assign with respect to the Broker Strip Amounts for loan number 09-0001336, and
Xxxxx & Xxxxx or any heir, successor or assign with respect to the Broker Strip
Amounts for loan number 09-0001362; provided, however, that if the agreement
which entitles the Strip Holder to receive the applicable Broker Strip is
terminated in either case, the applicable Strip Holder shall thereafter be the
party designated as such in writing by Xxxxxxx Sachs Mortgage Company to the
Master Servicer.
"Subordinated Certificate": Any Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O or Residual Certificate.
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"Sub-Servicer": Any Person with which the Master Servicer or
the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Master Servicer or the Special Servicer and any Sub-Servicer relating to
servicing and administration of Mortgage Loans as provided in Section 3.22.
"Substitution Shortfall Amount": In connection with the
substitution of one or more Replacement Mortgage Loans for one or more Deleted
Mortgage Loans, the amount, if any, by which the Purchase Price or aggregate
Purchase Price, as the case may be, for such Deleted Mortgage Loan(s) exceeds
the initial Stated Principal Balance or aggregate Stated Principal Balance, as
the case may be, of such Replacement Mortgage Loan(s).
"Supplemental Agreement": Each of (i) the Supplemental
Agreement dated as of August 8, 2000 between GMACCM and Xxxxxxx Xxxxx Mortgage
Company, (ii) the Supplemental Agreement dated as of August 8, 2000 between
GMACCM and German American Capital Corporation and (iii) the Supplemental
Agreement dated as of August 8, 2000 among GMACCM, Salomon Brothers Realty Corp.
and the Depositor, in each case, as amended, restated or otherwise supplemented
from time to time.
"Tax Returns": The federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I, REMIC II and REMIC III due to its
classification as a REMIC under the REMIC Provisions, and the federal income tax
return to be filed on behalf of the Grantor Trust due to its classification as a
grantor trust under the Grantor Trust Provisions, together with any and all
other information, reports or returns that may be required to be furnished to
the Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, or
Applicable State Law.
"Tenant": With respect to each Credit Lease Loan, the lessee
thereunder.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust Fund": Collectively, the Excess Interest and all of the
assets of REMIC I, REMIC II and REMIC III.
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"Trustee": Xxxxx Fargo Bank Minnesota, N.A., 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 Asset and REO Loan, an amount equal to one-twelfth of the product of
the Trustee Fee Rate and the aggregate Stated Principal Balance of such Mortgage
Asset or REO Loan immediately following the prior Distribution Date.
"Trustee Fee Rate": 0.0025%. The Trustee Fee Rate is included
in the Servicing Fee Rate set forth for each Mortgage Asset on the Mortgage
Asset 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
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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 Asset. On each Distribution Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall be reduced by all distributions of
principal deemed to have been made thereon on such Distribution Date pursuant to
Section 4.01(a) and, if and to the extent appropriate, shall be further reduced
on such Distribution Date as provided in Section 4.04(a). As of the Closing
Date, the Uncertificated Principal Balance of each REMIC II Regular Interest
shall equal the amount set forth in the Preliminary Statement hereto as its
initial Uncertificated Principal Balance. On each Distribution Date, the
Uncertificated Principal Balance of each such REMIC II Regular Interest shall be
reduced by all distributions of principal deemed to have been made thereon on
such Distribution Date pursuant to Section 4.01(b) and, if and to the extent
appropriate, shall be further reduced on such Distribution Date as provided in
Section 4.04(b).
"Underwriter": Each of Xxxxxxx, Sachs & Co. and Deutsche Bank
Securities Inc.
"Uninsured Cause": Any cause of damage to property subject to
a Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"United States Person": A citizen or resident of the United
States, a corporation or partnership (unless, in the case of a partnership,
Treasury regulations are adopted that provide otherwise) created or organized in
or under the laws of the United States, any State thereof or the District of
Columbia, including an entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
"USPAP": The Uniform Standards of Professional Appraisal
Practices.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 99% 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, and
1% of the Voting Rights shall be allocated among the Holders of the Class X
Certificates in proportion to the respective Class Notional Amount of such
Certificates. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates. Appraisal Reduction
Amounts will be allocated in reduction of the respective Certificate Balances of
the Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class G,
Class F, Class E, Class D, Class C, Class B and Class A Certificates (pro rata
between the Class A-1 and Class A-2 Certificates), in that order, for purposes
of calculating Voting Rights.
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"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the REMIC II Remittance Rate for each REMIC II Regular
Interest for such Determination Date.
"Withheld Amount": With respect to (a) each Interest Reserve
Loan and (b) each Distribution Date occurring in (i) January of each calendar
year that is not a leap year and (ii) February of each calendar year, an amount
equal to one day's interest at the related Mortgage Rate (less any Servicing Fee
payable therefrom) on the respective Stated Principal Balance as of the Due Date
in the month in which such Distribution Date occurs, to the extent that a
Monthly Payment or Delinquency Advance is made in respect thereof.
"Woodbury REMIC": The single-asset REMIC established with
respect to the mortgage loan identified on the Mortgage Asset Schedule as loan
number DMB7884, which REMIC was created by a REMIC Declaration made by German
American Capital Corporation, one of the Mortgage Loan Sellers, on July 31,
2000.
"Woodbury REMIC Asset": The REMIC regular interest in the
Woodbury REMIC, which regular interest was transferred and assigned by German
American Capital Corporation to the Depositor pursuant to the Mortgage Loan
Purchase Agreement between the Depositor and GMACCM.
"Woodbury REMIC Residual Interest": The REMIC residual
interest in the Woodbury REMIC, which residual interest was transferred and
assigned by German American Capital Corporation to the Depositor pursuant to the
Mortgage Loan Purchase Agreement between the Depositor and GMACCM.
"Workout Fee": With respect to each Corrected Mortgage Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
third paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage
Loan as to which a Workout Fee is payable, 1.00%.
SECTION 1.02 CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE
POOL AND THE MORTGAGE CERTIFICATE.
(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 in accordance with the express provisions of
the related loan documents and, in the absence of such express provisions, on a
pro rata basis in accordance with the respective amounts then "due and owing" as
to each such Mortgage Loan. All amounts collected in respect of any Mortgage
Loan (whether or not such Mortgage 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
59
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest at the related Mortgage
Rate on such Mortgage Loan 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 then
due and owing, including, without limitation, by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage 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; seventh, as a
recovery of any Penalty Charges then due and owing under such Mortgage Loan;
eighth, as a recovery of any other amounts (other than Excess Interest) then due
and owing under such Mortgage Loan; ninth, as a recovery of any remaining
principal of such Mortgage Loan to the extent of its entire remaining unpaid
principal balance; and tenth, if such Mortgage Loan is an ARD Loan, as a
recovery of any Excess Interest then due and owing on such Mortgage Loan.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be treated: first, as a
recovery of any related unreimbursed Servicing Advances; second, as a recovery
of accrued and unpaid interest on the related REO Loan at the related Mortgage
Rate to but not including the Due Date in the month of receipt; third, as a
recovery of principal of the related REO Loan to the extent of its entire unpaid
principal balance; and fourth, as a recovery of any other amounts deemed to be
due and owing in respect of the related REO Loan.
(c) The applications of amounts received in respect of any
Mortgage Loan or REO Property pursuant to paragraphs (a) and (b) of this Section
1.02 shall be determined by the Master Servicer in its good faith judgment.
(d) All calculations with respect to scheduled distributions
on the Mortgage Certificate shall be made on the basis of the "pool factors"
published by FHLMC on its internet website, or otherwise made available to the
Trustee with respect to the Mortgage Certificate, in accordance with the
Mortgage Certificate Documents. To the extent they are not patently incorrect on
their face, such information or accountings may be conclusively relied upon in
making such calculations.
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ARTICLE II
CONVEYANCE OF MORTGAGE ASSETS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 ESTABLISHMENT OF TRUST; CONVEYANCE OF MORTGAGE
LOANS AND MORTGAGE CERTIFICATE.
(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 Asset Schedule, (ii)
Sections 2, 4(a), 6 and 13 of each Mortgage Loan Purchase Agreement and Sections
2, 4 and 6 of each Supplemental Agreement, (iii) the Mortgage Certificate, all
payments and distributions received or receivable thereunder and all accounts,
general intangibles, chattel paper, instruments, documents, money, deposit
accounts and investment property consisting of, arising from or relating to the
Mortgage Certificate or the Mortgage Certificate Securities Account and all
moneys, instruments, financial assets and other property credited thereto, (iv)
the Mortgage Certificate Assignment Agreement and (v) 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 and
the Mortgage Certificate (other than payments of principal and interest due and
payable on the Mortgage Loans or the Mortgage Certificate on or before the
Cut-off Date). The transfer of the Mortgage Loans and the Mortgage Certificate
and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be
delivered to and deposited with, the Trustee or the Custodian (with a copy to
the Master Servicer), on or before the Closing Date, the Mortgage File for each
of such Mortgage Loan Seller's Mortgage Loans so assigned. If the related
Mortgage Loan Seller cannot deliver, or cause to be delivered as to any Mortgage
Loan, the original Mortgage Note, the Mortgage Loan Seller shall deliver a copy
or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed. If the related
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(2), (4), (11) and (12) of the definition of "Mortgage File", with evidence of
recording or filing, as the case may be, thereon, because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, or because such original recorded document
has been lost or returned from the recording or filing office and subsequently
lost, as the case may be, the delivery requirements of the related Mortgage Loan
Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied as to such missing document or instrument, and such missing document
or instrument shall be deemed to have been included in
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the Mortgage File, provided that a photocopy of such missing document or
instrument (certified by the related Mortgage Loan Seller to be a true and
complete copy of the original thereof submitted for recording or filing, as the
case may be) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date and either the original of such missing document or
instrument, or a copy thereof, with evidence of recording or filing, as the case
may be, thereon, is delivered to or at the direction of the Trustee within 180
days of the Closing Date (or within such longer period after the Closing Date as
the Trustee may consent to, which consent shall not be unreasonably withheld so
long as the related Mortgage Loan Seller has provided the Trustee with evidence
of such recording or filing, as the case may be, or has certified to the Trustee
as to the occurrence of such recording or filing, as the case may be, and is, as
certified to the Trustee no less often than quarterly, in good faith attempting
to obtain from the appropriate county recorder's or filing office such original
or copy). Upon request, the Trustee shall provide a copy of any such
certification, promptly after receipt thereof, to any Certificate Owner holding
a Certificate in the Controlling Class that has provided a certification to the
Trustee in the form attached hereto as Exhibit K. If the related Mortgage Loan
Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of the related lender's title insurance policy referred to in
clause (9) of the definition of "Mortgage File" solely because such policy has
not yet been issued, the delivery requirements of this Section 2.01(b) shall be
deemed to be satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that the
related Mortgage Loan Seller shall have delivered to the Trustee or a Custodian
appointed thereby, on or before the Closing Date, a commitment for title
insurance "marked-up" at the closing of such Mortgage Loan, and the related
Mortgage Loan Seller shall deliver to the Trustee or such Custodian, promptly
following the receipt thereof, the original related lender's title insurance
policy (or a copy thereof). In addition, notwithstanding anything to the
contrary contained herein, if there exists with respect to any group of related
Cross-Collateralized Mortgage Loans only one original of any document referred
to in the 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", or 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 Trustee shall be responsible for promptly (and in any
event within 45 days of the Closing Date) completing the related endorsement or
assignment in the name of the Trustee (in such capacity) and in any event prior
to releasing possession thereof.
(c) Except under the circumstances provided for in the last
sentence of this subsection (c), the Trustee shall, as to each Mortgage Loan, at
the expense of the related Mortgage Loan Seller, promptly (and in any event
within 45 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
62
in clause (11)(B) of the definition of "Mortgage File"; provided, however, that
each Mortgage Loan Seller shall have the right to direct the Trustee, in
writing, to cause the aforementioned recording and filing requirements to be
completed (within the specified time period) by a Person other than the Trustee,
in which case the Trustee shall (i) promptly deliver the referenced documents to
such Person for recording and filing and (ii) notify the related Mortgage Loan
Seller with respect to each Mortgage Loan for which the related assignment or
file copy of any UCC-2 and UCC-3 has not been received within the time period
specified in Section 2.02(b). Each such assignment shall reflect that it should
be returned by the public recording office to the Trustee or its designee
following recording, and each such UCC-2 and UCC-3 shall reflect that the file
copy thereof should be returned to the Trustee or its designee following filing.
Promptly following receipt, the Trustee shall, at the expense of the respective
Mortgage Loan Seller, deliver a copy of any such document or instrument to the
Master Servicer. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Trustee shall direct the related 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, and thereafter the
Trustee shall upon receipt thereof cause the same to be duly recorded or filed,
as appropriate.
(d) All documents and records in the Depositor's or any
Mortgage Loan Seller's possession relating to the Mortgage Loans that are not
required to be a part of a Mortgage File in accordance with the definition
thereof shall be delivered to the Master Servicer on or before the Closing Date
and shall be held by the Master Servicer (or a Sub-Servicer retained thereby) on
behalf of the Trustee in trust for the benefit of the Certificateholders. If the
Sub-Servicer shall hold any original documents and records delivered to it
pursuant to this clause (d) then the Sub-Servicer shall deliver copies thereof
to the Master Servicer.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Master Servicer, on or
before the Closing Date, a fully executed original counterpart of each Mortgage
Loan Purchase Agreement, each Supplemental Agreement and the Mortgage
Certificate Assignment Agreement, as in full force and effect, without amendment
or modification, on the Closing Date.
(f) In connection with the Depositor's assignment pursuant to
subsection (a), the Depositor shall deliver the Mortgage Certificate to the
Securities Intermediary by causing FHLMC to deposit the Mortgage Certificate in
the Federal Reserve Bank account of the Securities Intermediary and by causing
the Securities Intermediary to indicate by book entry that the "security
entitlement" (as defined in Article 8 of the UCC) with respect to the Mortgage
Certificate has been credited to the Mortgage Certificate Securities Account and
by such additional or alternative procedures as may hereafter become appropriate
to grant a perfected security interest in the Mortgage Certificate to the
Trustee, consistent with changes in applicable law or regulations or the
interpretation thereof. The Trustee shall make appropriate notations on its
records, and shall cause the same to be made on the records of its nominees, if
any, indicating that the Mortgage Certificate is held for the benefit of the
Certificateholders as provided herein.
The Depositor shall also deliver copies of the Mortgage
Certificate Documents to the Trustee on or before the Closing Date.
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Effective upon delivery of the Mortgage Certificate pursuant
to this Section 2.01(f), the Trustee shall be deemed to have represented that
its purchase (as defined in Section 1-201(32) of the UCC) of the Mortgage
Certificate is made for value, in good faith, and without notice of any adverse
claim known to a Responsible Officer of the Trustee; provided, however, that
such representation shall not impose any other affirmative duty or obligation
upon the Trustee with regard to value or inquiry or investigation of, or
constructive notice of, adverse claims existing at the time of such delivery.
Nothing in this Section 2.01(f) shall be deemed to impose or
imply an affirmative obligation on the part of the Trustee (or Securities
Intermediary) to determine whether any alternative or additional procedures for
perfection of security interests pursuant to changes in applicable law or
regulation or interpretation thereof may be necessary or appropriate and the
Trustee (or Securities Intermediary) shall not be deemed to have knowledge of
same unless and to the extent otherwise reflected in an Opinion of Counsel
delivered to the Trustee.
(g) In addition to the Depositor's assignment pursuant to
subsection (a), the Depositor, concurrently with the execution and delivery
hereof, hereby assigns to the Trustee without recourse all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in, to and under the Bladensburg REMIC Residual
Interest, the Corners REMIC Residual Interest and the Woodbury REMIC Residual
Interest, and the Trustee shall hold such REMIC Residual Interests on behalf of
the Certificateholder of the Class R-I Certificates. Notwithstanding anything
contained herein, such REMIC Residual Interests shall not be an asset of, or an
interest in, any of REMIC I, REMIC II or REMIC III.
SECTION 2.02 ACCEPTANCE BY TRUSTEE.
(a) The Trustee, by the execution and delivery of this
Agreement, hereby certifies receipt by it or a Custodian on its behalf, subject
to the provisions of Section 2.01 and the further review provided for in this
Section 2.02, and further subject to any exceptions noted on any exception
report prepared by the Trustee or such Custodian and attached hereto as Schedule
II, of the documents specified in clauses (1), (2), (3), (9) and (12) of the
definition of "Mortgage File" of a fully executed original counterpart of each
Mortgage Loan Purchase Agreement and of all other assets included in REMIC I and
delivered to it, in good faith and without notice of any adverse claim, and
declares that it or a Custodian on its behalf holds and will hold such documents
and the other documents delivered or caused to be delivered by the Mortgage Loan
Sellers constituting the Mortgage Files, and that it holds and will hold such
other assets included in REMIC I, in trust for the exclusive use and benefit of
all present and future Certificateholders. In connection with the foregoing, the
Trustee hereby certifies, subject to any exceptions noted on any exception
report prepared by the Trustee or the Custodian and attached hereto as Schedule
II, as to each Mortgage Note, that it (A) appears regular on its face
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appears to have been executed
(where appropriate) and (C) purports to relate to such Mortgage Loan.
(b) Within 60 days of the Closing Date, the Trustee or a
Custodian on its behalf shall review each of the Mortgage Loan documents
delivered or caused to be delivered by the Mortgage Loan Sellers constituting
the Mortgage Files; and, promptly following such review, the Trustee shall
certify in writing in the form attached hereto as Schedule III to each of the
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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 Asset
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in any exception report annexed thereto as not being
covered by such certification), (i) all documents specified in clauses (1)
through (5), (9), (11) 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 documents
delivered or caused to be delivered by the related Mortgage Loan Seller
constituting the related Mortgage File have been reviewed by it or by a
Custodian on its behalf and (A) appear regular on their face and relate to such
Mortgage Loan, (B) appear to have been executed (where appropriate) and (C)
purport to relate to such Mortgage Loan. If the Trustee's certification pursuant
to the preceding sentence includes an exception report, or if such certification
indicates that any recording or filing required by Section 2.01(c) has not been
completed with respect to a Mortgage Loan, the Trustee or a Custodian on its
behalf shall continuously update such exception report to reflect receipt of any
additional documents or instruments or evidence of recording or filing of such
additional documents or instruments with respect to such Mortgage Loan, until
the earliest of (i) the date on which such exceptions are eliminated and any
such recording or filing has been completed, (ii) the date on which the affected
Mortgage Loan has been removed from the Trust Fund, and (iii) the date which is
two years after the Closing Date, and shall provide such updated exception
report (beginning 150 days after the Closing Date and continuing every 90 days
thereafter until the date which is two years after the Closing Date) to each of
the Depositor, the Master Servicer, the Special Servicer, the Majority
Certificateholder of the Controlling Class and, upon request, any
Certificateholder. At any time after the date which is two years after the
Closing Date, the Depositor, the Master Servicer, the Special Servicer and any
Certificateholder may receive, upon request, an updated exception report.
(c) The Trustee or a Custodian on its behalf shall review each
of the Mortgage Loan documents received thereby subsequent to the Closing Date;
and, on or about the first anniversary of the Closing Date, the Trustee shall
certify in writing in the form attached hereto as Schedule III to each of the
Depositor, the Master Servicer, the Special Servicer, the Majority
Certificateholder of the Controlling Class and each Mortgage Loan Seller that,
as to each Mortgage Loan listed on the Mortgage Asset 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) 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), (ii) it or a Custodian on its behalf has received either a
recorded original of each of the assignments specified in clauses (3) and,
insofar as an unrecorded original thereof had been delivered or caused to be
delivered by the related Mortgage Loan Seller, (5) of the definition of
"Mortgage File" or a copy of such recorded original certified by the applicable
public recording office 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,
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(B) appear to have been executed (where appropriate) and (C) purport to relate
to such Mortgage Loan.
(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), (13), (14), (15), (16) and
(17) 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.
(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
Asset Schedule, or to be defective on its face (each, a "Defect" in the related
Mortgage File) the Trustee (or such other party) shall promptly so notify each
of the other parties hereto and the related Mortgage Loan Seller. If and when
notified of any error in the Mortgage Asset Schedule, the Depositor shall
promptly correct such error and distribute a new, corrected Mortgage Asset
Schedule to each of the other parties hereto, and upon receipt by the Trustee of
such a corrected Mortgage Asset Schedule so identified, such new, corrected
Mortgage Asset Schedule shall be deemed to amend and replace the existing
Mortgage Asset Schedule for all purposes.
SECTION 2.03 MORTGAGE LOAN SELLERS' REPURCHASE OF MORTGAGE
LOANS FOR DEFECTS IN MORTGAGE FILES AND BREACHES OF REPRESENTATIONS AND
WARRANTIES.
(a) If the Trustee discovers or receives notice of a Defect in
any Mortgage File or a breach of any representation or warranty set forth in or
made pursuant to Section 4(a) of each Mortgage Loan Purchase Agreement or
Section 2(a) of each Supplemental Agreement (a "Breach"), which Defect or
Breach, as the case may be, materially and adversely affects the value of any
Mortgage Loan or the interests of the Certificateholders therein, or if the
Trustee discovers or receives notice of any event that would give rise to the
repurchase of a Mortgage Loan pursuant to Section 6(b) of any Mortgage Loan
Purchase Agreement or Section 4(b) of each Supplemental Agreement, the Trustee
shall give prompt written notice of such Defect, Breach or event, as the case
may be, to the Depositor, the Master Servicer, the Special Servicer and the
Rating Agencies and the related Mortgage Loan Seller (and GMACCM, in the case of
such a Defect, Breach or event under a Supplemental Agreement) and shall request
that the related Mortgage Loan Seller (or GMACCM, in the case of such a Defect,
Breach or event under the Supplemental Agreement), within the time period
provided for in the related Mortgage Loan Purchase Agreement or Supplemental
Agreement, as applicable, cure such Defect, Breach or event, as the case may be,
in all material respects or repurchase the affected Mortgage Loan at the
applicable Purchase Price in conformity with the related Mortgage Loan Purchase
Agreement or Supplemental Agreement, as applicable; provided, however, that in
lieu of effecting any such repurchase, a Mortgage Loan Seller (or GMACCM, in the
case of such a Defect, Breach or event under the Supplemental Agreement) will be
permitted to deliver a Qualifying Substitute
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Mortgage Loan until the second anniversary of the Closing Date and to pay a cash
amount equal to the applicable Substitution Shortfall Amount, subject to the
terms and conditions of the related Mortgage Loan Purchase Agreement or
Supplemental Agreement, as applicable, and this Agreement; provided, further,
that if such Defect or Breach would cause the Mortgage Loan to be other than a
"qualified mortgage" under Section 860G(a)(3) of the Code, such Defect or Breach
shall be cured or the related Mortgage Loan shall be repurchased or replaced
with a Qualifying Substitute Mortgage Loan within 60 days of discovery. In the
case of any Breach, Defect or event with respect to a Cross-Collateralized
Mortgage Loan that requires repurchase of such Mortgage Loan pursuant to the
immediately preceding sentence, the Trustee shall request the Master Servicer
and the related Mortgage Loan Seller to release the cross-collateralization
provisions of the applicable Cross-Collateralized Mortgage Loans to the extent
required to permit the Mortgage Loan(s) affected by such Breach or Defect to be
repurchased from the Trust Fund without repurchasing the related
Cross-Collateralized Mortgage Loans. If such release and repurchase cannot be
completed within the time period provided for repurchase in the applicable
Mortgage Loan Purchase Agreement or specified above, the Trustee shall request
that the related Mortgage Loan Seller repurchase the affected Mortgage Loan and
all of the related Cross-Collateralized Mortgage Loans not so released.
Unless the applicable delivery requirements are otherwise
deemed to have been satisfied pursuant to Section 2.01(b) (including by virtue
of the delivery of alternative documents as specified in Section 2.01(b)), any
of the following Defects shall be conclusively presumed materially and adversely
to affect the interests of Certificateholders in, and the value of, a Mortgage
Loan: (a) the absence from the Mortgage File of the original signed Mortgage
Note, unless the Mortgage File contains a signed lost note affidavit that
appears to be regular on its face; (b) the absence from the Mortgage File of the
original signed Mortgage that appears to be regular on its face, unless there is
included in the Mortgage File a certified copy of the Mortgage and a certificate
stating that the original signed Mortgage and any intervening assignments
required to create a complete chain of assignment to the Trustee were sent for
recordation; or (c) the absence from the Mortgage File of the item called for by
paragraph (9) of the definition of Mortgage File. If any of the foregoing
Defects (each, a "Material Document Defect") is discovered by the Trustee, the
Trustee will take the steps described elsewhere in this section.
As to any Qualifying Substitute Mortgage Loan or Loans, the
Trustee shall direct the related Mortgage Loan Seller (or GMACCM, in the case of
such a Defect, Breach or event under the Supplemental Agreement) to deliver to
the Trustee for such Qualifying Substitute Mortgage Loan or Loans (with a copy
to the Master Servicer), the related Mortgage File(s) with the related Mortgage
Note(s) endorsed as required by clause (1) of the definition of "Mortgage File".
No substitution may be made in any calendar month after the Determination Date
for such month. Monthly Payments due with respect to Qualifying Substitute
Mortgage Loans in the month of substitution shall not be part of the Trust Fund
and will be retained by Master Servicer and remitted by the Master Servicer to
the related Mortgage Loan Seller (or GMACCM, in the case of such a Defect,
Breach or event under the Supplemental Agreement) on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the Monthly Payment due on the related Deleted
Mortgage Loan for such month and thereafter the related Mortgage Loan Seller (or
GMACCM, in the case of such a Defect, Breach or event under the Supplemental
Agreement) shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan.
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In any month in which the related Mortgage Loan Seller (or
GMACCM under a 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 Distribution Account concurrently
with the delivery of the Mortgage File(s) for the Qualifying Substitute Mortgage
Loan(s), without any reimbursement thereof. The Trustee shall also direct the
related Mortgage Loan Seller (or GMACCM, as applicable) to give written notice
to the Trustee and the Master Servicer of such deposit, accompanied by an
Officers' Certificate as to the calculation of the applicable Substitution
Shortfall Amount. The Trustee shall direct the related Mortgage Loan Seller (or
GMACCM, as applicable) to amend the Mortgage Asset Schedule to reflect the
removal of each Deleted Mortgage Loan and, if applicable, the substitution of
the Qualifying Substitute Mortgage Loan(s); and, upon such amendment, the
Trustee shall deliver or cause the delivery of such amended Mortgage Asset
Schedule to the other parties hereto. Upon any such substitution, the Qualifying
Substitute Mortgage Loan(s) shall be subject to the terms of this Agreement in
all respects.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.03, the Trustee, the Master
Servicer and the Special Servicer shall each tender promptly to the related
Mortgage Loan Seller (or GMACCM, as applicable), upon delivery to each of the
Trustee, the Master Servicer and the Special Servicer of a trust receipt
executed by the related Mortgage Loan Seller (or GMACCM, as applicable), all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and each document that constitutes a part of the related
Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or
assigned, as the case may be, to the related Mortgage Loan Seller (or GMACCM, as
applicable) in the same manner as provided in Section 2 of each Mortgage Loan
Purchase Agreement. Additionally, in connection with any repurchase of or
substitution for a Mortgage Loan pursuant to this Section 2.03, the Master
Servicer shall release or cause to be released to the related Mortgage Loan
Seller (or GMACCM, as applicable) any Reserve Funds or Escrow Payments with
respect to the related Mortgage Loan. If the affected Mortgage Loan is to be
repurchased, the Trustee shall designate the Certificate Account as the account
to which funds in the amount of the Purchase Price are to be wired.
(c) Section 6 of the related Mortgage Loan Purchase Agreement
and Section 4 of each Supplemental Agreement provides the sole remedy available
to the Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Defect in a Mortgage File or any Breach of any representation or
warranty set forth in or required to be made pursuant to Section 4(a) of such
Mortgage Loan Purchase Agreement or Section 2(a) of such Supplemental Agreement
or any of the circumstances described in Section 6(b) of such Mortgage Loan
Purchase Agreement or in Section 4(b) of such Supplemental Agreement.
(d) The Trustee shall, for the benefit of the
Certificateholders, enforce the obligations of each Mortgage Loan Seller under
Section 6 of the related Mortgage Loan Purchase Agreement and the obligations of
GMACCM under Section 4 of each Supplemental Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, shall be carried
out in such form, to such extent and at such time as the Trustee would require
were it, in its individual capacity, the owner of the affected Mortgage Loan(s).
The Trustee shall be
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reimbursed for the reasonable costs of such enforcement, together with interest
thereon at the Reimbursement Rate: first, from a specific recovery of costs,
expenses or attorneys' fees against the related Mortgage Loan Seller (or GMACCM,
in the case of enforcement under a 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.
SECTION 2.04 ISSUANCE OF CLASS R-I CERTIFICATES; CREATION OF
REMIC I REGULAR INTERESTS.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder and the
Trustee has executed, and caused the Certificate Registrar to authenticate and
deliver, to or upon the order of the Depositor, the Class R-I Certificates in
authorized denominations. The interests evidenced by the Class R-I Certificates,
together with the REMIC I Regular Interests, constitute the entire beneficial
ownership of REMIC I. The rights of the Class R-I Certificateholders and REMIC
II to receive distributions from the proceeds of REMIC I in respect of the Class
R-I Certificates and the REMIC I Regular Interests, respectively, and all
ownership interests of the Class R-I Certificateholders and REMIC II in and to
such distributions, shall be as set forth in this Agreement.
SECTION 2.05 CONVEYANCE OF REMIC I REGULAR INTERESTS;
ACCEPTANCE OF REMIC II BY THE TRUSTEE.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Class R-II Certificateholders
and REMIC III as holder of the REMIC II Regular Interests. The Trustee
acknowledges the assignment to it of the REMIC I Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future Class R-II Certificateholders and REMIC III as the
holder of the REMIC II Regular Interests.
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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 that it is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee and in the best
interests of and for the benefit of the Certificateholders (as determined by the
Master Servicer or the Special Servicer, as the case may be, in its good faith
and reasonable judgment), in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans and, to the extent
consistent with
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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 or, if a Mortgage 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) on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders 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 by the Master Servicer or the
Special Servicer, as the case may be, or by any Affiliate thereof, (C) the
Master Servicer's obligation to make Advances, (D) the Special Servicer's
obligation to make (or to direct the Master Servicer to make) Servicing
Advances, (E) the right of the Master Servicer (or any Affiliate thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction and (F) the obligation
of GMACCM, as a Mortgage Loan Seller, to repurchase Mortgage Loans pursuant to
Section 6(b) of the Mortgage Loan Purchase Agreement or Section 4(b) of each
Supplemental Agreement (the conditions set forth in the immediately foregoing
clauses (i), (ii) and (iii), the "Servicing Standard"). Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, in connection with its servicing and administrative
duties hereunder is hereby authorized and empowered by the Trustee to exercise
efforts consistent with the foregoing standard and to execute and deliver, on
behalf of the Certificateholders and the Trustee or any of them, any and all
financing statements, continuation statements and other documents or instruments
necessary to maintain the lien created by any Mortgage or other security
document in the related Mortgage File on the related Mortgaged Property and
related collateral; subject to Section 3.20, any and all modifications, waivers,
amendments or consents to or with respect to any documents contained in the
related Mortgage File; and any and all instruments of satisfaction or
cancellation, or of full release or discharge, and all other comparable
instruments, with respect to the Mortgage Loans and the Mortgaged Properties.
Each of the Master Servicer and the Special Servicer is also authorized to
approve a request by a Mortgagor under a Mortgage Loan that it is obligated to
service and administer pursuant to this Agreement, for an easement, consent to
alteration or demolition, and for other similar matters, provided that the
Master Servicer or the Special Servicer, as the case may be, determines,
exercising its good faith business judgment and in accordance with the Servicing
Standard, that such approval will not affect the security for, or the timely and
full collectability of, the related Mortgage Loan. 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 misuse of, any such power of attorney by the
Master Servicer or the Special Servicer, as the case may be; and further
provided that neither the Master Servicer nor the Special Servicer,
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without the Trustee's written consent, shall initiate any action in the
Trustee's name 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), the Master Servicer and the
Special Servicer each shall have full power and authority, acting alone or,
subject to Section 3.22, 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 both capacities, to
each other under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
Unless the same Person acts in both capacities, the Master Servicer shall have
no responsibility for the performance by the Special Servicer of its duties
under this Agreement, and the Special Servicer shall have no responsibility for
the performance of the Master Servicer under this Agreement.
(d) Subject to Section 3.01(a), each of the Master Servicer
and Special Servicer shall service and administer each Mortgage Loan that is a
Cross-Collateralized Mortgage Loan as a single Mortgage Loan as and when it
deems such treatment necessary and appropriate.
SECTION 3.02 COLLECTION OF MORTGAGE LOAN PAYMENTS.
The Master Servicer (or the Special Servicer with respect to
the Specially Serviced Mortgage Loans) shall make reasonable efforts to collect
all payments called for under the terms and provisions of the Mortgage Loans,
and shall, to the extent such procedures shall be consistent with this Agreement
and the terms and conditions of the Mortgage 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. 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 (other than a Specially Serviced Mortgage Loan) and
the Special Servicer may in its discretion waive any Penalty Charge in
connection with any delinquent payment on a Specially Serviced Mortgage Loan.
SECTION 3.03 COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR
ITEMS; SERVICING ACCOUNTS AND RESERVE ACCOUNTS.
(a) Each of the Master Servicer (or the Special Servicer with
respect to the Specially Serviced Mortgage Loans) shall establish and maintain
one or more accounts (the "Servicing Accounts"), into which all Escrow Payments
shall be deposited and retained. Servicing Accounts shall be Eligible Accounts.
Withdrawals of amounts so collected in respect of any Mortgage Loan (and
interest earned thereon) from a Servicing Account may be made only to: (i)
effect payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items in respect of the related Mortgaged
Property; (ii) reimburse the Trustee, the Master Servicer and the Special
Servicer, in that order, as applicable, for any unreimbursed Servicing Advances
made thereby to cover any of the items described in the
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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. The Servicing Accounts shall not be
considered part of the segregated pool of assets constituting REMIC I, REMIC II,
REMIC III or the Grantor Trust.
(b) Each of the Master Servicer (with respect to Mortgage
Loans other than Specially Serviced Mortgage Loans) and the Special Servicer
(with respect to the Specially Serviced Mortgage Loans) shall (i) maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of real estate taxes, assessments and other similar items that are or may
become a lien thereon and the status of insurance premiums and any ground rents
payable in respect thereof, and (ii) use reasonable efforts to obtain, from time
to time, all bills for the payment of such items (including renewal premiums)
for Mortgage Loans which require the related Mortgagor to escrow for the payment
of such items and 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. To the extent that a Mortgage Loan does
not require a Mortgagor to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
the Master Servicer (or the Special Servicer with respect to the Specially
Serviced Mortgaged Loans) shall use reasonable efforts consistent with the
Servicing Standard to cause the related Mortgagor to comply with the
requirements of the related Mortgage for payments in respect of such items at
the time they first become due.
(c) In accordance with the Servicing Standard, the Master
Servicer (at the direction of the Special Servicer in the case of Specially
Serviced Mortgage Loans) shall advance with respect to each related Mortgaged
Property all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items that are
or may become a lien thereon, (ii) ground rents (if applicable), and (iii)
premiums on Insurance Policies, in each instance if and to the extent Escrow
Payments collected from the related Mortgagor are insufficient to pay such item
when due and the related Mortgagor has failed to pay such item on a timely
basis, and provided that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance. All such Servicing Advances shall be
reimbursable in the first instance from related collections from the Mortgagors,
and further as provided in Section 3.05. No costs incurred by the Master
Servicer or the Special Servicer in effecting the payment of real estate taxes,
assessments, ground rents (if applicable) and other similar items on or in
respect of the Mortgaged Properties shall, for purposes hereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to the unpaid principal balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit.
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(d) The Master Servicer (or the Special Servicer with respect
to Specially Serviced Mortgage Loans) shall, establish and maintain, as
applicable, one or more accounts (the "Reserve Accounts"), into which all
Reserve Funds, if any, shall be deposited and retained. Withdrawals of amounts
so deposited may be made to pay for, or to reimburse the related Mortgagor in
connection with, the related repairs, environmental remediation, replacements
and/or capital improvements at the related Mortgaged Property if such repairs,
environmental remediation, replacements and/or capital improvements have been
completed, and such withdrawals are made, in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any agreement
with the related Mortgagor governing such Reserve Funds. Subject to the terms of
the related Mortgage Note and Mortgage, all Reserve Accounts shall be Eligible
Accounts. As part of its servicing duties, the Master Servicer and the Special
Servicer shall pay or cause to be paid to the Mortgagors interest on funds in
the Reserve Accounts maintained thereby, to the extent required by 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 AND
INTEREST RESERVE ACCOUNT.
(a) The Master Servicer shall establish and maintain a
Certificate Account in which the Master Servicer shall deposit or cause to be
deposited on a daily basis, except as otherwise specifically provided herein,
the following payments and collections received or made by or on behalf of it
subsequent to the Cut-off Date (other than in respect of principal and interest
on the Mortgage Loans due and payable on or before the Cut-off Date), and
payments (other than Principal Prepayments) received by it on or prior to the
Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (including, without
limitation, Default Interest and Excess Interest) on the Mortgage
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 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 or REO Property (other than Excess
Liquidation Proceeds and Liquidation Proceeds that are received in
connection with the Master Servicer's or the Depositor's purchase of
all the Mortgage Loans and any REO Properties in the Trust Fund and
that are to be deposited in the Distribution Account pursuant to
Section 9.01);
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(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds relating to the Trust
Fund held in the Certificate Account;
(vi) that portion of each Delinquency Advance that represents
(without duplication) the Servicing Fee and, if applicable, the Special
Servicing Fee; and
(vii) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a blanket
hazard policy.
The foregoing requirements for deposit in the Certificate
Account shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, actual payments from Mortgagors in the
nature of Escrow Payments, Reserve Funds, charges for beneficiary statements or
demands, assumption fees, amounts collected for mortgagor checks returned for
insufficient funds, ancillary fees and any other amounts that the Master
Servicer and the Special Servicer are entitled to as additional servicing
compensation pursuant to Section 3.11 need not be deposited by the Master
Servicer in the Certificate Account. If the Master Servicer shall deposit in the
Certificate Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Certificate Account, any provision herein
to the contrary notwithstanding. In accordance with Section 3.11(d), the Master
Servicer shall promptly deliver to the Special Servicer, as additional servicing
compensation, (i) all assumption fees, modification fees, ancillary fees and
other transaction fees due to and received by the Master Servicer with respect
to the Specially Serviced Mortgage Loans and (ii) fifty percent (50%) of all
assumption fees and earnout fees due to and received by the Master Servicer with
respect to the Mortgage Loans that are not Specially Serviced Mortgage Loans.
The Certificate Account shall be maintained as a segregated account, separate
and apart from trust funds created for mortgage pass-through certificates of
other series serviced and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i),
(ii) and (iv) above with respect to any Mortgage Loan which is not an REO Loan,
the Special Servicer shall promptly, but in no event later than two Business
Days after receipt, remit such amounts to the Master Servicer for deposit into
the Certificate Account in accordance with the second preceding paragraph,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item should not be deposited because of a restrictive
endorsement or other appropriate reason. Any such amounts received by the
Special Servicer with respect to an REO Property shall be deposited by the
Special Servicer into the REO Account and remitted to the Master Servicer for
deposit into the Certificate Account pursuant to Section 3.16 (c). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse such check to the order of the Master Servicer
and shall deliver promptly, but in no event later than two Business Days after
receipt, any such check to the Master Servicer by overnight courier, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item cannot be so endorsed and delivered because of a restrictive
endorsement or other appropriate reason.
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Funds in the Certificate Account may 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 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 Securities Intermediary may demand payment of, and shall
receive, collect and cause to be deposited in the Mortgage Certificate
Securities Account, directly and without intervention or assistance of any
fiscal agent or other intermediary, all payments due under the Mortgage
Certificate. The Trustee shall deposit in the Distribution Account all amounts
withdrawn from the Mortgage Certificate Securities Account pursuant to Section
3.26, except to the extent the Trustee shall be entitled to reimburse itself
from such amounts for any advances made by the Trustee pursuant to the
immediately succeeding paragraph. In the event that the Securities Intermediary
has not received payment on the Mortgage Certificate by the applicable Due Date,
the Securities Intermediary shall promptly notify FHLMC of the failure to
receive such payment. The Securities Intermediary shall request that FHLMC wire
such payments in immediately available funds to the Securities Intermediary, or
take such other action as the Securities Intermediary shall determine in
accordance with the procedures of FHLMC then in effect.
To the extent that payments due under the Mortgage Certificate
are not received by the Securities Intermediary prior to 11:00 a.m., New York
City time, on any Distribution Date, the Trustee, unless it shall determine in
its sole discretion that such advance, if made, would constitute a
nonrecoverable advance, shall advance the amount of such payment for purposes of
making the required payments to Certificateholders pursuant to Article IV of
this Agreement. Upon making such advance, the Trustee shall be entitled to
reimbursement for the amount of the advance from the payments due under the
Mortgage Certificate when such payments are actually received. If the Trustee
does advance funds on any Distribution Date, it shall do so based on its
calculation pursuant to Section 4.02(f) of the amount of funds expected to be
received with respect to payments due on the Mortgage Certificate in connection
with the related Distribution Date. If on any day after the date upon which it
has made an advance pursuant to this paragraph the Trustee determines in its
sole discretion that such advance is nonrecoverable, the Trustee shall be
entitled to (i) direct the Securities Intermediary to enforce the obligations of
FHLMC under the Mortgage Certificate, including declaring a default thereunder
in accordance with Section 3.26 hereof and the Mortgage Certificate Documents,
(ii) receive interest on such advance, which interest shall accrue from and
including the date on which the advance was made, payable from the Trust Fund at
the Reimbursement Rate and (iii) receive the principal amount of such advance
payable from the Trust Fund.
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 clause (a)(v), (b)(iii), (b)(iv) or
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(b)(vi) of the definition thereof) for the related Distribution Date then on
deposit in the Certificate Account and the Trustee Fee collected with respect to
each Mortgage Loan.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account:
(i) any Delinquency Advances required to be made by the Master
Servicer in accordance with Section 4.03 (in each case, net of the
portion thereof that represents Servicing Fees and/or Special Servicing
Fees, which is to be deposited in the Certificate Account);
(ii) any Compensating Interest Payments required to be made by
the Master Servicer pursuant to Section 3.19;
(iii) any Liquidation Proceeds paid by the Master Servicer or
the Depositor in connection with the purchase of all of the Mortgage
Loans and any REO Properties in the Trust Fund pursuant to Section 9.01
(exclusive of that portion thereof required to be deposited in the
Certificate Account pursuant to Section 9.01); and
(iv) any other amounts required to be so delivered for deposit
in the Distribution Account pursuant to any provision of this
Agreement.
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 referred to in the foregoing clauses (i) through (iv) is required to be
delivered hereunder, 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 amounts referred to in the foregoing clauses
(i) through (iv), 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, as additional compensation
to the Trustee, at an interest rate equal to the Reimbursement Rate then in
effect for the period from 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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(c) 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.
(d) The Trustee shall establish 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 Reserve
Proceeds 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 Shortfall, 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 3.18(d), 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.
SECTION 3.05 PERMITTED WITHDRAWALS FROM THE CERTIFICATE
ACCOUNT, THE DISTRIBUTION ACCOUNT, THE INTEREST RESERVE ACCOUNT AND THE EXCESS
LIQUIDATION PROCEEDS RESERVE ACCOUNT.
(a) The Master Servicer may, from time to time, make
withdrawals from the 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 fourth
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 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
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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 REO Properties, earned and
unpaid Special Servicing Fees in respect of each Specially Serviced
Mortgage Loan and REO Loan;
(iv) to pay to the Special Servicer earned and unpaid Special
Servicing Standby Fees, Workout Fees and Liquidation Fees to which it
is entitled pursuant to, and from the sources contemplated by, Section
3.11(c);
(v) to reimburse the Trustee and itself, in that order, as
applicable, for unreimbursed Delinquency Advances made thereby, the
Master Servicer's or the Trustee's respective rights to be reimbursed
pursuant to this clause (v) being limited to amounts received that
represent Late Collections of interest on and principal of the
particular Mortgage Loans and REO Loans with respect to which such
Delinquency Advances were made (in each case, net of related Workout
Fees);
(vi) to reimburse the Trustee, itself and the Special
Servicer, in that order, as applicable, for unreimbursed Servicing
Advances made thereby, the Master Servicer's, the Special Servicer's or
the Trustee's respective rights to be reimbursed pursuant to this
clause (vi) with respect to any Mortgage Loan or REO Property being
limited to, as applicable, related payments, Liquidation Proceeds,
Insurance Proceeds and REO Revenues;
(vii) to reimburse the Trustee, itself and the Special
Servicer, in that order, as applicable, out of general collections on
the Mortgage Loans and REO Properties, for Nonrecoverable Advances made
thereby;
(viii) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be reimbursed to the Trustee pursuant
to the third paragraph of Section 3.04(b) for nonrecoverable advances
with respect to the Mortgage Certificate;
(ix) 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 REO Properties;
(x) to reimburse itself (if it is not the affected Mortgage
Loan Seller) or the Trustee, as the case may be, for any unreimbursed
expenses reasonably incurred by such Person in respect of any Breach or
Defect giving rise to a repurchase obligation of a Mortgage Loan Seller
under Section 6 of the related Mortgage Loan Purchase Agreement (or
Section 4 of each Supplemental Agreement), including, without
limitation, any expenses arising out of the enforcement of the
repurchase obligation, together with
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interest thereon at the Reimbursement Rate, each such Person's right to
reimbursement pursuant to this clause (x) with respect to any Mortgage
Loan being limited to that portion of the Purchase Price paid for such
Mortgage Loan that represents such expense in accordance with clause
(d) of the definition of Purchase Price;
(xi) in accordance with Section 2.03(d), to reimburse the
Trustee, out of general collections on the Mortgage Loans and 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 each Supplemental Agreement), together with
interest thereon at the Reimbursement Rate, but only to the extent that
such expenses are not reimbursable pursuant to clause (x) above or
otherwise;
(xii) to pay out of general collections on the Mortgage Loans
and REO Properties, for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) and to pay Liquidation Expenses out of
related Liquidation Proceeds pursuant to Section 3.09;
(xiii) 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);
(xiv) 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);
(xv) 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;
(xvi) 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 requested by the Master Servicer, 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
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recording this Agreement in accordance with Section 11.02(a), and (F)
the cost of an Appraisal obtained pursuant to Section 3.11(g) or
Section 4.03(c);
(xvii) 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;
(xviii) to withdraw funds deposited into the Certificate
Account in error; and
(xix) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
For each Mortgage Loan, the Master Servicer shall keep and
maintain separate accounting records, on a loan-by-loan basis (and for each REO
Loan, on a property-by-property basis) when appropriate, for the purpose of
justifying any withdrawal from the Certificate Account.
The Master Servicer shall pay to the Special Servicer (or to
third party contractors at the direction of the Special Servicer) from the
Certificate Account amounts permitted to be paid to it (or to such third party
contractors) therefrom promptly upon receipt of a certificate of a Servicing
Officer of the Special Servicer describing the item and amount to which the
Special Servicer (or such third party contractors) is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Property, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Certificate Account.
(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(c);
(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 its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b);
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(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(f);
(vi) to (A) pay any and all federal, state and local taxes
imposed on REMIC I, REMIC II or REMIC III or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, and any and all reasonable expenses relating to tax audits,
if and to the extent that either (1) none of the Trustee, the Master
Servicer or the Special Servicer is liable therefor pursuant to Section
10.01(g) or (2) any such Person that may be so liable has failed to
make the required payment, and (B) reimburse the Trustee for reasonable
expenses incurred by and reimbursable to it by the Trust Fund pursuant
to Section 10.01(c);
(vii) to reimburse itself for nonrecoverable advances made by
it with respect to the Mortgage Certificate, together with interest
thereon at the Reimbursement Rate, pursuant to Section 3.04(b);
(viii) to withdraw funds deposited into the Distribution
Account in error; and
(ix) 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).
SECTION 3.06 INVESTMENT OF FUNDS IN THE CERTIFICATE ACCOUNT,
THE DISTRIBUTION ACCOUNT, THE EXCESS LIQUIDATION PROCEEDS RESERVE ACCOUNT, THE
INTEREST RESERVE ACCOUNT AND THE REO ACCOUNT.
(a) (i) The Master Servicer may direct any depository
institution maintaining the Certificate 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, (i) no later than the Business
Day
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immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if a Person other
than the depository institution maintaining such account is the obligor thereon,
and (ii) no later than the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if the depository
institution maintaining such account is the obligor thereon. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such). The Master Servicer (with respect to Permitted
Investments of amounts in the Certificate Account, any Lock-Box Account, and any
Cash Collateral Account) and the Special Servicer (with respect to Permitted
Investments of amounts in the REO Account) on behalf of the Trustee, and the
Trustee (with respect to Permitted Investments of amounts in the Distribution
Account, the Excess Liquidation Proceeds Reserve Account and the Interest
Reserve Account), shall (and Trustee hereby designates the Master Servicer and
the Special Servicer, as applicable, as the Person that shall) (i) be the
"entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security". For purposes
of this Section 3.06(a), the terms "entitlement holder", "security entitlement",
"control", "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment by the Master Servicer or the Special
Servicer shall constitute "control" by a Person 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 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:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the
Trustee, as the case may be, that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment
of funds in the Certificate 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
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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, 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
other than Specially Serviced Mortgage Loans) and the Special Servicer (in the
case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause
each Mortgagor to maintain in respect of the related Mortgaged Property all
insurance coverage as is required under the related Mortgage; provided that if
any Mortgage permits the holder thereof to dictate to the Mortgagor the
insurance coverage to be maintained on such Mortgaged Property, the Master
Servicer or the Special Servicer, as appropriate, shall impose such insurance
requirements as are consistent with the Servicing Standard. If a Mortgagor fails
to maintain such insurance, the Master Servicer (at the direction of the Special
Servicer in the case of a Specially Serviced Loan) shall (to the extent
available at commercially reasonable terms) obtain such insurance (which may be
through a master or single interest policy) and the cost (including any
deductible relating to such insurance) of such insurance (or in the case of a
master or single interest policy, the incremental cost (including any deductible
relating to such insurance) of such insurance relating to the specific Mortgaged
Property), shall be a Servicing Advance and shall be recoverable by the Master
Servicer pursuant to Section 3.05(a). If at any time a Mortgaged Property is
located in an area identified in the Flood Hazard Boundary Map or Flood
Insurance Rate Map issued by the Federal Emergency Management Agency as having
special flood hazards or it becomes located
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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 Loan, the Special Servicer) shall, if and to the extent that
the Mortgage 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. If
(i) the Mortgagor is required by the terms of the Mortgage Loan to maintain such
insurance (or becomes obligated by virtue of the related Mortgaged Property
becoming located in such area by virtue of such remapping) or (ii) the terms of
the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain such
insurance, the Master Servicer (or in the case of a Specially Serviced Loan, the
Special Servicer), shall promptly notify the Mortgagor of its obligation to
obtain such insurance. If the Mortgagor fails to obtain such flood insurance
within 120 days of such notification, the Master Servicer (or in the case of a
Specially Serviced Loan, the Special Servicer) shall obtain such insurance, the
cost of which shall be a Servicing Advance and shall be recoverable by the
Master Servicer or Special Servicer pursuant to Section 3.05(a); provided that
the Master Servicer or Special Servicer shall not be required to incur any such
cost if such Advance would constitute a Nonrecoverable Servicing Advance.
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 documents
and the Servicing Standard) shall be deposited in the Certificate Account,
subject to withdrawal pursuant to Section 3.05(a), in the case of amounts
received in respect of a Mortgage Loan, or in the REO Account, subject to
withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an REO Property. Any cost incurred by the Master Servicer or the
Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the outstanding principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit,
but shall be recoverable by the Master Servicer as a Servicing Advance pursuant
to Section 3.05(a).
(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
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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 into the Servicing Account if insurance proceeds are to
be applied to the repair or restoration of the applicable Mortgaged Property or
disbursed to the related Mortgagor) from its own funds the amount not otherwise
payable under the blanket policy because of such deductible clause to the extent
that any such deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard. The
Master Servicer and the Special Servicer each agrees to prepare and present, on
behalf of itself, the Trustee and Certificateholders, 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 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
Certificateholders, 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 and/or 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).
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(d) All insurance coverage required to be maintained by the
Master Servicer or Special Servicer, as applicable, under this Section 3.07
shall be obtained from Qualified Insurers having a claims paying ability rating
(or the obligations of which are guaranteed or backed by a company having such
claims paying ability rating or insurance financial strength rating, as
applicable) of not less than (x) "A" by Standard & Poor's and (y) if rated by
Fitch, "A" by Fitch (or, if not rated by Fitch, rated A-IX or better by A.M.
Best); provided, however, that the requirements of clauses (x) and (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 which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage 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 may not be assumed
without the consent of the mortgagee in connection with any such sale
or other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or, subject to Section 3.20(a)(iv), waive its right to exercise) any
right it may have with respect to such Mortgage Loan (x) to accelerate the
payments thereon, or (y) to withhold its consent to any such sale or other
transfer, in a manner consistent with the Servicing Standard. In the event that
the Special Servicer intends or is required, in accordance with the preceding
sentence, the Mortgage Loan documents or applicable law, to permit the transfer
of any Mortgaged Property, the Special Servicer, if consistent with the
Servicing Standard, may enter into an assumption and modification agreement with
the Person to whom the related Mortgaged Property has been or is intended to be
conveyed or may enter into a substitution of liability agreement, pursuant to
which the original Mortgagor and any original guarantors are released from
liability, and the transferee and any new guarantors are substituted therefor
and become liable under the Mortgage Note and any related guaranties and, in
connection therewith, may require from the related Mortgagor a reasonable and
customary fee for the additional services performed by it, together with
reimbursement for any related costs and expenses incurred by it (but only to the
extent that charging such fee and entering into such assumption and modification
agreement will not be a significant modification of the Mortgage Loan for
purposes of the REMIC Provisions). The Special Servicer shall promptly notify
the Trustee of any such agreement and forward the original thereof to the
Trustee for inclusion in the related Mortgage File. Subject to Section 3.20(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) Fitch, in the case of any Mortgage
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Loan that has, or any Mortgage Loan that is part of a Related Borrower Group
that has, one of the then-ten highest outstanding principal balances in the
Mortgage Pool; and (B) Standard & Poor's, in the case of any Mortgage Loan that
has an outstanding principal balance in excess of the lesser of (1) $20,000,000
or (2) 1.5% of the then outstanding principal balance of the Mortgage Pool a
copy of such documentation and any information with respect to such action as
the Special Servicer deems appropriate or as such Rating Agency may reasonably
request, and shall obtain Rating Agency Confirmation from Fitch (in the case of
any Mortgage Loan described in clause (A) above) and Standard & Poor's (in the
case of any Mortgage Loan described in clause (B) above) prior to executing such
assumption agreement or substitution of liability agreement; provided, however,
if the Special Servicer shall not have received such Rating Agency Confirmation
from Fitch within five (5) Business Days of such Rating Agency's receipt of a
copy of such documentation and such information, such Rating Agency Confirmation
shall be deemed to have been delivered to the Special Servicer by Fitch.
(b) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property;
or
(ii) requires the consent of the mortgagee to the creation of
any such additional lien or other encumbrance on the related Mortgaged
Property,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer on behalf of the Trustee as the mortgagee of record, shall
exercise (or, subject to Section 3.20(a)(iv), waive its right to exercise) any
right it may have with respect to such Mortgage Loan (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) Fitch
(but only in the case of any Mortgage Loan that has, or any Mortgage Loan that
is part of a Related Borrower Group that has, one of the then-ten highest
outstanding principal balances in the Mortgage Pool), and (B) Standard & Poor's
(in all cases) a copy of the documentation under which any such lien would arise
together with such other information with respect to such proposed waiver as the
Special Servicer deems appropriate or as such Rating Agency may reasonably
request, and shall obtain Rating Agency Confirmation from Fitch (in the case of
any Mortgage Loan described in clause (A) above) and Standard & Poor's prior to
waiving any such right; provided, however, if the Special Servicer shall not
have received such Rating Agency Confirmation from Fitch within five (5)
Business Days of such Rating Agency's receipt of a copy of such documentation
and such information, such Rating Agency Confirmation shall be deemed to have
been delivered to the Special Servicer by Fitch.
(c) With respect to any Mortgage Loan which permits release of
Mortgaged Properties through a Defeasance Option, the Master Servicer shall, to
the extent consistent with
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and permitted by the applicable Mortgage Loan documents, permit (or, if the
terms of such Mortgage Loan permit the lender to require defeasance, the Master
Servicer shall require) the exercise of such Defeasance Option on any Due Date
occurring more than two years after the Startup Day or, in the case of the
Bladensburg REMIC Asset, the Corners REMIC Asset and the Woodbury REMIC Asset,
more than two years after the "startup day" for the related REMIC (in each case,
the "Release Date"), subject to the following conditions:
(i) No event of default exists under the related Mortgage
Note;
(ii) The Mortgagor pays on such Release Date (A) all interest
accrued and unpaid on the Principal Balance of the Mortgage Note to and
including the Release Date; (B) all other sums, excluding scheduled
interest or principal payments due under the Mortgage Note and (C) any
costs and expenses incurred in connection with such release;
(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 Mortgage Loan;
(iv) The Mortgagor shall have delivered a security agreement
granting the Trust Fund 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 Trust Fund 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 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; and
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(x) if the Defeasance Option is being exercised to release
less than all of the Mortgaged Properties securing either a
Cross-Collateralized Mortgage Loan or a Mortgage Loan secured by
multiple Mortgaged Properties, the Borrower shall have provided
evidence satisfactory to both the Master Servicer and the Special
Servicer that demonstrates compliance with any debt service coverage
ratio, loan-to-value ratio or other financial tests or conditions
specified in the applicable Mortgage Loan in connection with the
exercise of such Defeasance Option.
(d) Nothing in this Section 3.08 shall constitute a waiver of
the Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Mortgage Loan, any sale or other transfer of the related
Mortgaged Property or the creation of any additional lien or other encumbrance
with respect to such Mortgaged Property.
(e) Except as otherwise permitted by Section 3.20, neither the
Master Servicer nor the Special Servicer shall agree to modify, waive or amend
any term of any Mortgage Loan in connection with the taking of, or the failure
to take, any action pursuant to this Section 3.08.
(f) In the event that the Master Servicer receives a request
from any Mortgagor for consent to (i) the transfer of a Mortgaged Property or
assumption of a Mortgage Loan 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.
The Special Servicer shall monitor such Specially Serviced Mortgage Loan,
evaluate whether the causes of the default can be corrected over a reasonable
period without significant impairment of the value of the related Mortgaged
Property, initiate corrective action in cooperation with the Mortgagor if, in
the Special Servicer's judgment, cure is likely, and take such other actions
(including without limitation, negotiating and accepting a discounted payoff of
a Mortgage Loan) 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. 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
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may be, out of the proceeds of liquidation of such Mortgaged Property, as
contemplated in Section 3.05(a). The Special Servicer (or, subject to Section
3.19(c), the Master Servicer) shall advance all other costs and expenses
incurred by it in any such proceedings, subject to its being entitled to
reimbursement therefor as a Servicing Advance as provided in Section 3.05(a) and
further subject to its being entitled to pay out of the related Liquidation
Proceeds any Liquidation Expenses incurred in respect of any Mortgage Loan,
which Liquidation Expenses were outstanding at the time such proceeds are
received. When applicable state law permits the Special Servicer to select
between judicial and non-judicial foreclosure in respect of any Mortgaged
Property, the Special Servicer shall make such selection in a manner consistent
with the Servicing Standard. Nothing contained in this Section 3.09 shall be
construed so as to require the Special Servicer, on behalf of the Trust Fund, to
make a bid on any Mortgaged Property at a foreclosure sale or similar proceeding
that is in excess of the fair market value of such property, as determined by
the Special Servicer in its sole judgment taking into account the factors
described in Section 3.18(e) and the results of any Appraisal obtained pursuant
to this Agreement, all such bids to be made in a manner consistent with the
Servicing Standard. If and when the Master Servicer or the Special Servicer
deems it necessary and prudent for purposes of establishing the fair market
value of any Mortgaged Property securing a Defaulted Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, the Master Servicer or the
Special Servicer, as the case may be, is authorized to have an Appraisal
performed with respect to such property (the cost of which Appraisal shall be
covered by, and reimbursable as, an Additional Trust Fund Expense).
(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) 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 pursuant to Section 3.05(a)) 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, 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
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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 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 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 by the Master Servicer at the direction of the Special Servicer as an
expense of the Trust Fund pursuant to Section 3.05(a); 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, then the Special Servicer
shall take such action as it deems to be in the best economic interest of the
Trust Fund (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
forward such reports to the Certificateholders) regarding any actions taken by
the Special Servicer with respect to any Mortgaged Property securing a Defaulted
Mortgage Loan as to which the environmental testing contemplated in subsection
(c) above has revealed that either of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof has not been satisfied, in each case
until the earliest to occur of satisfaction of both such conditions, removal of
the related Mortgage Loan from the Trust Fund and release of the lien of the
related Mortgage on such Mortgaged Property.
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(f) The Special Servicer shall report to the Internal Revenue
Service and the related Mortgagor, in the manner required by applicable law, the
information required to be reported regarding any Mortgaged Property which is
abandoned or foreclosed, information returns with respect to the receipt of
mortgage interests received in a trade or business and the information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property required by Sections 6050J, 6050H and 6050P, respectively, of the Code.
Such reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050J, 6050H and 6050P of the Code. The Special
Servicer shall deliver a copy of any such report upon request to the Trustee.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action.
(h) The Special Servicer shall maintain accurate records of
each Final Recovery Determination in respect of a Defaulted Mortgage Loan or REO
Property and the basis thereof. Each Final Recovery Determination shall be
evidenced by an Officer's Certificate delivered to the Trustee no later than the
10th Business Day following such Final Recovery Determination.
SECTION 3.10 TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE FILES.
(a) Upon the payment in full of any Mortgage Loan, or 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 request delivery of the related Mortgage File. Any such
notice and request shall be in the form of a Request for Release signed by a
Servicing Officer and shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required to
be deposited in the Certificate Account pursuant to Section 3.04(a) have been or
will be so deposited. Within seven Business Days (or within such shorter period
as release can reasonably be accomplished if the Master Servicer or the Special
Servicer notifies the Trustee of an exigency) of receipt of such notice and
request, the Trustee shall release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer or the Special Servicer,
whichever requested it. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account.
(b) From time to time as is appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
may deliver to the Trustee a Request for Release signed by a Servicing Officer
thereof. Upon receipt of the foregoing, the Trustee shall deliver or cause the
related Custodian to deliver, the Mortgage File or any document therein to the
Master Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File or such document to the Trustee or the related Custodian, or the
delivery to the Trustee of a certificate of a Servicing Officer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation which are required to be deposited
into the Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, the Request
for
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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 and REO Loan. As to each Mortgage Loan and REO Loan, the Servicing
Fee shall accrue from time to time at the Servicing Fee Rate and shall be
computed on the same basis and the same principal amount respecting which any
related interest payment due on such Mortgage Loan or deemed to be due on such
REO Loan is computed. The Servicing Fee with respect to any Mortgage Loan or 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, REO Revenues allocable as interest on each
REO Loan and the interest portion of Delinquency Advances on each Mortgage Loan
and REO Loan. The Master Servicer shall be entitled to recover unpaid Servicing
Fees in respect of any Mortgage 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 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 that is not a Specially Serviced Mortgage Loan,
is not required to be deposited in the Certificate Account and, to the extent
not required to be paid to the Special Servicer pursuant to Section 3.11(d), may
be retained by the Master Servicer. The Master Servicer shall also be entitled
to additional servicing compensation in the form of (i) any Prepayment Interest
Excesses, Balloon Payment Interest Excesses, and further to the extent received
on Mortgage Loans other than Specially Serviced Mortgage Loans, any Penalty
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Charges not allocable to pay Advance Interest collected on the Mortgage Loans;
(ii) interest or other income earned on deposits in the Investment Accounts
(other than the REO Account), in accordance with Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to each such
Investment Account for each Collection Period), and (iii) to the extent not
required to be paid to any Mortgagor under applicable law or under the related
Mortgage, any interest or other income earned on deposits in the Servicing
Accounts and Reserve Accounts maintained thereby. The Master Servicer shall be
required to pay out of its own funds all overhead and general and administrative
expenses incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts due and owing to any of
Sub-Servicers retained by it and the premiums for any blanket policy insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of the 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 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).
As compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive the Special Servicing Standby Fee
with respect to each Mortgage Loan that is not a Specially Serviced Mortgage
Loan. The Special Servicing Standby Fee shall accrue from time to time at the
Special Servicing Standby Fee Rate on the same basis and the same principal
amount respecting which any related interest payment due on each such Mortgage
Loan is computed. Earned but unpaid Special Servicing Standby 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).
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 Mortgage
Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if a Servicing
Transfer Event occurs with respect thereto or if the related Mortgaged Property
becomes an REO Property; provided that a new Workout Fee will become payable if
and when such Mortgage Loan again becomes a Corrected Mortgage Loan. If the
Special Servicer is terminated other than for cause or resigns in accordance
with Section 6.04, it shall retain the right to receive any and all Workout Fees
payable in respect of Mortgage Loans that became Corrected Mortgage Loans during
the period that it acted as Special Servicer and were still such at the time of
such termination or
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resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the
Special Servicer shall also be entitled to receive a Liquidation Fee with
respect to each Specially Serviced Mortgage Loan or REO Property as to which it
receives any full or discounted payoff or any Liquidation Proceeds (other than
in connection with the purchase of any such Specially Serviced Mortgage Loan or
REO Property by the Special Servicer or the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18 or by the Master Servicer or the
Depositor pursuant to Section 3.18 or by the Master Servicer or the Depositor
pursuant to Section 9.01). As to each such Specially Serviced Mortgage Loan or
REO Property, the Liquidation Fee shall be payable from, and shall be calculated
by application of the Liquidation Fee Rate to, such full or discounted payoff
and/or such Liquidation Proceeds. No Liquidation Fee will be payable with
respect to any Specially Serviced Mortgage Loan solely by virtue of such
Mortgage Loan becoming a Corrected Mortgage Loan. Notwithstanding anything
herein to the contrary, no Liquidation Fee will be payable from, or based upon
the receipt of, Liquidation Proceeds collected as a result of any purchase of a
Specially Serviced Mortgage Loan or REO Property described in the parenthetical
to the first sentence of this paragraph; provided, however, that if any such
Liquidation Proceeds are received with respect to any Corrected Mortgaged Loan,
and the Special Servicer is properly entitled to a Workout Fee therefrom, such
Workout Fee will be payable based on and from the portion of such Liquidation
Proceeds that constitute principal and/or interest.
Notwithstanding anything to the contrary herein, a Liquidation
Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from
the same proceeds on or with respect to such Mortgage Loan.
Subject to the Special Servicer's right to employ
Sub-Servicers, the Special Servicer's right to receive the Special Servicing
Standby Fee, the Special Servicing Fee, the Workout Fee and/or the Liquidation
Fee may not be transferred in whole or in part except in connection with the
transfer of all of the Special Servicer's responsibilities and obligations under
this Agreement.
(d) Additional servicing compensation in the form of (i) all
assumption fees and modification fees received on or with respect to Specially
Serviced Mortgage Loans and (ii) fifty percent (50%) of all assumption fees and
earnout fees received on or with respect to Mortgage Loans that are not
Specially Serviced Mortgage Loans 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). 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
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Section 3.11(b), any Penalty Charges (to the extent not allocable to pay Advance
Interest) collected on the Specially Serviced Mortgage Loans and REO Loans. The
Special Servicer shall be required to pay out of its own funds all overhead and
general and administrative expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts due and owing to any Sub-Servicers retained by it and the premiums for
any blanket policy obtained by it insuring against hazard losses pursuant to
Section 3.07(b)), if and to the extent such expenses are not payable directly
out of the Certificate Account or the REO Account, and the Special Servicer
shall not be entitled to reimbursement except as expressly provided in this
Agreement.
(e) If the Master Servicer or Special Servicer is required
under this Agreement to make a Servicing Advance, but neither does so within 15
days after such Advance is required to be made, the Trustee shall, to the extent
a Responsible Officer of the Trustee has actual knowledge of such failure by the
Master Servicer or the Special Servicer to make such Advance (subject to Section
3.11(g) below), make such Advance.
(f) The Master Servicer, the Special Servicer and the Trustee
shall each be entitled to receive interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of each Servicing Advance made thereby
for so long as such Servicing Advance is outstanding, payable, first, out of
Penalty Charges received on the Mortgage Loan 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.
(g) Notwithstanding anything to the contrary set forth herein,
none of the Master Servicer, the Special Servicer or the Trustee shall be
required to make any Servicing Advance that it determines in its reasonable,
good faith judgment would constitute a Nonrecoverable Servicing Advance;
provided, however, that the Special Servicer may make an Emergency Advance
notwithstanding that, at the time such Advance is made, the Special Servicer may
not have adequate information available in order to make a determination whether
or not such advance would, if made, be a Nonrecoverable Servicing Advance. In
addition, Nonrecoverable Servicing Advances (including any Emergency Advances
made pursuant to the proviso of the preceding sentence which are ultimately
determined to be Nonrecoverable Servicing Advances) shall be reimbursable
pursuant to Section 3.05 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 or, if applicable, the Trustee, that it
has made a Nonrecoverable Servicing Advance or that any proposed Servicing
Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be
evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if
applicable, retained thereby) and the Depositor, setting forth the basis for
such determination, together with (if such determination is prior to the
liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal
of the related Mortgaged Property or REO Property, as the case may be, if an
Appraisal shall have been performed within the twelve months preceding such
determination, and further accompanied by any other information, including,
without limitation, engineers' reports, environmental surveys, inspection
reports, rent rolls, income and expense statements or similar reports, that the
Master Servicer or the Special Servicer may have obtained and that supports such
determination. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement,
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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.
(h) 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.
SECTION 3.12 INSPECTIONS; COLLECTION OF FINANCIAL STATEMENTS.
(a) The Master Servicer shall perform (or cause to be
performed) a physical inspection of each Mortgaged Property (other than
Mortgaged Properties constituting collateral for Specially Serviced Mortgaged
Loans) at such times and in such manner as are consistent with the Servicing
Standard, but in any event at least once every two years or, if the related
Mortgage 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
becomes a Specially Serviced Mortgage Loan, then as soon as practicable (and in
any event within 90 days thereafter) the Special Servicer shall perform (or
cause to be performed) a physical inspection of each Mortgaged Property
constituting collateral for such Mortgage Loan. The Special Servicer shall
prepare (or cause to be prepared) a written report of each such inspection
detailing the condition of the Mortgaged Property and specifying the existence
of (i) any vacancy in the Mortgaged Property evident from such inspection that
the Special Servicer deems material, (ii) any sale, transfer or abandonment of
the Mortgaged Property evident from such inspection, (iii) any adverse change in
the condition or value of the Mortgaged Property evident from such inspection
that the Special Servicer deems material, or (iv) any waste committed on the
Mortgaged Property evident from such inspection. The Special Servicer, upon
request, shall deliver to the Trustee and the Master Servicer a copy of each
such written report.
(c) The Master Servicer (or, in the case of Specially Serviced
Mortgage Loans, the Special Servicer) shall make reasonable efforts to collect
promptly from each Mortgagor
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(other than a Mortgagor on a Credit Lease Loan) quarterly and annual operating
statements and rent rolls of the related Mortgaged Property. In addition, the
Special Servicer shall make reasonable efforts to obtain quarterly and annual
operating statements and rent rolls with respect to each REO Property. The
Master Servicer and Special Servicer, upon request, shall each deliver copies of
the collected items to the other such party and the Trustee in each case within
10 days of its receipt of such request.
SECTION 3.13 ANNUAL STATEMENT AS TO COMPLIANCE.
Each of the Master Servicer and the Special Servicer will
deliver to the Trustee, with a copy to the Depositor, on or before April 30th of
each year, beginning in 2001, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of the Master Servicer or the
Special Servicer, as the case may be, during the preceding calendar year and of
its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
in all material respects its obligations under this Agreement throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and (iii) the Master Servicer or the Special Servicer, as the case may
be, has received no notice regarding qualification, or challenging the status,
of the Trust Fund as a REMIC or of the Grantor Trust as a "grantor trust" under
the Grantor Trust Provisions from the Internal Revenue Service or any other
governmental agency or body or, if it has received any such notice, specifying
the details thereof. A copy of such Officer's Certificate may be obtained by
Certificateholders upon written request to the Trustee pursuant to Section 8.12
hereof.
SECTION 3.14 REPORTS BY INDEPENDENT PUBLIC ACCOUNTANTS.
On or before April 30th of each year, beginning in 2001, the
Master Servicer at its expense shall cause a firm of independent public
accountants (which may also render other services to the Master Servicer) and
that is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Trustee and to the Depositor to the effect that (i)
it has obtained a letter of representation regarding certain matters from the
management of the Master Servicer, which includes an assertion that the Master
Servicer has complied with certain minimum mortgage loan servicing standards (to
the extent applicable to commercial and multifamily mortgage loans), identified
in the Uniform Single Attestation Program for Mortgage Bankers established by
the Mortgage Bankers Association of America, with respect to the servicing of
commercial and multifamily mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of commercial and multifamily mortgage loans by
Sub-Servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
those Sub-Servicers.
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The Special Servicer will deliver an annual accountants'
report only if, and in such form as may be, requested by the Rating Agencies or
if the Special Servicer and the Master Servicer are not the same Person.
The Master Servicer and the Special Servicer, to the extent
applicable, will use reasonable efforts to cause the accountants referred to
above to cooperate with the Depositor in conforming any reports delivered
pursuant to this Section 3.14 to requirements imposed by the Commission on the
Depositor in connection with the Commission's issuance of a no-action letter
relating to the Depositor's reporting requirements in respect of the Trust Fund
pursuant to the Exchange Act.
SECTION 3.15 ACCESS TO CERTAIN INFORMATION.
Each of the Master Servicer and the Special Servicer shall
provide or cause to be provided to the Trustee, and to the OTS, the FDIC, and
any other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to any documentation
regarding the Mortgage Assets 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.
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. The Special Servicer, on behalf of the Trust Fund, shall
attempt to sell any REO Property prior to the close of the third taxable year of
the Trust Fund following the taxable year in which the Trust Fund acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code,
unless the Special Servicer either (i) is granted an extension of time (an "REO
Extension") by the Internal Revenue Service to sell such REO Property or (ii)
obtains for the Trustee an Opinion of Counsel, addressed to the Trustee and the
Special Servicer, to the effect that the holding by the Trust Fund of such REO
Property subsequent to the close of such period will not (subject to Section
10.01(f)) result in the imposition of taxes on "prohibited transactions" of
REMIC I, REMIC II or REMIC III as defined in Section 860F of the Code or cause
REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC (for federal (or
any applicable state or local) income tax purposes) at any time that any
Certificates are outstanding. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell such REO Property within
such longer liquidation period as is permitted by such REO Extension or such
Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its being granted the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall be
an expense of the Trust Fund payable out of the 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
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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. 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 of the location of any REO Account
when first established and of the new location of such REO Account prior to any
change thereof.
(c) The Special Servicer shall cause all funds necessary for
the proper operation, management, maintenance, disposition and liquidation of
any REO Property to be withdrawn from the REO Account, but only to the extent of
amounts on deposit in the REO Account relating to such REO Property. Within one
Business Day following the end of each Collection Period, the Special Servicer
shall withdraw from the REO Account and deposit into the Certificate Account or
deliver to the Master Servicer (which shall deposit such amounts into the
Certificate Account) the aggregate of all amounts received in respect of each
REO Property during such Collection Period, net of any withdrawals made out of
such amounts pursuant to Section 3.16 (b) or this Section 3.16(c); provided that
the Special Servicer may retain in the REO Account such portion of proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, maintenance and disposition of the related REO
Property (including without limitation the creation of a reasonable reserve for
repairs, replacements and necessary capital improvements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
to be incurred during the following twelve-month period.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or (c).
SECTION 3.17 MANAGEMENT OF REO PROPERTY; INDEPENDENT
CONTRACTORS.
(a) Prior to the acquisition of title to any Mortgaged
Property securing a Defaulted Mortgage Loan, the Special Servicer shall review
the operation of such Mortgaged Property and determine the nature of the income
that would be derived from such property if it were acquired by the Trust Fund.
If the Special Servicer determines from such review, in its good faith and
reasonable judgment, that:
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(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure
property" within the meaning of the REMIC Provisions or would be
subject to the tax imposed on "prohibited transactions" under Section
860F of the Code (either such tax referred to herein as an "REO Tax"),
such Mortgaged Property may be Directly Operated by the Special
Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO
Property could result in income from such property that would be
subject to an REO Tax, but that a lease of such property to another
party to operate such property, or the performance of some services by
an Independent Contractor with respect to such property, or another
method of operating such property would not result in income subject to
an REO Tax, then the Special Servicer may (provided, that in the good
faith and reasonable judgment of the Special Servicer, it is
commercially feasible) acquire such Mortgaged Property as REO Property
and so lease or operate such REO Property; or
(iii) Directly Operating such property as REO Property could
result in income subject to an REO Tax and, in the good faith and
reasonable judgment of the Special Servicer, that no commercially
feasible means exists to operate such property as REO Property without
the Trust Fund incurring or possibly incurring an REO Tax on income
from such property, the Special Servicer shall deliver to the Trustee,
in writing, a proposed plan (the "Proposed Plan") to manage such
property as REO Property. Such plan 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 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
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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.
(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 by
the Trust Fund of any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code or any "net income from foreclosure property"
which is subject to taxation under the REMIC Provisions. 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 (as determined by the Special
Servicer in its good faith and reasonable judgment) and, consistent therewith,
shall withdraw from the REO Account, to the extent of amounts on deposit therein
with respect to each REO Property, funds necessary for the proper operation,
management, maintenance and disposition of such REO Property, including, without
limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in the prior sentence with
respect to such REO Property, the Special Servicer shall advance such amount as
is necessary for such purposes (which advances shall be Servicing Advances)
unless (as evidenced by an Officer's Certificate delivered to the Trustee) such
advances would, if made, constitute Nonrecoverable Servicing Advances; provided,
however, that the Special Servicer shall make any such Servicing Advance if it
is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings and such advance will be deemed to constitute a
recoverable Servicing Advance.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
an expense of the Trust Fund) shall be reasonable and customary in
light of the nature and locality of the REO Property;
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(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor (A) pay, out
of related REO Revenues, all costs and expenses incurred in connection
with the operation and management of such REO Property, including,
without limitation, those listed in subsection (b) hereof, and (B)
remit all related REO Revenues (net of its fees and such costs and
expenses) to the Special Servicer;
(iv) none of the provisions of this Section 3.17(c) relating
to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of
its duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of such
REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 3.18 SALE OF DEFAULTED MORTGAGE LOANS AND REO
PROPERTIES.
(a) The parties hereto may sell or purchase, or permit the
sale or purchase of, a Mortgage Loan or REO Property only on the terms and
subject to the conditions set forth in this Section 3.18 or as otherwise
expressly provided in or contemplated by Sections 2.03(a) and 9.01.
(b) In the event that any Mortgage Loan becomes a Defaulted
Mortgage Loan and the Special Servicer has determined in good faith that such
Defaulted Mortgage Loan will become subject to foreclosure proceedings, the
Special Servicer shall promptly so notify, in writing, the Master Servicer and
the Trustee, and the Trustee shall so notify, in writing, within 10 days after
receipt of its notice, the Holders of the Controlling Class. The Majority
Certificateholder of the Controlling Class may at its (or their) option purchase
from the Trust Fund, at a price equal to the Purchase Price, any such Defaulted
Mortgage Loan. The Purchase Price for any Defaulted Mortgage Loan purchased
hereunder 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
Majority Certificateholder of the Controlling Class (or any designee thereof)
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 the Majority Certificateholder of the Controlling Class (or any designee
thereof) ownership of such Defaulted Mortgage Loan (subject, in the case of an
Additional Servicing Fee Mortgage Loan, to the rights of the applicable
Designated Sub-Servicer to sub-service such Mortgage Loan and the rights of the
applicable Designated Sub-Servicer, Archon Financial, L.P. and the Master
Servicer, as applicable, to receive or retain their applicable portion of the
Additional Servicing Fee, in each case, pursuant to the related Designated
Sub-Servicer Agreement). In connection with any such purchase, the Special
Servicer shall deliver the related Credit File to such Certificateholder(s).
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(c) If the Majority Certificateholder of the Controlling Class
has not purchased any Defaulted Mortgage Loan within 15 days of its having
received notice in respect thereof pursuant to the immediately preceding
subsection (b), either the Special Servicer or, subject to the Special
Servicer's prior rights in such regard, the Master Servicer may at its option,
within 15 days after receipt of such notice, purchase such Defaulted Mortgage
Loan from the Trust Fund, at a price equal to the Purchase Price. The Purchase
Price for any Defaulted Mortgage Loan purchased hereunder 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 Master Servicer or the
Special Servicer, as applicable, the related Mortgage File, and shall execute
and deliver at the expense of the purchasing party such instruments of transfer
or assignment, in each case without recourse, representation or warranty, as
shall be necessary to vest in the Master Servicer or the Special Servicer, as
applicable, such Defaulted Mortgage Loan (subject, in the case of an Additional
Servicing Fee Mortgage Loan, to the rights of the applicable Designated
Sub-Servicer to sub-service such Mortgage Loan and the rights of the applicable
Designated Sub-Servicer, Archon Financial, L.P. and the Master Servicer, as
applicable, to receive or retain their applicable portion of the Additional
Servicing Fee, in each case, pursuant to the related Designated Sub-Servicer
Agreement). In connection with any such purchase by the Master Servicer, the
Special Servicer shall deliver the related Credit File to the Master Servicer.
(d) The Special Servicer may offer to sell any Defaulted
Mortgage Loan not otherwise purchased by the Majority Certificateholder of the
Controlling Class, the Master Servicer or the Special Servicer pursuant to
subsection (b) or (c) above (and subject to the rights of Designated
Sub-Servicers as set forth therein), if and when the Special Servicer
determines, consistent with the Servicing Standard, that such a sale would
produce a greater recovery to Certificateholders on a present value basis than
would liquidation of the related Mortgaged Property. Such offering shall be made
in a commercially reasonable manner (which, for purposes hereof, includes an
offer to sell without representation or warranty other than customary warranties
of title, loan status, condition and similar customary matters, if liability for
breach thereof is limited to recourse against the Trust Fund) for a period of
not less than 10 days or more than 90 days. Unless the Special Servicer
determines that acceptance of any offer would not be in the best economic
interests of the Trust Fund, the Special Servicer shall accept the highest cash
offer received from any Person that constitutes a fair price for such Mortgage
Loan. In the absence of any offer determined as provided below to be fair, the
Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in
accordance with Section 3.09 and, otherwise, in accordance with the Servicing
Standard.
The Special Servicer shall use reasonable efforts to solicit
offers for each REO Property in such manner as will be reasonably likely to
realize a fair price within the time period provided for 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
of from whom received. The
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Liquidation Proceeds (net of related Liquidation Expenses) for any REO Property
purchased hereunder shall be deposited in the Certificate Account, except that
any portion of proceeds consisting of Excess Liquidation Proceeds shall be
deposited in the Excess Liquidation Proceeds Reserve Account.
The Special Servicer shall give the Trustee and the Master
Servicer not less than three Business Days' prior written notice of its
intention to sell any Defaulted Mortgage Loan or REO Property. No Interested
Person shall be obligated to submit a bid to purchase any Defaulted Mortgage
Loan or REO Property, and notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates may
bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant
hereto.
(e) Whether any cash bid constitutes a fair price for any
Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of
Section 3.18(d), 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 Mortgage Loan or 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 a Defaulted Mortgage Loan or 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 offer
from a Person other than an Interested Person constitutes a fair price for any
such Mortgage Loan or REO Property, the Special Servicer shall take into account
(in addition to the results of any Appraisal, updated Appraisal or narrative
Appraisal that it may have obtained pursuant to this Agreement within the prior
12 months), and in determining whether any offer from an Interested Person
constitutes a fair price for any such Mortgage Loan or 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 Defaulted
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or 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 Defaulted Mortgage Loan or REO Property shall in all
cases be deemed a fair price.
(f) Subject to subsections (a) through (e) 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
Defaulted Mortgage Loan or REO Property, and the collection of all amounts
payable in connection therewith. In connection therewith, the Special Servicer
may charge prospective offerors, and may retain, fees that approximate the
Special Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or exchanging offers without obligation to deposit such
amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or
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
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warranties typically given in such transactions, any prorations applied thereto
and any customary closing matters), and if such sale is consummated in
accordance with the terms of this Agreement, none of the Special Servicer, the
Master Servicer, the Depositor or the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or 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).
(h) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, 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 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 (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 3.19 ADDITIONAL OBLIGATIONS OF THE MASTER SERVICER AND
THE SPECIAL SERVICER.
(a) In connection with each Adjustable Rate Mortgage Loan
(and, if and to the extent applicable, any successor REO Loan), the Master
Servicer shall calculate adjustments in the Mortgage Rate and the Monthly
Payment and shall notify the Mortgagor of such adjustments, all in accordance
with the Mortgage Note and applicable law. In the event the Index for any
Adjustable Rate Mortgage Loan (or successor REO Loan) is not published or is
otherwise unavailable, the Master Servicer shall select a comparable alternative
index with respect to such Mortgage Loan (or successor REO Loan) over which it
has no direct control, which is readily verifiable and which is acceptable under
the terms of the related Mortgage Note.
(b) The Master Servicer and the Special Servicer, as
applicable, shall each deliver to the other and to the Trustee (for inclusion in
the Mortgage File) copies of all Appraisals, environmental reports and
engineering reports (or, in each case, updates thereof) obtained with respect to
any Mortgaged Property or REO Property.
(c) No more frequently than once per calendar month, the
Special Servicer may require the Master Servicer, and the Master Servicer shall
be obligated, subject to the second following paragraph, to reimburse the
Special Servicer for any Servicing Advances made by but not previously
reimbursed to the Special Servicer, and to pay the Special Servicer interest
thereon at the Reimbursement Rate from the date made to, but not including, the
date of reimbursement. Such reimbursement and any accompanying payment of
Advance Interest shall be made within ten (10) days of the request therefor by
wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Master Servicer's reimbursement to the Special
Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(c), the Master
Servicer shall
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for all purposes of this Agreement be deemed to have made such Servicing Advance
at the same time as the Special Servicer originally made such Advance, and
accordingly, the Master Servicer shall be entitled to reimbursement for such
Advance, together with interest thereon, at the same time, in the same manner
and to the same extent as the Master Servicer would otherwise have been entitled
if it had actually made such Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Advance, such
request to be made in writing and in a timely manner that does not materially
and adversely affect the interests of any Certificateholder. Subject to the
following paragraph, the Master Servicer shall have the obligation to make any
such Servicing Advance that it is requested by the Special Servicer to make
within ten days of the Master Servicer's receipt of such request. The Special
Servicer shall be relieved of any obligations with respect to an Advance that it
requests the Master Servicer to make (regardless of whether or not the Master
Servicer shall make such Advance). The Master Servicer shall be entitled to
reimbursement for any Servicing Advance made by it at the direction of the
Special Servicer, together with Advance Interest thereon, at the same time, in
the same manner and to the same extent as the Master Servicer is entitled with
respect to any other Servicing Advance made thereby. If the Special Servicer
makes any Servicing Advances in accordance with the terms of this Agreement, the
Special Servicer shall notify the Master Servicer in writing within one Business
Day of any such Servicing Advance.
Notwithstanding the foregoing provisions of this Section
3.19(c), the Master Servicer shall not be required to make at the Special
Servicer's direction, or to reimburse the Special Servicer for, any Servicing
Advance if the Master Servicer determines in its reasonable, good faith judgment
that the Servicing Advance which the Special Servicer is directing the Master
Servicer to make or to reimburse to the Special Servicer hereunder either (y)
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance, or (z) the
making of such advance was or would be in violation of the Servicing Standard or
the terms and conditions of this Agreement. The Master Servicer shall notify the
Special Servicer in writing of such determination. Such notice shall not
obligate the Special Servicer to make any such proposed Servicing Advance.
(d) Upon the earliest of (i) the date on which any Mortgage
Loan 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, (iii) the date on which a receiver is appointed and continues in
such capacity in respect of the Mortgaged Property securing any Mortgage Loan
and (iv) the date on which the Mortgaged Property securing any Mortgage Loan
becomes an REO Property (each such Mortgage Loan and any related REO Loan, a
"Required Appraisal Loan"), the Special Servicer, shall request and, within 30
days of the occurrence of such event (or such longer period as the Special
Servicer is (as certified thereby to the Trustee in writing) diligently and in
good faith proceeding to obtain such) obtain an Appraisal of the related
Mortgaged Property; provided, however, that such Appraisal shall not be required
if an Appraisal of the 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.
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With respect to each Required Appraisal Loan (unless such loan
has become a Corrected Mortgage Loan and no other Servicing Transfer Event, or
other event that would cause the loan to be a Required Appraisal Loan, has
occurred), the Special Servicer shall, within 30 days of each anniversary of
such loan's becoming a Required Appraisal Loan, order an update of the prior
Appraisal (the cost of which will be covered by, and reimbursable as, a
Servicing Advance). Based upon such Appraisal, the Special Servicer shall
determine and report to the Trustee the Appraisal Reduction Amount, if any, with
respect to such loan. The Special Servicer shall deliver a copy of any such
Appraisal to the Master Servicer.
Notwithstanding the foregoing, if a Required Appraisal Loan
has a principal balance of less than $2,000,000, a desktop estimation of value
may be substituted for any Appraisal otherwise required pursuant to this Section
3.19(d).
(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 Pool 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) 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 3.20(a)(iv), with respect to all ARD
Loans, the Master Servicer and the Special Servicer shall not take any
enforcement action with respect to the payment of Excess Interest or principal
in excess of the principal component of the constant Monthly Payment, other than
request for collection, until the maturity date of the related Mortgage Loan.
The foregoing shall not limit the Servicer and Special Servicer's obligation to
establish or direct the related Mortgagor to establish a Lock-Box Account
pursuant to Section 3.24.
(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 Mortgage Loan is
not paid in full on its Anticipated Repayment Date.
(j) With respect to each Mortgage Loan that upon the
occurrence of certain events permits the Master Servicer to apply the proceeds
of the release of any earnout reserve to
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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, the Master Servicer shall exercise its option to apply any
proceeds of the release of the related earnout reserve to the prepayment or
defeasance, as applicable, of such Mortgage Loan.
(l) Upon the application of the proceeds of the release of any
earnout reserve to the prepayment of the related Mortgage Loan, the Master
Servicer shall calculate, based upon the Maturity Date, Mortgage Rate and
remaining outstanding principal balance of such Mortgage Loan, a revised
schedule upon which the remaining amount of principal and interest due upon such
Mortgage Loan 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.
SECTION 3.20 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 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, the
Master Servicer (in such capacity) shall not agree to any modification,
waiver or amendment of any term of, or take any of the other acts
referenced in this Section 3.20(a) with respect to, any Mortgage 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 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 reduce the likelihood of
timely payment of amounts due thereon; the Special Servicer (in such
capacity) may, however, agree to any modification, waiver or amendment
of any term of, or take any of the other
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acts referenced in this Section 3.20(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 has occurred or a default in respect of
payment on such Mortgage Loan is reasonably foreseeable, and such
modification, waiver, amendment or other action is reasonably likely to
produce a greater recovery to Certificateholders on a present value
basis, than would liquidation;
(ii) any such action taken by the Special Servicer shall be
accompanied by an Officer's Certificate to such effect and to which is
attached the present value calculation which establishes the basis for
such determination, a copy of which shall be delivered to the Trustee
for delivery to the Rating Agencies;
(iii) neither the Master Servicer nor the Special Servicer may
extend the Stated Maturity Date of any Mortgage Loan beyond the date
that is two years prior to the Rated Final Distribution Date and, in
the case of any Mortgage Loan that is secured solely by a Ground Lease,
the Master Servicer or the Special Servicer, as the case may be, shall
give due consideration to the remaining term of such Ground Lease prior
to extending the Stated Maturity Date of the Mortgage Loan;
(iv) neither the Master Servicer nor the Special Servicer
shall make or permit any modification, waiver or amendment of any term
of, or take any of the other acts referenced in this Section 3.20(a) or
clause (h) of Section 3.19 with respect to, any Mortgage 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 to cease to be a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (neither the
Master Servicer nor the Special Servicer shall be liable for judgments
as regards decisions made under this subsection which were made in good
faith and, unless it would constitute bad faith or negligence to do so,
each of the Master Servicer and the Special Servicer may rely on
opinions of counsel in making such decisions);
(v) neither the Master Servicer nor the Special Servicer shall
permit any Mortgagor to add or substitute any collateral for an
outstanding Mortgage Loan, 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;
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(vi) neither the Master Servicer nor the Special Servicer
shall release or substitute any collateral securing an outstanding
Mortgage 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 in an amount at least equal to,
or a delivery of substitute collateral with an Appraised Value at least
equal to, the Appraised Value of the collateral to be released, (C) the
remaining Mortgaged Property and any substitute collateral is, in the
Master Servicer's or Special Servicer's, as the case may be, good faith
and reasonable judgment, adequate security for the remaining Mortgage
Loan and (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 any other
acts referenced in this Section 3.20(a) that is required under the
terms of such Mortgage Loan in effect on the Closing Date and that is
solely within the control of the related Mortgagor, and (y)
notwithstanding clauses (i) through (vi) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the
confirmation of a plan in any bankruptcy or similar proceeding
involving a Mortgagor if in their reasonable and good faith judgment
such opposition would not ultimately prevent the confirmation of such
plan or one substantially similar. Neither the Master Servicer nor the
Special Servicer may extend the Maturity Date on any Mortgage Loan
except pursuant to this Section 3.20(a) or as otherwise required under
the related loan documents; and
(vii) the Master Servicer shall not consent to any assumption
of a Mortgage 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.
(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 3.20(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 or earnout release as provided in Section 3.20(a)(vii)
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or such
modification, waiver or amendment so permit.
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(d) The Master Servicer and, with respect to a Specially
Serviced Mortgaged Loan, the Special Servicer each may, as a condition to its
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within the
Master Servicer's or the Special Servicer's discretion pursuant to the terms of
the instruments evidencing or securing the related Mortgage Loan 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) for
the additional services performed in connection with such request, together with
any related costs and expenses incurred by it.
(e) Except for waivers of Penalty Charges and notice periods,
all material modifications, waivers and amendments of the Mortgage Loans entered
into pursuant to this Section 3.20 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 and the date thereof, and shall deliver to the Trustee or the
related Custodian for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly (and in any event within 10 Business Days) following the execution
thereof.
SECTION 3.21 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 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 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, 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, and the Special Servicer's
right to receive the Special Servicing Fee with respect to such Mortgage Loan,
shall terminate, and the obligations of the Master Servicer to service and
administer such Mortgage Loan in accordance with this Agreement shall resume.
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Notwithstanding other provisions in this Agreement to the
contrary, the Master Servicer shall remain responsible for the billing and
collection, accounting, data collection, reporting and other basic Master
Servicer administrative functions with respect to Specially Serviced Mortgage
Loans, provided that the Special Servicer shall establish procedures for the
Master Servicer as to the application of receipts and tendered payments and
shall have the exclusive responsibility for and authority over all contacts with
and notices to Mortgagors and similar matters relating to each Specially
Serviced Mortgage Loan and the related Mortgaged Property.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Trustee originals of documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (with a copy of each such original to the Master Servicer), and copies of
any additional related Mortgage Loan information, including correspondence with
the related Mortgagor.
(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 3.22 SUB-SERVICING AGREEMENTS.
(a) The Master Servicer and the Special Servicer may each
enter into Sub-Servicing Agreements for the servicing and administration of all
or a part of the Mortgage Loans for which it is responsible hereunder, provided
that, in each case, the Sub-Servicing Agreement: (i) is not inconsistent with
this Agreement and shall provide that the Sub-Servicer will maintain errors and
omissions insurance and fidelity bond coverage as required of the Master
Servicer or the Special Servicer (whichever retained it) under Section 3.07
hereof; (ii) provides that if the Master Servicer or the Special Servicer, as
the case may be, shall for any reason no longer be the Master Servicer or
Special Servicer, as applicable, hereunder (including, without limitation, by
reason of an Event of Default or their termination hereunder), the Trustee, its
designee or any successor Master Servicer or Special Servicer may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or the Special Servicer, as
the case may be, under such agreement; (iii) in the case of a Sub-Servicing
Agreement entered into by the Master Servicer, expressly or effectively provides
that (if the Master Servicer and the Special Servicer are not the same Person)
such agreement shall terminate with respect to any Mortgage Loan serviced
thereunder at the time such Mortgage Loan becomes a Specially Serviced Mortgage
Loan (provided that, if any Additional Servicing Fee Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the applicable Designated Sub-Servicer, Archon
Financial, L.P. and the Master Servicer, as the case may be, shall be entitled
to continue to receive or retain their applicable portion of the Additional
Servicing Fee with respect to such Mortgage Loan pursuant to the related
Designated Sub-Servicer Agreement); (iv) requires that the Master Servicer or
the Special Servicer, as the case may be, consent to any modification to the
terms of a Mortgage Loan pursuant to Section 3.20; (v) does not permit the
Sub-Servicer any direct rights of indemnification that may be satisfied out of
assets of the Trust Fund; and (vi) in the case of a Sub-Servicing Agreement
entered into by the Special Servicer, relates only to Specially Serviced
Mortgage Loans or REO Properties and
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expressly or effectively provides that (if the Master Servicer and the Special
Servicer are not the same Person) such agreement shall terminate with respect to
any such Mortgage Loan that becomes a Corrected Mortgage Loan. Termination
penalties or fees incurred under any such Sub-Servicing Agreement shall not be
an obligation of, or expense chargeable to, the Certificateholders or the Trust
Fund. References in this Agreement to actions taken or to be taken by the Master
Servicer or the Special Servicer, as the case may be, include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer or the
Special Servicer, as the case may be, hereunder to make Servicing Advances and
Delinquency Advances shall be deemed to have been advanced by the Master
Servicer or the Special Servicer, as the case may be, out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were the Master
Servicer or the Special Servicer, as the case may be, and, for so long as they
are outstanding, such Advances shall accrue interest in accordance with Section
3.11(f) or Section 4.03(d), as applicable, such interest to be allocable between
the Master Servicer or the Special Servicer, as the case may be, and such
Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when the Sub-Servicer receives such payment.
(b) Each Sub-Servicer shall be authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Master
Servicer and the Special Servicer, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the Certificateholders
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 and the
Special Servicer in accordance with the Servicing Standard.
(d) In the event the Trustee, its designee or any successor
Master Servicer or Special Servicer assumes the rights and obligations of the
Master Servicer or the Special Servicer under any Sub-Servicing Agreement, the
Master Servicer or the Special Servicer, as the case may be, at its expense
shall, upon request of the Trustee, deliver to the assuming party all documents
and records relating to such Sub-Servicing Agreement and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected and held on
behalf of it thereunder, and otherwise use reasonable efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreement to the assuming
party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer each shall remain obligated and liable to the
Trustee and the Certificateholders for the servicing and administration of the
Mortgage Loans in accordance with the provisions of this Agreement to the same
extent and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible.
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SECTION 3.23 DESIGNATION OF SPECIAL SERVICER BY THE MAJORITY
CERTIFICATEHOLDER OF THE CONTROLLING CLASS.
(a) The Majority Certificateholder of the Controlling Class,
may at any time and from time to time replace any existing Special Servicer or
any Special Servicer that has resigned or otherwise ceased to serve as Special
Servicer, including pursuant to Section 7.01. Such Holders shall so designate a
Person to so serve by the delivery to the Trustee of a written notice stating
such designation, subject to Rating Agency Confirmation. The Trustee shall,
promptly after receiving any such notice, so notify the Rating Agencies. The
designated Person shall become the Special Servicer as of the date the Trustee
shall have received: (i) written confirmation from the Rating Agencies stating
that if the designated Person were to serve as Special Servicer hereunder, none
of the then-current ratings of the outstanding Classes of the Certificates would
be qualified (including by placement on "negative credit watch"), downgraded or
withdrawn; (ii) a written acceptance of all obligations of the Special Servicer
under this Agreement, executed by the designated Person; and (iii) an Opinion of
Counsel (at the expense of the Person designated to become the Special Servicer
or the Holders that made the designation) to the effect that the designation of
such Person to serve as Special Servicer is in compliance with this Section 3.23
and all other applicable provisions of this Agreement, that upon the execution
and delivery of the written acceptance referred to in the immediately preceding
clause (ii), the designated Person shall be bound by the terms of this Agreement
and that this Agreement shall be enforceable against the designated Person in
accordance with its terms. The existing Special Servicer shall be deemed to have
resigned simultaneously with such designated Person's becoming the Special
Servicer hereunder; provided, however, that (i) the resigning Special Servicer
shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the effective date of such resignation,
whether in respect of Servicing Advances or otherwise, and (ii) it and its
directors, officers, employees and agents shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such resignation. Such resigning
Special Servicer shall cooperate with the Trustee, the Master Servicer and the
replacement Special Servicer in effecting the termination of the resigning
Special Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer within two Business Days to the replacement Special
Servicer for administration by it of all cash amounts that shall at the time be
or should have been deposited in the REO Account or delivered by the Special
Servicer to the Master Servicer or that are thereafter received with respect to
Specially Serviced Mortgage Loans and REO Properties.
(b) The Majority Certificateholder of the Controlling Class
will have no liability to the Trust or the Certificateholders for any action
taken, or for refraining from the taking of any action, in good faith pursuant
to this Agreement, or for errors in judgment. Each Holder and Certificate Owner
acknowledges and agrees, by its acceptance of its Certificates or an interest
therein, that the Majority Certificateholder of the Controlling Class may have
special relationships and interests that conflict with those of Holders and
Certificate Owners of one or more Classes of Certificates, that the Majority
Certificateholder of the Controlling Class may act solely in the interests of
the Holders and Certificate Owners of the Controlling Class, that the Majority
Certificateholder of the Controlling Class does not have any duties to the
Holders and Certificate Owners of any Class of Certificates other than the
Controlling Class, that the Majority Certificateholder of the Controlling Class
may take actions that favor interests of the Holders and Certificate Owners of
the Controlling Class over the interests of the Holders and Certificate
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Owners of one or more other Classes of Certificates, and that the Majority
Certificateholder of the Controlling Class shall have no liability whatsoever
for having so acted, and no Certificateholder may take any action whatsoever
against the Majority Certificateholder of the Controlling Class or any director,
officer, employee, agent or principal thereof for having so acted.
(c) Notwithstanding the foregoing, if the Controlling Class
consists of Book-Entry Certificates, then the rights of the Holders of the
Controlling Class set forth above in this Section 3.23 may be exercised directly
by the relevant Certificate Owners, provided that the identity of such
Certificate Owners has been confirmed to the Trustee to its reasonable
satisfaction.
SECTION 3.24 LOCK-BOX ACCOUNTS AND SERVICING ACCOUNTS.
(a) The Master Servicer shall administer each Lock-Box
Account, Cash Collateral Account and Servicing Account in accordance with the
related Mortgage Loan, Cash Collateral Account Agreement or Lock-Box Agreement,
if any.
(b) For any Mortgage Loan that provides that a Lock-Box
Account or Cash Collateral Account will be established upon the occurrence of
certain events specified in such Mortgage Loan, the Master Servicer (or, with
respect to any Specially Serviced Loan, the Special Servicer) shall use
reasonable efforts to establish or cause to be established such Lock-Box Account
upon the occurrence of such events unless the Master Servicer (or the Special
Servicer, as applicable) determines, in accordance with the Servicing Standards,
that such Lock-Box Account should not be established. Notwithstanding the
foregoing, the Master Servicer (or the Special Servicer, as applicable) shall
use reasonable efforts to establish or cause to be established a Lock-Box
Account for each ARD Loan no later than its Anticipated Repayment Date.
SECTION 3.25 REPRESENTATIONS AND WARRANTIES OF THE MASTER
SERVICER AND THE SPECIAL SERVICER.
GMACCM, in its capacity as both Master Servicer and Special
Servicer hereunder hereby represents and warrants to the Trustee, for its own
benefit and the benefit of the Certificateholders, and to the Depositor, as of
the Closing Date, that:
(i) GMACCM is a corporation, duly organized, validly existing
and in good standing under the laws of the State of California, and
GMACCM is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by GMACCM,
and the performance and compliance with the terms of this Agreement by
GMACCM, will not violate GMACCM's organizational documents or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
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(iii) GMACCM has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of GMACCM, enforceable against GMACCM in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) GMACCM is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in GMACCM's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of GMACCM to perform its obligations under this Agreement or
the financial condition of GMACCM.
(vi) No litigation is pending or, to the best of GMACCM's
knowledge, threatened against GMACCM the outcome of which, in GMACCM's
good faith and reasonable judgment, could reasonably be expected to
prohibit GMACCM from entering into this Agreement or materially and
adversely affect the ability of GMACCM to perform its obligations under
this Agreement.
(vii) GMACCM has errors and omissions insurance coverage which
is in full force and effect and complies with the requirements of
Section 3.07 hereof.
(viii) No consent, approval, authorization or order,
registration or filing with or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by GMACCM with this
Agreement, or the consummation by GMACCM of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings, or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by GMACCM
under this Agreement.
SECTION 3.26 ESTABLISHMENT AND MAINTENANCE OF MORTGAGE
CERTIFICATE SECURITIES ACCOUNT; ENFORCEMENT OF MORTGAGE CERTIFICATE; AMENDMENT.
(a) Concurrently with the execution and delivery of this
Agreement, the Trustee shall establish a securities account with the Securities
Intermediary in the name of the Trustee in trust for the Certificateholders
which shall be entitled "Xxxxx Fargo Bank Minnesota, N.A., as trustee, in trust
for the registered holders of GMAC Commercial Mortgage Securities Inc.
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Mortgage Pass-Through Certificates, Series 2000-C2" (the "Mortgage Certificate
Securities Account") which Mortgage Certificate Securities Account shall be
maintained by the Trustee with the Securities Intermediary at all times separate
and apart from all other accounts maintained with the Securities Intermediary.
The Mortgage Certificate Securities Account shall be an Eligible Account. The
initial Mortgage Certificate Securities Account shall be Account No. 00000000 at
Xxxxx Fargo Bank Minnesota, N.A. Corporate Trust Services. The Mortgage
Certificate shall be deposited in the Mortgage Certificate Securities Account on
the Closing Date and shall at all times be subject to the sole and exclusive
dominion and control of the Trustee in accordance with the provisions hereof,
provided that the Trustee shall act with respect thereto in accordance with the
terms hereof. The Mortgage Certificate may not be withdrawn, transferred or
distributed from the Mortgage Certificate Securities Account except as otherwise
provided in this Agreement. The Securities Intermediary shall, upon receipt,
deposit all funds representing payments and distributions received from FHLMC
under the Mortgage Certificate in the Mortgage Certificate Securities Account.
The Trustee shall promptly withdraw any such funds on deposit in the Mortgage
Certificate Securities Account and deposit such funds in the Distribution
Account to the extent such funds are not required to reimburse the Trustee for
advances pursuant to Section 3.04(b).
(b) The Securities Intermediary, at the direction of the
Trustee, shall, for the benefit of the Certificateholders, enforce the
obligations of FHLMC under the Mortgage Certificate. 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 Mortgage Certificate. The
Securities Intermediary and 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 FHLMC and second, if at the conclusion of such enforcement action it is
determined that the amounts described in clause first are insufficient, then
pursuant to Section 3.05(a)(xi) out of general collections on the Mortgage Loans
on deposit in the Certificate Account.
(c) Neither the Trustee nor the Securities Intermediary shall
consent to any amendment of the terms or provisions of the Mortgage Certificate
unless it shall have obtained Rating Agency Confirmation from each Rating Agency
with respect to such amendment.
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
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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.
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:
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(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 Certificate after all subsequent adjustments made on such
Distribution Date under Section 4.01(c) below (other than payments
thereunder in reimbursement of any Realized Losses and Additional Trust
Fund Expenses); and
(iii) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II
Regular Interests, apportioned among the REMIC II Regular Interests
consistent with the reimbursement payments made on the corresponding
Classes of Principal Balance Certificates on such Distribution Date
under Section 4.01(c) below.
On each Distribution Date, the Trustee shall be deemed to
apply any amounts withdrawn from the Excess Liquidation Proceeds Reserve Account
for such Distribution Date to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II Regular
Interests and unreimbursed pursuant to Section 4.01(b)(iii), consistent with the
reimbursement payments made on the corresponding Classes of Principal Balance
Certificates on such Distribution Date under Section 4.01(c) below.
On each Distribution Date, the Trustee shall pay to the
Holders of the Class R-II Certificates, in accordance with Section 4.01(c), that
portion, if any, of the REMIC II Distribution Amount for such date that has not
otherwise been deemed paid to REMIC III in respect of the REMIC II Regular
Interests pursuant to the foregoing provisions of this Section 4.01(b) (such
portion, the "Class R-II Distribution Amount" for such Distribution Date).
On each Distribution Date, the Trustee shall be deemed to
apply all amounts relating to Prepayment Premiums then on deposit in the
Distribution Account and received during or prior to the related Collection
Period, to pay additional interest to REMIC III in respect of REMIC II Regular
Interests allocable among the REMIC II Regular Interests in an amount with
respect to each REMIC II Regular Interest equal to the amount allocable to the
corresponding Class of Principal Balance Certificates and Class X Component
outstanding after all subsequent adjustments made on such Distribution Date
under Section 4.01(c) below.
(c) On each Distribution Date, following the deemed payments
to REMIC III in respect of the REMIC II Regular Interests on such date pursuant
to Section 4.01(b), the Trustee
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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 and second to the Holders of the Class A-2 Certificates,
in each case, up to an amount equal to the lesser of (1) the then
outstanding Class Principal Balance of such Class of Certificates and
(2) the remaining portion, if any, of such 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:
(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;
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(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;
(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;
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(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
outstanding Class Principal Balance of such Class of Certificates and
(B) the remaining Principal Distribution Amount for such Distribution
Date;
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(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;
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(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
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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 deemed allocated to such Class O
Certificates and for which no reimbursement has previously been
received;
(xl) 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;
(xli) 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
(xlii) 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) and (xxxviii) 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) and (xxxviii) above, in connection with the
payments of principal to be made to the Holders of any Class of Principal
Balance Certificates, shall be to the Principal Distribution Amount for such
Distribution Date, net of any payments of principal made in respect thereof to
the Holders of each Class of Principal Balance Certificates that have a higher
Payment Priority.
On each Distribution Date, the Trustee shall withdraw any
amounts then on deposit in the Distribution Account that represent Prepayment
Premiums collected during or prior to the related Collection Period and shall
distribute such amounts, in each case, subject to available funds, as additional
interest, as follows:
(i) to the Holders of the Class A, Class B, Class C, Class D,
Class E and Class F Certificates up to an amount equal to, in the case
of each such Class, the product of (a) such Prepayment Premiums, (b)
the applicable Discount Rate Fraction and (c) the Principal Allocation
Fraction of such Class; and
(ii) then, to the Holders of the Class X 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 the ARD Loans and any related REO Loans during
the related Collection Period and shall
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distribute with respect to their interests in the Grantor Trust, such amounts to
the holders of the Class O Certificates, without regard to whether any such
Class is entitled to distributions of interest or principal on such Distribution
Date (whether by reason of its Class Principal Balance having been reduced to
zero, by reason of it not yet being entitled to distributions of principal, or
for any other reason).
On each Distribution Date, the Trustee shall withdraw amounts
from the Excess Liquidation Proceeds Reserve Account and shall distribute such
amounts in the following priority:
(i) first, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) up to an
amount equal to all Realized Losses or Additional Trust Fund Expenses,
if any, previously deemed allocated to them and unreimbursed after
application of the Available Distribution Amount for such Distribution
Date;
(ii) second, for distribution to the Special Servicer as
additional servicing compensation, the excess, if any, of (x) the
balance of the Excess Liquidation Proceeds Reserve Account on such
Distribution Date over (y) the aggregate Certificate Principal Balance
of the Principal Balance Certificates as of such Distribution Date;
(iii) third, upon the reduction of the aggregate Class
Principal Balance of the Principal Balance Certificates to zero, to pay
any amounts remaining on deposit in such account to the Special
Servicer as additional Special Servicer compensation.
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided in the last paragraph of Section 4.01(c) or as provided
below, all such distributions with respect to each Class on each Distribution
Date shall be made to the Certificateholders of the respective Class of record
at the close of business on the related Record Date and shall be made by wire
transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates) or otherwise by check mailed to the address
of such Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to such Certificate) will be made in like manner, but only
upon presentation and surrender of such Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Any distribution that is to be
made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Registrar or to any other address of
which the Trustee was subsequently notified in writing.
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(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.
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
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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 with respect to the Mortgage Loans and from FHLMC with
respect to the Mortgage Certificate, on each Distribution Date, the Trustee
shall provide or make available as provided herein to all of the Holders of each
Class of Certificates (and, in the case of a Class of Book-Entry Certificates,
to each Person that provides the Trustee with an Investor Certification), to the
parties hereto and to the Rating Agencies written reports, including reports in
substantially the form attached hereto as Exhibit G (the "Distribution Date
Statement"), setting forth, among other things, the following information:
(i) the amount of distributions, if any, made on such
Distribution Date to the holders of each Class of Principal Balance
Certificates and applied to reduce the respective Class Principal
Balances thereof;
(ii) the amount of distributions, if any, made on such
Distribution Date to the Holders of each Class of REMIC III Regular
Certificates allocable to (A) Distributable Certificate Interest, (B)
Prepayment Premiums and (C) Excess Interest;
(iii) the amount of any distributions made on such
Distribution Date to the Holders of each Class of Residual
Certificates;
(iv) the aggregate amount of outstanding Delinquency Advances
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;
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(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, 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;
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(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 applicable Class and per single Certificate of a
specified minimum denomination. The form of any Distribution Date Statement may
change over time.
The Trustee shall make available each month to any interested
person the related Distribution Date Statement via its internet website
initially located at "xxx.xxxxxxx.xxx/xxxx". In addition, the Trustee shall make
available each month, on a restricted basis, solely to each Privileged Person,
(i) the CMSA Periodic Loan File delivered for each Distribution Date, the CMSA
Loan Setup File, the CMSA Bond Level File, the CMSA Collateral Summary File and
the CMSA Property File, (ii) the Servicer Reports, and (iii) as a convenience to
such Privileged Persons (and not in furtherance of the distribution thereof
under the securities laws), the Prospectus and this Agreement. At the direction
of the Depositor, the Trustee shall remove any
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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 shall make copies of the Mortgage Certificate
Documents available to any interested person upon request, subject to a
reasonable fee to defray the cost of copies.
The provisions in this Section shall not limit the Master
Servicer's ability to make accessible certain information regarding the Mortgage
Loans at a website maintained by the Master Servicer.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall furnish to each Person who at any time during
the calendar year was a Holder of a Certificate a statement containing the
information as to the applicable Class set forth in clauses (i), (ii) and (iii)
of the description of Distribution Date Statements above aggregated for such
calendar year or applicable portion thereof during which such person was a
Certificateholder, together with such other information as the Trustee
determines to be necessary to enable Certificateholders to prepare their tax
returns for such calendar year. Such obligation of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time are in force.
Upon filing with the Internal Revenue Service, the Trustee
shall furnish to the Holders of the Residual Certificates the Form 1066 and
shall furnish their respective Schedules Q thereto at the times required by the
Code or the Internal Revenue Service, and shall provide from time to time such
information and computations with respect to the entries on such forms as any
Holder of the Residual Certificates may reasonably request.
The specification of information to be furnished by the
Trustee to the Certificateholders in this Section 4.02 (and any other terms of
this Agreement requiring or calling for delivery or reporting of information by
the Trustee to Certificateholders and Certificate Owners) shall not limit the
Trustee in furnishing, and the Trustee is hereby authorized to furnish, to
Certificateholders, Certificate Owners and/or to the public any other
information (such other information, collectively, "Additional Information")
with respect to the Mortgage Loans, 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
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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, such Certificate Owner has delivered an
executed certificate in the form of Exhibit K hereto and (F) the Trustee shall
be entitled to distribute or make available such Additional Information in
accordance with such reasonable rules and procedures as it may deem necessary or
appropriate (which may include the requirement that an agreement that provides
such information shall be used solely for purposes of evaluating the investment
characteristics or valuation of the 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") all the
electronic reports delivered or made available pursuant to this Section 4.02(a)
to the Certificateholders and Certificate Owners using a format and media
mutually acceptable to the Trustee and Bloomberg.
(b) No later than the Business Day prior to each Distribution
Date, subject to the last paragraph of this subsection (b), the Master Servicer
shall deliver or cause to be delivered to the Trustee (and, if the Master
Servicer is not the Special Servicer, the Trustee shall deliver to the Special
Servicer) in electronic form mutually acceptable to the Trustee and the Master
Servicer the following reports or information: (1) a Delinquent Loan Status
Report, (2) an REO Status Report, (3) a Historical Loan Modification Report, (4)
a Historical Loss Report and (5) the Servicer Watch List.
No later than the Business Day prior to each Distribution
Date, the Master Servicer will deliver to the Trustee (by electronic means) a
"Comparative Financial Status Report" containing substantially the content set
forth in Exhibit I setting forth, among other things, the occupancy, revenue,
net operating income and debt service coverage ratio for each Mortgage Loan
(other than the Credit Lease Loans) or related Mortgaged Property as of the
Determination Date immediately preceding the preparation of such report for each
of the following three periods (but only to the extent the related borrower is
required by the Mortgage to deliver and does deliver, or otherwise agrees to
provide and does provide, such information): (a) the most current available
year-to-date; (b) each of the previous two full fiscal years stated
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separately (to the extent such information is in the Master Servicer's
possession); and (c) the "base year" (representing the original analysis of
information used as of the Cut-Off Date).
No later than 12:00 noon, New York City time, on the second
Business Day prior to each Distribution Date, the Master Servicer will deliver
to the Trustee a CMSA Periodic Loan File setting forth certain information with
respect to the Mortgage Loans and Mortgaged Properties and a single report (the
"Collection Report") setting forth, among other things, the information
specified in clauses (i) through (vi) below (the amounts and allocations of
payments, collections, fees and expenses with respect to Specially Serviced
Mortgage Loans and REO Properties to be based upon the report to be delivered by
the Special Servicer to the Master Servicer on the second Business Day after the
related Determination Date, in the form required by Section 4.02(c) below):
(i) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account in respect of such
Distribution Date that is allocable to principal on or in respect of
the Mortgage Loans and any REO Loans, separately identifying the
aggregate amount of any Principal Prepayments included therein, and (if
different) the Principal Distribution Amount for the immediately
succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account in respect of such
Distribution Date that is allocable to (A) interest on or in respect of
the Mortgage Loans and any REO Loans, (B) Prepayment Premiums and (C)
Excess Interest;
(iii) the aggregate amount of any Delinquency Advances made
pursuant to Section 4.03 of this Agreement as of the end of the prior
calendar month that were included in amounts deposited in the
Distribution Account;
(iv) the information required to be included in the
Distribution Date Statement for the next succeeding Distribution Date
and described in clauses (v) - (xiii) and (xix) - (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),
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and (ii) an updated Mortgage Asset Schedule, in each case reflecting the changes
in the Mortgage Pool during the related Collection Period.
In addition, the Master Servicer is also required to perform
with respect to each Mortgaged Property and REO Property (except any Mortgaged
Property securing a Credit Lease Loan):
(i) Within 30 days after receipt of a quarterly operating
statement, if any, commencing with the calendar quarter ended September
30, 2000, an "Operating Statement Analysis" containing revenue,
expense, and net operating income information substantially in
accordance with Exhibit I presenting the computation made in accordance
with the methodology set forth in Exhibit F (but only to the extent the
related borrower is required by the Mortgage to deliver and does
deliver, or otherwise agrees to provide and does provide, such
information) for such Mortgaged Property or REO Property as of the end
of such calendar quarter. The Master Servicer will deliver to the
Trustee by electronic means the Operating Statement Analysis upon
request; and
(ii) Within 30 days after receipt by the Master Servicer of an
annual operating statement, an NOI adjustment analysis containing
substantially the content set forth in Exhibit I (the "NOI Adjustment
Worksheet") (but only to the extent the related borrower is required by
the Mortgage to deliver and does deliver, or otherwise agrees to
provide and does provide, such information), presenting the computation
made in accordance with the methodology described in Exhibit F to
"normalize" the full year net operating income and debt service
coverage numbers used by the Master Servicer in preparing the
Comparative Financial Status Report above. The Master Servicer will
deliver to the Trustee by electronic means the "NOI Adjustment
Worksheet" upon request.
Upon request, the Trustee shall deliver or shall cause to be delivered to each
Certificateholder, to each party hereto, to any Underwriter, to the Rating
Agencies, and to each Person that provides the Trustee with an Investor
Certification a copy of the Operating Statement Analysis and NOI Adjustment
Worksheet most recently performed by the Master Servicer with respect to any
Mortgage Loan and delivered to the Trustee.
Not later than the first day of the calendar month following
each Master Servicer Remittance Date, 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
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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).
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 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 (b) is subject to the
Master Servicer having received from the Special Servicer in a timely manner the
related reports and information necessary or required to enable the Master
Servicer to prepare and deliver such reports. The Master Servicer shall not be
responsible for the accuracy or content of any report, document or information
furnished by the Special Servicer to the Master Servicer pursuant to this
Agreement and accepted by the Master Servicer in good faith pursuant to this
Agreement.
(c) On the second Business Day after each Determination Date,
the Special Servicer shall forward to the Master Servicer, for each Specially
Serviced Mortgage Loan and REO Property, reports containing all information the
Master Servicer will be required to include in the other reports that the Master
Servicer is obligated to deliver to the Trustee pursuant to Section 4.02(b), to
the extent such information relates to any Specially Serviced Mortgage Loan or
any REO Property. The Special Servicer shall also deliver to the Trustee, upon
the reasonable written request of the Trustee, any and all additional
information in the possession of the Special Servicer relating to the Specially
Serviced Mortgage Loans and the REO Properties.
The Special Servicer shall cooperate with the Master Servicer
and provide the Master Servicer with the information in the possession of the
Special Servicer reasonably requested by the Master Servicer, in writing, to the
extent required to allow the Master Servicer to perform its obligations under
this Agreement with respect to the Specially Serviced Mortgage Loans and REO
Properties. Additional information regarding the Specially Serviced Mortgage
Loans and REO Properties, including, without limitation, any financial or
occupancy information (including lease summaries) provided to the Special
Servicer by the Mortgagors or otherwise obtained, shall be delivered to the
Master Servicer, within ten days of receipt.
(d) The Master Servicer and the Special Servicer may make
available to Certificate Owners who have certified to the Master Servicer their
beneficial ownership of any Certificate, or prospective Certificate Owners who
provide appropriate confirmation that they are prospective Certificate Owners
who intend to keep any information confidential, copies of any reports or files
prepared by the Servicer pursuant to this Agreement.
(e) Each of the Master Servicer and Special Servicer may make
information concerning the Mortgage Loans available on any website that it has
established.
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(f) Not later than the third Business Day prior to each
Distribution Date, the Trustee shall obtain from FHLMC the "pool factor" with
respect to the Mortgage Certificate for the calendar month of such Distribution
Date, as published by FHLMC on its internet web site or otherwise made available
to the Trustee in accordance with the Mortgage Certificate Documents, and, on
the basis of such pool factor and the pool factor for the immediately preceding
month, shall compute the amount of interest and principal it expects to receive
from FHLMC on the related Due Date for the Mortgage Certificate.
SECTION 4.03 DELINQUENCY ADVANCES.
(a) On each Delinquency Advance Date, the Master Servicer
shall either (i) deposit into the Certificate Account from its own funds an
amount equal to the aggregate amount of Delinquency Advances, if any, to be made
in respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make Delinquency Advances, or
(iii) make Delinquency Advances in the form of any combination of (i) and (ii)
aggregating the total amount of Delinquency Advances to be made; provided that,
if Late Collections (net of related Workout Fees) of the delinquent Monthly
Payments for which Delinquency Advances are to be made for the related
Distribution Date, are on deposit in the Certificate Account and available to
make such Advances, the Master Servicer shall utilize such Late Collections to
make such Advances pursuant to clause (ii) above. Any amounts held in the
Certificate Account 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 on or
before the next succeeding Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal and
interest in respect of which such Delinquency Advances were made). If, as of
3:00 p.m., New York City time, on any Master Servicer Remittance Date, the
Trustee shall not have received any Delinquency Advance required to be made by
the Master Servicer pursuant to this Section 4.03(a) (and the Master Servicer
shall not have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a Delinquency
Advance), then the Trustee shall provide notice of such failure to a Servicing
Officer of the Master Servicer by facsimile transmission sent to telecopy no.
(000) 000-0000 (or such alternative number provided by the Master Servicer to
the Trustee in writing) and by telephone at telephone no. (000) 000-0000
(Attention: Master Servicing Manager) (or such alternative number provided by
the Master Servicer to the Trustee in writing) as soon as possible, but in any
event before 5:00 p.m., New York City time, on such day. If after such notice
the Trustee does not receive the full amount of such Delinquency Advances by
11:00 a.m., New York City time, on the Business Day immediately following such
Master Servicer Remittance Date, then the Trustee shall make the portion of such
Delinquency Advances that was required to be, but was not, made by the Master
Servicer pursuant to this Section 4.03(a).
(b) The aggregate amount of Delinquency Advances to be made by
the Master Servicer in respect of the Mortgage Loans (including, without
limitation, Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to
their respective Balloon Payments) and any REO Loans for any Distribution Date
shall equal, subject to subsection (c) below, the aggregate of all Monthly
Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each
case net of related Workout Fees payable hereunder, that were due or deemed
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due, as the case may be, in respect thereof on their respective Due Dates during
the same month as such Distribution Date and that were not paid by or on behalf
of the related Mortgagors or otherwise collected as of the close of business on
the later of the related Due Date or the last day of the related Collection
Period; provided that, if an Appraisal Reduction Amount exists with respect to
any Required Appraisal Loan, then, in the event of subsequent delinquencies
thereon, the interest portion of the Delinquency Advance in respect of such
Required Appraisal Loan for the related Distribution Date shall be reduced (it
being herein acknowledged that there shall be no reduction in the principal
portion of such Delinquency Advance) to equal the product of (i) the amount of
the interest portion of such Delinquency Advance for such Required Appraisal
Loan for such Distribution Date without regard to this proviso, multiplied by
(ii) a fraction, expressed as a percentage, the numerator of which is equal to
the Stated Principal Balance of such Required Appraisal Loan immediately prior
to such Distribution Date, net of the related Appraisal Reduction Amount, if
any, and the denominator of which is equal to the Stated Principal Balance of
such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no
Delinquency Advance shall be required to be made hereunder if such Delinquency
Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In
addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to
Section 3.05(a) out of general collections on the Mortgage Loans and REO
Properties on deposit in the Certificate Account. The determination by the
Master Servicer or, if applicable, the Trustee, that it has made a
Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance, if
made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced
by an Officer's Certificate delivered promptly (and, in any event, in the case
of a proposed Delinquency Advance to be made by the Master Servicer, no less
than two Business Days prior to the related Delinquency Advance Date) by the
Master Servicer to the Trustee (or, if applicable, retained thereby) and the
Depositor, setting forth the basis for such determination, together with (if
such determination is prior to the liquidation of the related Mortgage Loan or
REO Property) a copy of an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, which shall have been performed within the twelve
months preceding such determination, and further accompanied by any other
information that the Master Servicer or the Special Servicer may have obtained
and that supports such determination. If such an Appraisal shall not have been
required and performed pursuant to the terms of this Agreement, the Master
Servicer, the Special Servicer or the Trustee, as the case may be, may, subject
to its reasonable and good faith determination that such Appraisal will
demonstrate the nonrecoverability of the related Advance, obtain an Appraisal
for such purpose at the expense of the Trust Fund. The Trustee shall be entitled
to rely on any determination of nonrecoverability that may have been made by the
Master Servicer or the Special Servicer with respect to a particular Delinquency
Advance, and the Master Servicer shall be entitled to rely on any determination
of nonrecoverability that may have been made by the Special Servicer with
respect to a particular Delinquency Advance.
(d) The Master Servicer and the Trustee shall each be entitled
to receive interest at the Reimbursement Rate in effect from time to time,
accrued on the amount of each Delinquency Advance made thereby (out of its own
funds) for so long as such Delinquency Advance is outstanding (or, if any
Delinquency Advance is required to be made in respect of a delinquent Monthly
Payment on any Mortgage Loan prior to the end of
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the grace period for such Monthly Payment, for so long as such Delinquency
Advance is outstanding following 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), or Mortgage Certificate, as the
case may be, that will be outstanding immediately following such Distribution
Date. Such reductions shall be deemed to be an allocation of Realized Losses and
Additional Trust Fund Expenses.
(b) On each Distribution Date, following the payments deemed
to be made to REMIC III in respect of the REMIC II Regular Interests on such
date pursuant to Section 4.01(b), the Trustee shall determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of REMIC
II Regular Interests LA-1, LA-2, LB, LC, LD, LE, LF, LG, LH, LJ, LK, LL, LM, LN
and LO exceeds (ii) an amount equal to the aggregate Stated Principal Balance of
the Mortgage Assets 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.
(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 Assets that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the 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.
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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-16. 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,
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
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 officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers 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 offices prior to the authentication and delivery of such Certificates
or did not hold such offices 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
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the Trustee resigns or is removed in accordance with the terms hereof, the
successor trustee shall immediately succeed to its predecessor's duties as
Certificate Registrar. The Depositor, the Master Servicer and the Special
Servicer, shall have the right to inspect the Certificate Register or to obtain
a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register.
(b) No transfer of any Non-Registered Certificate shall be
made unless such transfer is made pursuant to an effective registration
statement under the Securities Act, and effective registration or qualification
under applicable state securities laws, or is made to a Qualified Institutional
Buyer in accordance with Rule 144A promulgated under the Securities Act in a
transaction that does not require such registration or qualification. If such a
transfer is to be made without registration under the Securities Act, other than
a transfer by the Depositor or an Affiliate thereof, then the Trustee shall
require, in order to assure compliance with such laws, receipt by it and the
Depositor of a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit B-1 hereto and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as Exhibit B-2 hereto.
Notwithstanding the foregoing, transfers of a beneficial
interest in any Class (or portion thereof) of Non-Registered Certificates (other
than the Residual Certificates) in accordance with the rules and procedures of
the Depository applicable to transfers by its respective participants will be
permitted if such transfer is made to a Qualified Institutional Buyer in
accordance with Rule 144A promulgated under the Securities Act.
None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify any Class of Non-Registered
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate without registration or qualification. Any Holder of
a Non-Registered Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositor, the Trustee and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(c) (i) No transfer of a Senior Certificate or 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: either (A) (1) such
Plan qualifies as an accredited investor within the meaning of United States
Department of Labor Prohibited Transaction Exemption 94-29 (granted to certain
affiliates of the Depositor) and (2) at the time of such transfer, the Senior
Certificates continue to be rated in one of the top three rating categories by
at least one Rating Agency or (B) 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.
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(ii) No transfer of a Residual Certificate or any interest
therein shall be made (A) to any Plan or (B) to any Person who is
directly or indirectly purchasing such Certificate or interest therein
on behalf of, as named fiduciary of, as trustee of, or with "plan
assets" of a Plan. No transfer of a Subordinated Certificate (other
than 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 unless the
prospective transferee of any such Subordinated Certificate (other than
a Residual Certificate) or any interest therein provides a
certification of facts to the Depositor, the Master Servicer and the
Trustee substantially to the effect that (or, if such Certificate is
not in certificated form, will be deemed to represent that) the
purchase of such Certificate by or on behalf of, or with "plan assets"
of, any Plan is permissible under applicable law, will not constitute
or result in any non-exempt prohibited transaction under ERISA or
Section 4975 of the Code, will not subject the Depositor, the Trustee
or the Master Servicer to any obligation in addition to those
undertaken herein, and the following conditions are met: (a) 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 (b) 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 Subordinated Certificate (other than a
Residual Certificate) or any interest therein will be deemed to have
represented by such purchase that either (a) such purchaser is not a
Plan and is not purchasing such Certificates by or on behalf of, or
with "plan assets" of, any Plan or (b) the purchase of any such
Certificate by or on behalf of, or with "plan assets" of, any Plan is
permissible under applicable law, will not result in any non-exempt
prohibited transaction under ERISA or Section 4975 of the Code, and
will not subject the Depositor, the Trustee or the Master Servicer to
any obligation in addition to those undertaken herein, and the
following conditions are met: (i) 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 (ii) 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 Subordinated 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. The Trustee shall not have any responsibility
to monitor or restrict the transfer of Ownership Interests in any
Certificates that are in the form of a Book-Entry Certificate.
(d)(i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(ii)(A) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) below to negotiate the
terms of any mandatory sale and to execute all instruments of Transfer and to do
all other things necessary in connection with any such sale. The rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
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(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and a United States Person and shall promptly
notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Trustee
shall require delivery to it, and no Transfer of any Residual
Certificate shall be registered until the Trustee receives, an
affidavit and agreement substantially in the form attached
hereto as Exhibit C-1 (a "Transfer Affidavit and Agreement")
from the proposed Transferee, in form and substance
satisfactory to the Trustee, representing and warranting,
among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in
the Residual Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is
not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor
to remain a Permitted Transferee, that it is a United States
Person, and that it has reviewed the provisions of this
Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee under clause
(B) above, if the Trustee has actual knowledge that the
proposed Transferee is not a Permitted Transferee or is not a
United States Person, no Transfer of an Ownership Interest in
a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1) to require
a Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to transfer its
Ownership Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual Certificate
unless it provides to the Trustee a certificate substantially
in the form attached hereto as Exhibit C-2 stating that, among
other things, it has no actual knowledge that such prospective
Transferee is not a Permitted Transferee or is not a United
States Person.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate, by purchasing an Ownership
Interest in such Certificate, agrees to give the Trustee
written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Residual Certificate, if it is, or is holding an
Ownership Interest in a Residual Certificate on behalf of, a
"pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(d) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Person, then the
last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be
restored, to the extent
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permitted by law, to all rights as Holder thereof retroactive to the
date of registration of such Transfer of such Residual Certificate.
None of the Trustee, the Master Servicer, the Special Servicer or the
Certificate Registrar shall be under any liability to any Person for
any registration of Transfer of a Residual Certificate that is in fact
not permitted by this Section 5.02(d) or for making any payments due on
such Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder
of a Residual Certificate in violation of the restrictions in
this Section 5.02(d), or if any Holder of a Residual
Certificate shall lose its status as a Permitted Transferee or
a United States Person, and to the extent that the retroactive
restoration of the rights of the prior Holder of such Residual
Certificate as described in clause (ii)(A) above shall be
invalid, illegal or unenforceable, then the Trustee shall have
the right, without notice to the Holder or any prior Holder of
such Residual Certificate, to sell such Residual Certificate
to a purchaser selected by the Trustee on such terms as the
Trustee may choose. Such non-complying Holder shall promptly
endorse and deliver such Residual Certificate in accordance
with the instructions of the Trustee. Such purchaser may be
the Trustee itself or any Affiliate of the Trustee. The
proceeds of such sale, net of the commissions (which may
include commissions payable to the Trustee or its Affiliates),
expenses and taxes due, if any, will be remitted by the
Trustee to such non-complying Holder. The terms and conditions
of any sale under this clause (ii)(B) shall be determined in
the sole discretion of the Trustee, and the Trustee shall not
be liable to any Person having an Ownership Interest in a
Residual Certificate as a result of its exercise of such
discretion.
(iii) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, all
information necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Residual Certificate to any
Person who is not a Permitted Transferee, including the information
described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5)with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company,
real estate investment trust, common trust fund, partnership, trust,
estate or organization described in Section 1381 of the Code that holds
an Ownership Interest in a Residual Certificate having as 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
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such Rating Agency to qualify, downgrade or withdraw its
then-current rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee and the Depositor, to the effect
that such modification of, addition to or elimination of such
provisions will not cause any of REMIC I, REMIC II or REMIC
III to (x) cease to qualify as a REMIC or (y) be subject to an
entity-level tax caused by the Transfer of any Residual
Certificate to a Person which is not a Permitted Transferee,
or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a
Residual Certificate to a Person which is not a Permitted
Transferee.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the offices of the Certificate
Registrar maintained for such purpose, the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
of a like aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Trustee or the Certificate Registrar) be
duly endorsed by, or be accompanied by a written instrument of transfer in the
form satisfactory to the Trustee and the Certificate Registrar duly executed by,
the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
(i) All Certificates surrendered for transfer and exchange
shall be physically canceled by the Certificate Registrar, and the Certificate
Registrar shall hold such canceled Certificates in accordance with its standard
procedures.
(j) Upon request, the Certificate Registrar shall provide the
Master Servicer, the Special Servicer and the Depositor with an updated copy of
the Certificate Register on or about January 1 and July 1 of each year,
commencing July 1, 2000.
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
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the Certificate Registrar unless such transfer is to a successor Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and transfer
their respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in subsection
(c) below shall not be entitled to definitive, fully registered Certificates
("Definitive Certificates") in respect of such Ownership Interests. The Trustee
shall not have any responsibility to monitor or restrict the transfer of
Ownership Interests in any Book-Entry Certificate. All transfers by Certificate
Owners of their respective Ownership Interests in the Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
(b) The Trustee, the Master Servicer, the Special Servicer,
the Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to properly discharge its responsibilities with respect to the Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer and any other documents necessary to satisfy the
requirements of any applicable transfer restrictions, the Trustee shall execute,
and the Certificate Registrar shall authenticate and deliver, the applicable
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 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.
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SECTION 5.04 MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.05 PERSONS DEEMED OWNERS.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the 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
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qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage 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) such Person is
qualified to service multifamily mortgage loans on behalf of FNMA or FHLMC and
(ii) such merger, consolidation or succession will not result in the downgrade,
qualification or withdrawal of the then-current ratings of the Classes of
Certificates that have been so rated (as evidenced by a letter to such effect
from each Rating Agency).
(c) Notwithstanding anything else in this Section 6.02 and
Section 6.04 to the contrary, the Master Servicer and the Special Servicer may
assign all of its rights and delegate all of its duties and obligations under
this Agreement; provided that the Person accepting such assignment or delegation
shall be a Person that is qualified to service multifamily mortgage loans on
behalf of FNMA or FHLMC, is reasonably satisfactory to the Trustee and the
Depositor, is willing to service the Mortgage Loans and executes and delivers to
the Depositor and the Trustee an agreement, in form and substance reasonably
satisfactory to the Depositor and the Trustee, which contains an assumption by
such Person of the due and punctual performance and observance of each covenant
and condition to be performed or observed by the Master Servicer or the Special
Servicer, as the case may be, under this Agreement; provided further that such
assignment or delegation will not result in the downgrade, qualification or
withdrawal of the then-current ratings of the Classes of Certificates that have
been rated (as evidenced by a Rating Agency Confirmation). In the case of any
such assignment and delegation, the Master Servicer or the Special Servicer, as
the case may be, shall be released from its obligations under this Agreement,
except that the Master Servicer or the Special Servicer, as the case may be,
shall remain liable for all liabilities and obligations incurred by it, or
arising from its conduct, hereunder prior to the satisfaction of the conditions
to such assignment and delegation set forth in the preceding sentence.
Notwithstanding anything above to the contrary, each of the Master Servicer and
the Special Servicer may, in its sole discretion, appoint Sub-Servicers in
accordance with Section 3.22 hereof and independent contractors or agents to
perform select duties thereof, provided that the Master Servicer or the Special
Servicer shall not be relieved from such duties solely by virtue of such
appointment.
SECTION 6.03 LIMITATION ON LIABILITY OF THE DEPOSITOR, THE
MASTER SERVICER, THE SPECIAL SERVICER AND OTHERS.
None of the Depositor, the Master Servicer, the Special
Servicer or any of the directors, officers, employees or agents of the
Depositor, the Master Servicer or the Special Servicer shall be under any
liability to the Trust Fund or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement or
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for errors in judgment; provided, however, that this provision shall not protect
the Depositor, the Master Servicer, the Special Servicer or any such Person
against any breach of warranties or representations made herein or any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor, the Master Servicer, the
Special Servicer and any director, officer, employee or agent of the Depositor,
the Master Servicer or the Special Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer and
the Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer or the Special Servicer shall be 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 or the
Certificates or any asset of the Trust Fund, other than any loss, liability or
expense specifically required to be borne by such Person pursuant to the terms
hereof, or which constitutes a Servicing Advance (and is otherwise specifically
reimbursable hereunder), or which is incurred by such Person by reason of such
Person's willful misfeasance, bad faith or negligence in the performance of such
Person's duties hereunder or by reason of such Person's reckless disregard of
obligations and duties hereunder.
None of the Depositor, the Master Servicer or the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action, proceeding, hearing or examination that is not
incidental to its respective duties under this Agreement and which in its
opinion may involve it in any ultimate expense or liability; provided, however,
that the Depositor, the Master Servicer or the Special Servicer may in its
discretion undertake any such action, proceeding, hearing or examination that it
may deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Certificateholders
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).
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.
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SECTION 6.05 RIGHTS OF THE DEPOSITOR IN RESPECT OF THE MASTER
SERVICER AND THE SPECIAL SERVICER.
The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer and the Special Servicer hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer or the Special Servicer hereunder or exercise
the rights of the Master Servicer or the Special Servicer hereunder; provided,
however, that neither the Master Servicer nor the Special Servicer shall be
relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee. The Depositor shall not have any responsibility
or liability for any action or failure to act by the Master Servicer or the
Special Servicer and is not obligated to supervise the performance of the Master
Servicer or the Special Servicer under this Agreement or otherwise.
ARTICLE VII
DEFAULT
SECTION 7.01 EVENTS OF DEFAULT.
(a) "Event of Default", wherever used herein, means any one of
the following events:
(i) 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 or the Special
Servicer to timely make any Servicing Advance required to be made by it
pursuant to this Agreement which continues unremedied for a period
ending on the earlier of (A) 15 days following the date such Servicing
Advance was first required to be made, and (B) either, if applicable,
(1) in the case of a Servicing Advance relating to the payment of
insurance premiums, the day on which such insurance coverage terminates
if such premiums are not paid or (2) in the case of a Servicing Advance
relating to the payment of real estate taxes, the date of the
commencement of a foreclosure action with respect to the failure to
make such payment; or
(iv) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any
other of the covenants or agreements on the part of the Master Servicer
or the Special Servicer contained in this
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Agreement which continues unremedied for a period of 30 days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by the Trustee or the Depositor, or to
the Master Servicer or the Special Servicer, as the case may be by the
Holders of Certificates entitled to not less than 25% of the Voting
Rights; provided, however, that if such covenant or agreement is
capable of being cured and the Master Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30 day period shall
be extended for an additional 30 days; or
(v) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement which materially and adversely affects the interests of any
Class of Certificateholders and which continues unremedied for a period
of 30 days after the date on which notice of such breach, requiring the
same to be 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
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(x) the Master Servicer or the Special Servicer is removed
from Standard & Poor's approved master servicer list or special
servicer list, as the case may be, and the ratings of any of the
Certificates by Standard & Poor's are downgraded, qualified or
withdrawn (including, without limitation, placed on "negative credit
watch") in connection with such removal.
(b) If any Event of Default with respect to the Master
Servicer or the Special Servicer (in either case for purposes of this Section
7.01(b), the "Defaulting Party") shall occur and be continuing, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied, the Depositor or the Trustee may, and at the written direction of the
Holders of Certificates entitled to at least 51% of the Voting Rights, the
Trustee shall terminate, by notice in writing to the Defaulting Party, with a
copy of such notice to the Depositor (if the termination is effected by the
Trustee) or to the Trustee (if the termination is effected by the Depositor),
all of the rights and obligations of the Defaulting Party under this Agreement
and in and to the Mortgage Loans and the proceeds thereof (other than any rights
of the Defaulting Party as Certificateholder). From and after the receipt by the
Defaulting Party of such written notice, all authority and power of the
Defaulting Party under this Agreement, whether with respect to the Certificates
(other than as a Holder of any Certificate) or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee pursuant to and under this Section,
and, without limitation, the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer and the Special Servicer each agrees that if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee or any other Successor Master Servicer or
Special Servicer with all documents and records requested by it to enable it to
assume the Master Servicer's or Special Servicer's, as the case may be,
functions hereunder, and shall cooperate with the Trustee or any other Successor
Master Servicer or Special Servicer in effecting the termination of the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including, without limitation, the transfer within two
Business Days to the Trustee or any other Successor Master Servicer or Special
Servicer for administration by it of all cash amounts which shall at the time be
or should have been credited by the Master Servicer or the Special Servicer to
the Certificate Account, the Distribution Account, the REO Account or any
Servicing Account or thereafter be received with respect to the Mortgage 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
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its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Master
Servicer or the Special Servicer, as the case may be, by the terms and
provisions hereof, including, without limitation, the Master Servicer's
obligation to make Delinquency Advances; provided that any failure to perform
such duties or responsibilities caused by the Master Servicer's or the Special
Servicer's failure to provide information or monies required by Section 7.01
shall not be considered a default by the Trustee hereunder. The Trustee shall
not be liable for any of the representations and warranties of the Master
Servicer or the Special Servicer or for any losses incurred by the Master
Servicer or the Special Servicer pursuant to Section 3.06 hereunder nor shall
the Trustee be required to purchase any Mortgage Loan hereunder. 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 which the
Master Servicer or the Special Servicer would have been entitled to charge to
the Certificate Account or the Distribution Account if the Master Servicer or
the Special Servicer had continued to act hereunder. Notwithstanding the above,
the Trustee may, if it shall be unwilling to so act, or shall, if it is unable
to so act or if the Holders of Certificates entitled to at least 51% of the
Voting Rights so request in writing to the Trustee or if the Trustee is not
approved as a master servicer or special servicer, as the case may be, by each
Rating Agency, promptly appoint any FNMA or FHLMC-approved mortgage loan
servicing institution that has a net worth of not less than $10,000,000 and is
otherwise acceptable to each Rating Agency (as evidenced by Rating Agency
Confirmation), as the successor to the Master Servicer hereunder or the Special
Servicer, as the case may be, in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer or the Special
Servicer, as the case may be, hereunder. No appointment of a successor to the
Master Servicer or the Special Servicer, as the case may be, hereunder shall be
effective until the assumption of the successor to the Master Servicer or the
Special Servicer, as the case may be, of all the responsibilities, duties and
liabilities of the Master Servicer or the Special Servicer, as the case may be,
hereunder. Pending appointment of a successor to the Master Servicer or the
Special Servicer, as the case may be, hereunder, the Trustee shall act in such
capacity as hereinabove provided. In connection with any such appointment and
assumption described herein, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans 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
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pursuant to Section 7.02, the Trustee shall give prompt written notice thereof
to Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Not later than the later of (i) 60 days after the
occurrence of any event which constitutes or, with notice or lapse of time or
both, would constitute an Event of Default and (ii) five days after the Trustee
would be deemed to have notice of the occurrence of such an event in accordance
with Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and
all Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04 WAIVER OF EVENTS OF DEFAULT.
The Holders of Certificates representing at least 66-2/3% of
the Voting Rights allocated to the Classes of Certificates affected by any Event
of Default hereunder may waive such Event of Default; provided, however, that an
Event of Default under clause (i) or (ii) of Section 7.01 may be waived only by
all of the Certificateholders of the affected Classes. Upon any such waiver of
an Event of Default, such Event of Default shall cease to exist and shall be
deemed to have been remedied for every purpose hereunder. No such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent thereon except to the extent expressly so waived. Notwithstanding any
other provisions of this Agreement, for purposes of waiving any Event of Default
pursuant to this Section 7.04, Certificates registered in the name of the
Depositor or any Affiliate of the Depositor shall be entitled to the same Voting
Rights with respect to the matters described above as they would if any other
Person held such Certificates.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 DUTIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiver of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default occurs and is
continuing, the Trustee (other than as successor Master Servicer or Special
Servicer) shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement (other than the Mortgage
Files, the review of which is specifically governed by the terms of Article II),
shall examine them to determine whether they conform to the requirements of this
Agreement. If any such instrument is found not to conform to the requirements of
this Agreement in a material manner, the Trustee shall take such action as it
deems appropriate to have the instrument corrected. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the
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Master Servicer or the Special Servicer or any other person and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement;
(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement.
SECTION 8.02 CERTAIN MATTERS AFFECTING THE TRUSTEE.
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
therewith and the expense of such consultation with counsel shall be
reimbursable under Section 8.05(b) hereof;
(iii) The Trustee shall not be under any obligation to
exercise any of the trusts or powers vested in it by this Agreement or
to make any investigation of matters arising hereunder or to institute,
conduct or defend any litigation hereunder or in relation
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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 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;
(iv) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder
and after the curing of all Events of Default which may have occurred,
the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so
by Holders of Certificates entitled to at least 50% of the Voting
Rights; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition
to taking any such action;
(vi) The Trustee may not execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, provided that the Trustee shall not be relieved from
such duties, and the Trustee shall remain responsible for all acts and
omissions of any such agent;
(vii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office, and such notice
references the Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any act or
omission of the Master Servicer or the Special Servicer (unless the
Trustee is acting as Master Servicer or the Special Servicer, as the
case may be) or of the Depositor or any other person.
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SECTION 8.03 TRUSTEE NOT LIABLE FOR VALIDITY OR SUFFICIENCY OF
CERTIFICATES OR MORTGAGE LOANS OR MORTGAGE CERTIFICATE.
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 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 Asset 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 Assets 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 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 and any of its directors, officers, employees or agents shall be
indemnified and held harmless by the Trust Fund (to the extent of amounts on
deposit in the Distribution Account from time to time) against any loss,
liability or expense (including, without limitation, costs and expenses of
litigation, and of investigation, counsel fees, damages, judgments and amounts
paid in settlement) arising out of, or incurred in connection with, any act or
omission of the Trustee relating to the exercise and performance of any of the
powers and duties of the Trustee hereunder; provided that neither the Trustee
nor any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (i) allocable overhead,
(ii) expenses or disbursements incurred or made by or on behalf of the Trustee
in the normal course of 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
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hereof, or (iv) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or by reason of reckless disregard of such
obligations or duties, or as may arise from a breach of any representation,
warranty or covenant of the Trustee made herein. The provisions of this Section
8.05(b) shall survive any resignation or removal of the Trustee and appointment
of a successor trustee.
SECTION 8.06 ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The Trustee hereunder shall at all times be an association or
a corporation organized and doing business under the laws of the United States
of America or any State thereof or the District of Columbia, authorized under
such laws to exercise trust powers, having a combined capital and surplus of at
least $100,000,000 and subject to supervision or examination by federal or state
authority. If such association or corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such association or corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. The long-term unsecured debt obligations of the Trustee
shall at all times be rated not less than "AA" by Standard & Poor's and "AA" by
Fitch (or, if not rated by Fitch, otherwise acceptable to Fitch as would not
result in a qualification, downgrade or withdrawal of the rating assigned by
Fitch to any Class of Certificates) or such other rating as shall not result in
the qualification, downgrade or withdrawal of any of the ratings then assigned
to the respective Classes of Certificates, as confirmed in writing by each
Rating Agency. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07;
provided that if the Trustee shall cease to be so eligible because its combined
capital and surplus is no longer at least $100,000,000 or its long-term
unsecured debt rating no longer conforms to the requirements of the immediately
preceding sentence, and if the Trustee proposes to the other parties hereto to
enter into an agreement with (and reasonably acceptable to) each of them or the
Trustee appoints a fiscal agent, and if in light of such agreement or such
appointment, the Trustee's continuing to act in such capacity would not (as
evidenced in writing by each Rating Agency) cause any Rating Agency to qualify,
downgrade or withdraw any rating assigned thereby to any Class of Certificates,
then upon the execution and delivery of such agreement or the effectiveness of
such appointment, the Trustee shall not be required to resign, and may continue
in such capacity, for so long as none of the ratings assigned by the Rating
Agencies to the Certificates is adversely affected thereby. The corporation or
association serving as Trustee may have normal banking and trust relationships
with the Depositor, the Master Servicer, the Special Servicer and their
respective Affiliates.
SECTION 8.07 RESIGNATION AND REMOVAL OF THE TRUSTEE.
(a) The Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor trustee acceptable to the Master Servicer by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee. A copy of such instrument shall be delivered to the
Master Servicer, the
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Special Servicer and the Certificateholders by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of
the Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. A copy of
such instrument shall be delivered to the Depositor, the Special Servicer and
the remaining Certificateholders by the Master Servicer.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 8.07
shall not become effective until acceptance of appointment by the successor
trustee as provided in Section 8.08 and, if the Trustee that is resigning or
being removed also serves as Securities Intermediary under this Agreement, the
acceptance of appointment by the successor securities intermediary as provided
in Section 8.15. 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
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agent of the successor trustee), and the Depositor, the Master Servicer, the
Special Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided
in this Section 8.08 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the successor trustee shall mail notice of such
appointment to the Depositor and the Certificateholders.
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
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unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(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.
The Trustee may, with the consent of the Master Servicer,
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 have long-term unsecured debt obligation
ratings from Fitch of at least "BBB" or be otherwise acceptable to Fitch, 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 the Agreement in the amount of coverage
customary for custodians acting in such capacity, and shall not be the
Depositor, a Mortgage Loan Seller or any Affiliate of the Depositor or a
Mortgage Loan Seller. Each Custodian shall be subject to the same obligations
and standard of care as would be imposed on the Trustee hereunder in connection
with the retention of Mortgage Files 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.
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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(b), (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 3.20 (but only for so long as the affected Mortgage Loan is part of the
Trust Fund), (I) copies of any Appraisals performed as a result of an Appraisal
Reduction Event, 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.
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
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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 Mortgage Certificate 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.
(a) 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:
(i) The Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America.
(ii) The execution and delivery of this Agreement by the
Trustee, and the performance and compliance with the terms of this
Agreement by the Trustee, will not violate the Trustee's organizational
documents or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it
is a party or which is applicable to it or any of its assets.
(iii) This Agreement, assuming due authorization, execution
and delivery by the Special Servicer, the Master Servicer and the
Depositor, constitutes a valid, legal and binding obligation of the
Trustee, enforceable against the Trustee in accordance with the terms
hereof, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditor's
rights generally, and general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
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(iv) The Trustee is not in default with respect to any order
or decree of any court, or any order, regulation or demand of any
federal, state, municipal or governmental agency having jurisdiction,
which default, in the Trustee's good faith and reasonable judgment, is
likely to affect materially and adversely the ability of the Trustee to
perform its obligations or the financial condition or operations of the
Trustee or its properties.
(v) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the
Trustee from entering into this Agreement or, in the Trustee's good
faith and reasonable judgment, is likely to materially and adversely
affect the ability of the Trustee to perform its obligations under this
Agreement.
(vi) No consent, approval, authorization or order of,
registration or filing with or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Trustee with this
Agreement, or the consummation by the Trustee of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorization, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on performance by the Trustee
under this Agreement.
SECTION 8.14 FILINGS WITH THE SECURITIES AND EXCHANGE
COMMISSION.
Based on information furnished to it by the Master Servicer
and the Depositor (in an 80 column unformatted electronic format acceptable to
the Trustee), the Trustee will prepare and file with the Securities and Exchange
Commission on Form 8-K (including XXXXX filings), on behalf of the Trust Fund,
each Distribution Date Statement. The Trustee shall have no responsibility to
file any items other than those specified in this Section 8.14. Prior to January
2, 2001 (and each anniversary thereafter until directed by the Depositor to file
a Form 15, delisting the transaction) the Trustee shall hire counsel selected by
the Depositor to file Form 10-K's on behalf of the Trust Fund for the preceding
fiscal year. Any fees and expenses accrued and incurred by the Trustee in
connection with this Section 8.14 (including reasonable attorneys' fees) shall
be reimbursed to it by the Depositor. Prior to filing any such reports, the
Trustee shall submit reports to the Depositor for review and approval.
SECTION 8.15) SECURITIES INTERMEDIARY.
(a) The parties hereto hereby appoint Xxxxx Fargo Bank
Minnesota, N.A. to act as the initial Securities Intermediary. The Securities
Intermediary represents, warrants, and covenants that it is as of the date
hereof and shall be for so long as it is the Securities Intermediary hereunder a
bank that in the ordinary course of its business maintains securities accounts
for others and is acting in that capacity hereunder. The Securities Intermediary
further represents, warrants and covenants that, as of the date hereof and for
so long as it is the Securities Intermediary hereunder, (i) the Mortgage
Certificate Securities Account shall be an account of the Trustee to which
financial assets may be delivered in accordance with Section
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2.01, (ii) each item of property delivered to the Mortgage Certificate
Securities Account shall be treated as a financial asset, (iii) the Securities
Intermediary shall treat the Trustee as entitled to exercise the rights that
comprise such financial assets, (iv) as a result of Section 11.04 of this
Agreement, the "securities intermediary's jurisdiction" as defined in the UCC,
and the "Securities Intermediary's Jurisdiction" as defined in the United States
Regulations, of the Securities Intermediary with respect to the Mortgage
Certificate, shall be the State of New York, (v) the Securities Intermediary is
not and shall not knowingly be (as long as it is the Securities Intermediary
hereunder) a party to any agreement that is inconsistent with the provisions of
this Agreement, (vi) the Securities Intermediary shall not knowingly take any
action inconsistent with the provisions of this Agreement, (vii) the Securities
Intermediary shall comply with entitlement orders originated by the Trustee
without the further consent of any other Person, (viii) the Securities
Intermediary shall not agree with any Person other than the Trustee to comply
with entitlement orders originated by such other Person and (ix) the Mortgage
Certificate Securities Account and all property delivered to it shall not be
subject to any lien, security interest, or right of set-off in favor of the
Securities Intermediary or anyone claiming through it (other than the Trustee).
(b) The Securities Intermediary shall at all times be an
entity that is eligible to maintain book-entry accounts with a Federal Reserve
Bank. If the Trustee serves as Securities Intermediary under this Agreement, any
resignation or removal of such Trustee shall terminate its appointment as
Securities Intermediary, provided that such termination shall not become
effective until acceptance of appointment by a successor securities
intermediary. If the Securities Intermediary resigns or is removed, a
replacement Securities Intermediary satisfactory to the Depositor shall be
appointed by the Trustee or, if the Trustee is also resigning or being removed
or terminated, by the successor trustee. Any such replacement of the Securities
Intermediary shall be effected in a manner which does not result in any
interruption of the lien and security interests granted to the Trustee for the
benefit of the Certificateholders pursuant to this Agreement.
(c) The protections afforded to the Trustee in this Article
VIII shall apply to the Securities Intermediary to the same extent to which such
protections apply to the Trustee.
ARTICLE IX
TERMINATION
SECTION 9.01 TERMINATION UPON REPURCHASE OR LIQUIDATION OF ALL
MORTGAGE LOANS.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of (i) the purchase by the Master Servicer
or the Depositor of all Mortgage Assets and each REO Property remaining in REMIC
I at a price (to be determined as of the end of the Collection Period for the
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anticipated Final Distribution Date) equal to (A) the aggregate Purchase Price
of all the Mortgage Assets included in REMIC I, plus (B) the appraised value of
each REO Property, if any, included in REMIC I (such appraisal to be conducted
by an Independent MAI-designated appraiser selected by the Master Servicer and
approved by the Trustee), minus (C) solely in the case where the Master Servicer
is effecting such purchase, the aggregate amount of unreimbursed Advances,
together with any Advance Interest accrued and payable to the Master Servicer in
respect of such Advances and any unpaid Servicing Fees, remaining outstanding
(which items shall be deemed to have been paid or reimbursed to the Master
Servicer in connection with such purchase); provided, however, that any such
purchase with respect to the Additional Servicing Fee Mortgage Loans shall be
subject to the rights of the applicable Designated Sub-Servicer to continue to
sub-service such Mortgage Loans and the rights of Archon Financial, L.P., the
applicable Designated Sub-Servicer and the Master Servicer to receive or retain
their applicable portion, if any, of the Additional Servicing Fee pursuant to
the applicable Designated Sub-Servicer Agreement, and (ii) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in REMIC I; provided, however, that in no event
shall the trust created hereby continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
The Master Servicer or the Depositor each may, at its option,
elect to purchase all of the Mortgage Assets and each REO Property remaining in
the Trust Fund as contemplated by clause (i) of the preceding paragraph by
giving written notice to the other parties hereto no later than 60 days prior to
the anticipated date of purchase; provided, however, that the Master Servicer or
the Depositor may so elect to purchase all of the Mortgage Assets and each REO
Property remaining in REMIC I only if the aggregate Stated Principal Balance of
the Mortgage Assets 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 Assets set forth in the Preliminary Statement. Such option shall be
exercisable by each such Person in the priority in which such Person is listed
in the immediately foregoing sentence. In the event that the Master Servicer or
the Depositor purchases all of the Mortgage Assets and each REO Property
remaining in REMIC I in accordance with the preceding sentence, the Master
Servicer or the Depositor, as applicable, shall deposit in the Distribution
Account not later than the Master Servicer Remittance Date relating to the
Distribution Date on which the final distribution on the Certificates is to
occur, an amount in immediately available funds equal to the above-described
purchase price (exclusive of any portion thereof that would be payable to any
Person other than the Certificateholders pursuant to Section 3.05(a) if on
deposit in the Certificate Account, which portion shall be deposited in the
Certificate Account). In addition, the Master Servicer shall 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 deposits have been made, the Trustee shall
release or cause to be released to the Master Servicer or the Depositor, as
applicable, the Mortgage Files for the remaining Mortgage Assets and any Reserve
Funds and Escrow Payments in any Reserve Accounts or Servicing Account, as
applicable, and shall execute all assignments, endorsements and other
instruments furnished to it by the Master Servicer or the Depositor, as
applicable, as shall be necessary to effectuate transfer of the
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Mortgage Assets and REO Properties remaining in REMIC I. All Credit Files for
the remaining Mortgage Loans and REO Properties shall be delivered to the
purchasing entity.
Notice of any termination shall be given promptly by the
Trustee by letter to Certificateholders and, if not previously notified pursuant
to the preceding paragraph, to the other parties hereto mailed (a) in the event
such notice is given in connection with the Master Servicer's or the Depositor's
purchase of all of the Mortgage Assets 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.
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)-(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 not distributed on such Distribution Date shall be set aside and held
uninvested in trust for the benefit of Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner, and shall be disposed
of in accordance with the last paragraph of Section 4.01(g).
SECTION 9.02 ADDITIONAL TERMINATION REQUIREMENTS.
(a) In the event the Master Servicer or the Depositor
purchases all of the Mortgage Loans and each REO Property remaining in REMIC I
as provided in Section 9.01, the Trust Fund (and, accordingly, REMIC I, REMIC II
and REMIC III) shall be terminated in accordance with the following additional
requirements, unless the Master Servicer or the Depositor, as the case may be,
obtains at its own expense and delivers to the Trustee an Opinion of Counsel,
addressed to the Depositor, the Master Servicer and the Trustee, to the effect
that the failure of the Trust Fund to comply with the requirements of this
Section 9.02 will not (subject to Section 10.01(f)) result in the imposition of
taxes on "prohibited transactions" of REMIC I, REMIC II or REMIC III as defined
in Section 860F of the Code or cause REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for
each of REMIC I, REMIC II and REMIC III pursuant to Treasury regulation
Section 1.860F-1 and shall satisfy all requirements of a qualified
liquidation under Section 860F of the Code and any regulations
thereunder;
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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
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' fees, and costs of any such proceeding and any liability resulting
therefrom shall be expenses of
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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),
determine that the monetary exposure to REMIC I, REMIC II and REMIC III is not
material and in its or their sole discretion to indemnify, to the extent
reasonably acceptable to the
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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 Assets
(except in connection with (i) the default, imminent default or foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy
of REMIC I, REMIC II or REMIC III, (iii) the termination of the Trust Fund
pursuant to Article IX of this Agreement or (iv) a purchase of Mortgage Loans
pursuant to or as contemplated by Section 2.03 or 3.18 of this Agreement) or
acquire any assets for the Trust Fund or sell or dispose of any investments in
the Certificate Account, the Distribution Account, or the REO Account for gain,
or accept any contributions to the Trust Fund after the Closing Date, unless it
has received an Opinion of Counsel that such sale, disposition, substitution or
acquisition will not (a) affect adversely the status of REMIC I, REMIC II or
REMIC III as a REMIC or, (b) subject to Section 10.01(f), cause REMIC I, REMIC
II or REMIC III to be subject to a tax on "prohibited transactions" or
"contributions" pursuant to the REMIC Provisions.
(m) The Trustee hereby agrees to administer the Bladensburg
REMIC, the Corners REMIC and the Woodbury REMIC, each in accordance with the
terms of its underlying REMIC Declaration, without any right to additional
compensation under this Agreement. Unless otherwise provided in, or in conflict
with the intent of, the applicable underlying REMIC Declaration, the Trustee
shall administer the Bladensburg REMIC, the Corners REMIC and the Woodbury REMIC
in accordance with the provisions of Section 10.01. The Trustee is permitted to
be reimbursed for any expenses attributable to its administration of any of such
REMICs to the same extent that the Trustee is permitted to be reimbursed in this
Section 10.01 for any expenses attributable to its administration of REMIC I,
REMIC II or REMIC III. Such reimbursement amounts shall be deemed to be a
reduction of either interest or principal, as the case may be, that was paid and
received with respect to the Bladensburg REMIC Asset, the Corners REMIC Asset or
the Woodbury REMIC Asset, as applicable.
SECTION 10.02 DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER,
TRUSTEE TO COOPERATE.
(a) The Depositor shall provide or cause to be provided to the
Trustee, within ten days after the Closing Date, all information or data that
the Trustee reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including, without limitation,
the price, yield, prepayment assumption and projected cash flow of the
Certificates.
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(b) The Master Servicer, the Special Servicer and the
Depositor shall each furnish such reports, certifications and information, and
access to such books and records maintained thereby, as may relate to the
Certificates or the Trust Fund and as shall be reasonably requested by the
Trustee in order to enable it to perform its duties hereunder.
SECTION 10.03 GRANTOR TRUST ADMINISTRATION.
(a) The Trustee shall treat the Grantor Trust, for tax return
preparation purposes, as a grantor trust under the Code and, if necessary, under
applicable state law and will file appropriate federal or state Tax Returns for
each taxable year ending on or after the last day of the calendar year in which
the Certificates are issued.
(b) The Trustee shall pay out of its own funds any and all
routine tax administration expenses of the Trust Fund incurred with respect to
the Grantor Trust (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the Internal Revenue Service or state tax authorities
which extraordinary expenses shall be payable or reimbursable to the Trustee
from the Trust Fund unless otherwise provided in Section 10.01(e) or 10.01(f)).
(c) The Trustee shall prepare, sign and file when due all of
the Tax Returns in respect of the Grantor Trust. The expenses of preparing and
filing such returns shall be borne by the Trustee without any right of
reimbursement therefor. The other parties hereto shall provide 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
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such action or to refrain from taking any action for the benefit of the
Certificateholders) to the effect that the contemplated action will not result
in an Adverse Grantor Trust Event. None of the other parties hereto shall take
any action or fail to take any action (whether or not authorized hereunder) as
to which the Trustee has advised it in writing that the Trustee has received or
obtained an Opinion of Counsel to the effect that an Adverse Grantor Trust Event
could result from such action or failure to act. In addition, prior to taking
any action with respect to the Grantor Trust, or causing the Trust Fund to take
any action, that is not expressly permitted under the terms of this Agreement,
the Master Servicer and the Special Servicer shall consult with the Trustee or
its designee, in writing, with respect to whether such action could cause an
Adverse Grantor Trust Event to occur. Neither the Master Servicer nor the
Special Servicer shall have any liability hereunder for any action taken by it
in accordance with the written instructions of the Trustee. The Trustee may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund or the Trustee.
Notwithstanding any provision of this Agreement to the contrary, the Grantor
Trust Assets shall not be subject to any expenses, costs or other charges that
are attributable to the assets or activities of REMIC I, REMIC II or REMIC III.
(f) If any tax is imposed on the Grantor Trust, such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees) shall be charged to and paid by: (i)
the Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.03; (ii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.03; (iii) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.03; or (iv) the portion of the Trust Fund constituting the
Grantor Trust in all other instances.
(g) The Trustee shall, for federal income tax purposes,
maintain books and records with respect to the Grantor Trust on a calendar year
and on an accrual basis.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 AMENDMENT.
(a) This Agreement may be amended from time to time by the
parties hereto, without the consent of any of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or
therein, which may be inconsistent with any other provisions herein or
therein or to correct any error,
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or desirable to maintain the
qualification of REMIC I, REMIC II or REMIC III as a REMIC at all times
that any Certificate is outstanding or to avoid or
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minimize the risk of the imposition of any tax on REMIC I, REMIC II or
REMIC III pursuant to the Code that would be a claim against the Trust
Fund, provided that the Trustee has received an Opinion of Counsel to
the effect that (A) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition
of any such tax and (B) such action will not adversely affect in any
material respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the
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
and (C) such change shall not result in the downgrade, qualification or
withdrawal of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency to such
effect,
(v) to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests," provided that such change shall not, as evidenced by an
Opinion of Counsel, cause either the Trust Fund or any of the
Certificateholders (other than the 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, or
(vi) to modify, eliminate or add any provision to this
Agreement to provide for a book-entry registration system for the
Certificates, or
(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, provided that such
action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder.
(b) This Agreement may also be amended from time to time by
the parties hereto with the consent of the Holders of Certificates evidencing in
the aggregate not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate, or
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
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(iii) modify the definition of "Servicing Standard" without
the consent of the Holders of all Certificates then outstanding.
(c) Notwithstanding the foregoing, the Trustee will not be
entitled to consent to any amendment hereto without having first received an
Opinion or Opinions of Counsel to the effect that (i) such amendment is
permitted pursuant to the terms of this Agreement and (ii) such amendment or the
exercise of any power granted to the Master Servicer, the Special Servicer, the
Depositor, the Trustee or any other specified person in accordance with such
amendment will not result in the imposition of a tax on REMIC I, REMIC II or
REMIC III pursuant to the REMIC Provisions or cause REMIC I, REMIC II or REMIC
III to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the
Trustee shall furnish a statement describing the amendment to each
Certificateholder.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into
any amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered
pursuant to Section 11.01(a) or (c) shall be borne by the Person seeking the
related amendment, except that if the Master Servicer or the Trustee requests
any amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 11.01(a) or (c) shall be payable out of the
Certificate Account.
SECTION 11.02 RECORDATION OF AGREEMENT; COUNTERPARTS.
(a) To the extent permitted by applicable law, this Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund on direction by
the Trustee, such direction to be given by the Trustee only upon the Trustee's
receipt of an Opinion of Counsel to be obtained by the party requesting such
recordation (the cost of which may be paid out of the Certificate Account) to
the effect that such recordation materially and beneficially affects the
interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
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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
Asset, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it under this
Section 11.03(c) or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the Holders of
Certificates unless such Holders have offered to the Trustee reasonable security
against the costs, expenses and liabilities which may be incurred therein or
hereby. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 11.03(c), each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04 GOVERNING LAW.
THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS XX XXX XXXXX XX
000
XXX XXXX 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, the Corporate Trust Office; (iv) in the case of the Special Servicer,
000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, telecopy number (415)
391-2949, Attention: CMBS Portfolio Manager (with a copy to General Counsel);
(v) in the case of the Rating Agencies, (A) Standard & Poor's Ratings Services,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage
Surveillance Manager, telecopy number: (000) 000-0000, (B) Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage
Surveillance Dept., telecopy number: (000) 000-0000; and (vi) in the case of the
Underwriters, (A) Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention Xxxx Xxxxxxx telecopy number: (000) 000-0000 and (B) Deutsche Bank
Securities Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention Xxxx Xxxxxx,
telecopy number: (000) 000-0000 or as to each such Person such other address as
may hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
SECTION 11.06 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 GRANT OF A SECURITY INTEREST.
The Depositor intends that the conveyance of the Depositor's
right, title and interest in and to the Mortgage Assets 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
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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 Assets (including all
Replacement Mortgage Loans), all principal and interest received or receivable
with respect to the Mortgage Assets (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 Commonwealth of Pennsylvania
promptly following the initial issuance of the Certificates, and the Master
Servicer shall prepare and file at each such office, and the Trustee shall
execute, continuation statements thereto, in each case within six months prior
to the fifth anniversary of the immediately preceding filing. The Depositor
shall cooperate in a reasonable manner with the Trustee and the Master Servicer
in preparing and filing such continuation statements. This Section 11.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the
applicable Uniform Commercial Code.
SECTION 11.08 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. No other person, including, without limitation, any
Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim
under this Agreement.
SECTION 11.09 ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.10 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;
179
(v) a copy of the notice given pursuant to Section 2.03(a) and
the repurchase of Mortgage Loans by a Mortgage Loan Seller pursuant to
Section 6 of each Mortgage Loan Purchase Agreement or by GMACCM
pursuant to Section 4 of each Supplemental Agreement;
(vi) the final payment to any Class of Certificateholders; and
(vii) any default by FHLMC in the payment of amounts due under
the Mortgage Certificate that is not remedied within two Business Days
after the applicable Due Date.
(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 such additional information to each Rating Agency upon
request is in its possession or reasonably available to it.
180
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.,
Depositor
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer and Special Servicer
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
XXXXX FARGO BANK MINNESOTA, N.A.,
Trustee and Securities Intermediary
By: /s/ Xxxx X. Xxxx
------------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
000
XXXXX XX XXX XXXX )
) ss.
COUNTY OF NEW YORK )
On the 17th day of August, 2000, before me, a notary public in
and for said State, personally appeared Xxxxx Xxxxxxx known to me to be a Vice
President of GMAC COMMERCIAL MORTGAGE SECURITIES, INC., one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxx
------------------------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 17th day of August, 2000, before me, a notary public in
and for said State, personally appeared Xxxxx Xxxxxxx known to me to be a Vice
President of GMAC COMMERCIAL MORTGAGE CORPORATION, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxx
------------------------------------------
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On the 17th day of August, 2000, before me, a notary public in
and for said State, personally appeared Xxxx X. Xxxx known to me to be a Vice
President of XXXXX FARGO BANK MINNESOTA, N.A., a national chartered bank duly
organized, validly existing and in good standing under the United States of
America that executed the within instrument, and also known to me to be the
person who executed it on behalf of such nationally chartered bank, and
acknowledged to me that such nationally chartered bank executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxx
------------------------------------------
Notary Public
[Notarial Seal]
X-0-0
XXXXXXX X-0
FORM OF CLASS X CERTIFICATE
CLASS X MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Variable Certificate Notional Amount of this Class X
Certificate as of the Issue Date: $_____________
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class X
August 1, 2000 Certificates as of the Issue Date: $773,760,240
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage
Date for such Mortgage Loan in August 2000 Assets as of their respective Cut-off Dates, after
deducting payments of principal due on or before
such date, whether or not received: $773,760,240
Issue Date: August 17, 2000
First Distribution Date: September 18, 2000 Trustee: Xxxxx Fargo Bank Minnesota, N.A.
Master Servicer and Special Servicer: 144A CUSIP No. 361849 MQ 2
GMAC Commercial Mortgage Corporation
000X XXXX Xx. XX000000XX00
Certificate No. X-___
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, N.A. OR ANY OF THEIR RESPECTIVE
A-1-1
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.
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 HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. FOR INFORMATION REGARDING THE ISSUE PRICE AND YIELD
TO MATURITY OF THIS CERTIFICATE AND THE AMOUNT OF OID PER INITIAL CERTIFICATE
NOTIONAL AMOUNT, CONTACT XXXXX FARGO BANK MINNESOTA, N.A. AT THEIR ADDRESS SET
FORTH IN THE AGREEMENT.
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 Certificate (obtained by dividing
the notional principal amount of this Class X Certificate (its "Certificate
Notional Amount") as of the Issue Date by the aggregate notional principal
balance of all the Class X Certificates (their "Class Notional Amount") as of
the Issue Date) in that certain beneficial ownership interest evidenced by all
the Class X 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, N.A., as Trustee and Securities Intermediary. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 16th day of each month or, if such 16th 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 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class X 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
A-1-2
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 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
2000-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets and the payment of interest on such advances and expenses.
The Class X 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 Certificates are exchangeable for new Class X 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 X 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 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 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 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 Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class X 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 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 Certificate without registration
or qualification. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify
A-1-3
the Class X 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 Certificate without registration or qualification. Any
Class X Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class X 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 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: either (A) (1) such
Plan qualifies as an accredited investor within the meaning of United States
Department of Labor Prohibited Transaction Exemption ("PTE") 94-29 (granted to
certain affiliates of the Depositor) and (2) at the time of such transfer, the
Senior Certificates continue to be rated in one of the top three rating
categories by at least one Rating Agency or (B) 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.
No service charge will be imposed for any registration of
transfer or exchange of Class X 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 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 Securities Intermediary, 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 Securities Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Asset Pool at the time of purchase being less than 1% of the aggregate Cut-off
Date Principal Balance of the Mortgage Asset Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Securities Intermediary thereunder and the rights of the
Certificateholders thereunder, at any
A-1-4
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 Voting Rights allocated to the affected Classes. 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, N.A.,
as Trustee
By:
-------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated: August 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
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-1 CERTIFICATE
CLASS A-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of
7.273% per annum this Class A-1 Certificate as of
the Issue Date: $_______________
Date of Pooling and Servicing Agreement: Certificate Principal Balance of
August 1, 2000 all the Class A-1 Certificates
as of the Issue Date:
$123,801,000
Cut-off Date: With respect to any Mortgage Aggregate unpaid principal
Loan, the Due Date for such Mortgage Loan balance of the Mortgage Asset
in August 2000 Pool as of the Cut-off Date,
after deducting payments of
principal due on or before such
date, whether or not received:
$773,760,240
Issue Date: August 17, 2000 Trustee: Xxxxx Fargo Bank
Minnesota, N.A.
First Distribution Date: CUSIP No. 000000XX 8
September 18, 2000
Master Servicer and Special Servicer: ISIN No. US361849MJ89
GMAC Commercial Mortgage Corporation
Certificate No. A-1-___
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-2-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, N.A. 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.
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 AND CLASS O 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, and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 16th day of each month or, if such 16th 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)
A-2-2
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
2000-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets 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: either (A) (1) such
Plan qualifies as an accredited investor within the meaning of United States
Department of Labor Prohibited Transaction Exemption ("PTE") 94-29 (granted to
certain affiliates of the Depositor) and (2) at the time of such transfer, the
Senior Certificates continue to be rated in one of the top three rating
categories by at least one Rating Agency or (B) 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.
A-2-3
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 Securities Intermediary, 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 Securities Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Asset Pool at the time of purchase being less than 1% of the aggregate Cut-off
Date Principal Balance of the Mortgage Asset Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Securities Intermediary 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?% of the Voting Rights allocated to the
affected Classes. 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-2-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
---------------------------------
Authorized Officer
A-2-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ___________________________.
Distributions made by check (such check to be made payable to
_____________) and all applicable statements and notices should be mailed to
________________________________________________________________________________
___________________________.
This information is provided by, __________________ the
assignee named above, or ____________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of
Lesser of 7.455% per annum or the this Class A-2 Certificate as of
Weighted Average Net Mortgage Rate the Issue Date: $_______________
Date of Pooling and Servicing Agreement: Certificate Principal Balance of
August 1, 2000 all the Class A-2 Certificates
as of the Issue Date:
$485,535,000
Cut-off Date: With respect to any Aggregate unpaid principal
Mortgage Loan, the Due Date for balance of the Mortgage Asset
such Mortgage Loan in August 2000 Pool as of the Cut-off Date,
after deducting payments of
principal due on or before such
date, whether or not received:
$773,760,240
Issue Date: August 17, 2000
First Distribution Date: Trustee: Xxxxx Fargo Bank
September 18, 2000 Minnesota, N.A.
Master Servicer and Special Servicer: CUSIP No. 361849 MK 5
GMAC Commercial Mortgage Corporation
Certificate No. A-2-___ ISIN No. US361849MK52
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-3-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, N.A. 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.
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 AND CLASS O 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, and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 16th day of each month or, if such 16th 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)
A-3-2
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
2000-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets 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: either (A) (1) such
Plan qualifies as an accredited investor within the meaning of United States
Department of Labor Prohibited Transaction Exemption ("PTE") 94-29 (granted to
certain affiliates of the Depositor) and (2) at the time of such transfer, the
Senior Certificates continue to be rated in one of the top three rating
categories by at least one Rating Agency or (B) 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.
A-3-3
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 Securities Intermediary, 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 Securities Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Asset Pool at the time of purchase being less than 1% of the aggregate Cut-off
Date Principal Balance of the Mortgage Asset Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Securities Intermediary 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?% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-3-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
-------------------------------
Authorized Officer
A-3-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ___________________________.
Distributions made by check (such check to be made payable to
_____________) and all applicable statements and notices should be mailed to
________________________________________________________________________________
___________________________.
This information is provided by, __________________ the
assignee named above, or ____________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS B CERTIFICATE
CLASS B MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
Lesser of 7.594% per annum or the Class B Certificate as of the Issue
Weighted Average Net Mortgage Rate Date: $_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class
August 1, 2000 B Certificates as of the Issue Date:
$30,950,000
Cut-off Date: With respect to any Aggregate unpaid principal balance of
Mortgage Loan, the Due Date the Mortgage Asset Pool as of the
for such Mortgage Loan in August 2000 Cut-off Date, after deducting payments
of principal due on or before such date,
Issue Date: August 17, 2000 whether or not received: $773,760,240
First Distribution Date: September 18, 2000 Trustee: Xxxxx Fargo Bank Minnesota, N.A.
Master Servicer and Special Servicer: CUSIP No. 361849 ML 3
GMAC Commercial Mortgage Corporation
ISIN No. US361849ML36
Certificate No. B-___
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE
A-4-1
CORPORATION, XXXXX FARGO BANK MINNESOTA, N.A. 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 AND CLASS X
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN 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 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 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 AND CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION
WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class B Certificate (obtained by dividing
the principal balance of this Class B Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class B Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust 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, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th day is not a Business Day, the
Business Day immediately following (each, a
A-4-2
"Distribution Date"), commencing on the First Distribution Date specified
above, to the Person in whose name this Certificate is registered at the close
of business on the last Business Day of the month immediately preceding the
month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of the Class B Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on any Class B Certificate will be made by the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets 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.
A-4-3
Any purchaser of a Class B Certificate 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 Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) 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 (b) 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
B 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.
No service charge will be imposed for any registration of transfer
or exchange of Class B Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class B Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all
A-4-4
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-4-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
A-4-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following
address:
-----------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Dated:
----------------------------------------------
Signature by or on behalf of Assignor
----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_________________________________________ for the account of________________.
Distributions made by check (such check to be made payable to
___________________________________) and all applicable statements and notices
should be mailed to .
This information is provided by, __________________ the assignee
named above, or ____________________________________________________, as its
agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS C CERTIFICATE
CLASS C MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class C
Lesser of 7.740% per annum or the Certificate as of the Issue Date:
Weighted Average Net Mortgage Rate $_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class C
August 1, 2000 Certificates as of the Issue Date: $28,049,000
Aggregate unpaid principal balance of the
Cut-off Date: With respect to any Mortgage Mortgage Asset Pool as of the Cut-off Date,
Loan, the Due Date for such Mortgage Loan in after deducting payments of principal due on or
August 2000 before such date, whether or not received:
$773,760,240
Issue Date: August 17, 2000
Trustee: Xxxxx Fargo Bank Minnesota, N.A.
First Distribution Date: September 18, 2000
CUSIP No. 361849 MM 1
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation ISIN No. US361849MM19
Certificate No. C-___
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-5-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, N.A. 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 X-0, XXXXX X-0, CLASS X 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 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 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 AND CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION
WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class C Certificate (obtained by dividing
the principal balance of this Class C Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class C Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust 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, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
A-5-2
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class C Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class C
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have provided the Trustee with wiring instructions no less than five
Business Days prior to the Record Date for such distribution (which wiring
instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets 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 C Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
A-5-3
Any purchaser of a Class C Certificate 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 Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) 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 (b) 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
C 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.
No service charge will be imposed for any registration of transfer
or exchange of Class C Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class C Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all
A-5-4
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-5-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
A-5-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
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 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class D
Lesser of 7.836% per annum or the Certificate as of the Issue Date:
Weighted Average Net Mortgage Rate $_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class D
August 1, 2000 Certificates as of the Issue Date: $10,639,000
Aggregate unpaid principal balance of the
Cut-off Date: With respect to any Mortgage Mortgage Asset Pool as of the Cut-off Date,
Loan, the Due Date for such Mortgage Loan in after deducting payments of principal due on or
August 2000 before such date, whether or not received:
$773,760,240
Issue Date: August 17, 2000
Trustee: Xxxxx Fargo Bank Minnesota, N.A.
First Distribution Date: September 18, 2000
CUSIP No. 361849 MN 9
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation ISIN No. US361849MN91
Certificate No. D-___
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-6-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, N.A. 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, 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 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 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 AND CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO
ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN
CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED
EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class D Certificate (obtained by dividing
the principal balance of this Class D Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class D Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
A-6-2
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th 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 (as to the Class
D Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class D Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class D Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well), or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets 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
A-6-3
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Any purchaser of a Class D Certificate 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 Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) 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 (b) 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
D 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary thereunder and the rights of the Certificateholders
thereunder, at any
A-6-4
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?% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-6-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-6-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
-------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_________________________________________ for the account of .
Distributions made by check (such check to be made payable to
___________________________________) and all applicable statements and notices
should be mailed to.
This information is provided by, __________________ the assignee
named above, or ____________________________________________________, as its
agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS E CERTIFICATE
CLASS E MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class E
Weighted Average Net Mortgage Rate Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Agreement:
August 1, 2000 Class Principal Balance of all the Class E
Certificates as of the Issue Date: $19,344,000
Cut-off Date: With respect to any Mortgage Loan,
the Due Date for such Mortgage Loan in August 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Asset Pool as of the Cut-off Date,
Issue Date: August 17, 2000 after deducting payments of principal due on or
before such date, whether or not received:
First Distribution Date: September 18, 2000 $773,760,240
Master Servicer and Special Servicer: Trustee: Xxxxx Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
CUSIP No. 361849 MP 4
Certificate No. E-___
ISIN No. US361849MP40
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE
A-7-1
CORPORATION, XXXXX FARGO BANK MINNESOTA, N.A. 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, 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 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 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 BALANCE OF THE CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M, CLASS N AND CLASS O 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 E Certificate (obtained by dividing
the principal balance of this Class E Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class E Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class E
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th day is not a Business Day, the
Business Day immediately following (each, a
A-7-2
"Distribution Date"), commencing on the First Distribution Date specified
above, to the Person in whose name this Certificate is registered at the close
of business on the last Business Day of the month immediately preceding the
month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of the Class E Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on any Class E Certificate will be made by the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets 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.
A-7-3
Any purchaser of a Class E Certificate 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 Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) 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 (b) 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
E 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.
No service charge will be imposed for any registration of transfer
or exchange of Class E Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class E Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all
A-7-4
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-7-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
---------------------------------------
Authorized Officer
A-7-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following
address:
Dated:
--------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_________________________________________ for the account of .
Distributions made by check (such check to be made payable to
___________________________________) and all applicable statements and notices
should be mailed to .
This information is provided by, __________________ the assignee
named above, or ____________________________________________________, as its
agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS F CERTIFICATE
CLASS F MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class F
Weighted Average Net Mortgage Rate Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Agreement:
August 1, 2000 Class Principal Balance of all the Class F
Certificates as of the Issue Date: $9,672,000
Cut-off Date: With respect to any Mortgage
Loan, the Due Date for such Mortgage Loan in Aggregate unpaid principal balance of the
August 2000 Mortgage Asset Pool as of the Cut-off Date,
after deducting payments of principal due on or
Issue Date: August 17, 2000 before such date, whether or not received:
$773,760,240
First Distribution Date: September 18, 2000
Trustee: Xxxxx Fargo Bank Minnesota, N.A.
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation 144A CUSIP No. 361849 MR 0
Certificate No. F-___ 000X 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 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
A-8-1
CORPORATION, XXXXX FARGO BANK MINNESOTA, N.A. 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, 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 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 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 AND CLASS O 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. 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,
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GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
and Xxxxx Fargo Bank Minnesota, N.A., as Trustee and Securities Intermediary.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the 16th
day of each month or, if such 16th day is not a Business Day, the Business Day
immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class F Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class F
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have provided the Trustee with wiring instructions no less than five
Business Days prior to the Record Date for such distribution (which wiring
instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets 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.
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As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class F Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class F Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. Any purchaser of a Class F Certificate shall be deemed to have
represented by such purchase that it is a "qualified institutional buyer" as
that term is defined in Rule 144A ("Rule 144A") under the Securities Act, that
it is aware that the sale to it is being made in reliance on Rule 144A and that
it is acquiring the Class F Certificates for its own account or for the account
of a qualified institutional buyer, and that it understands that such Class F
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate 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.
Any purchaser of a Class F Certificate 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 Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) 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 (b) 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
F 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
A-8-4
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.
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 Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. 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.
A-8-5
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, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
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Authorized Officer
A-8-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following
address:
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Dated:
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Signature by or on behalf of Assignor
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Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _______________________________
for the account of .
Distributions made by check (such check to be made payable to
___________________________________) and all applicable statements and notices
should be mailed to .
This information is provided by, __________________ the assignee
named above, or ____________________________________________________, as its
agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS G CERTIFICATE
CLASS G MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class G
7.0000% Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Agreement:
August 1, 2000 Class Principal Balance of all the Class G
Certificates as of the Issue Date: $25,147,000
Cut-off Date: With respect to any Mortgage
Loan, the Due Date for such Mortgage Loan in Aggregate unpaid principal balance of the
August 2000 Mortgage Asset Pool as of the Cut-off Date,
after deducting payments of principal due on or
Issue Date: August 17, 2000 before such date, whether or not received:
$773,760,240
First Distribution Date: September 18, 2000
Trustee: Xxxxx Fargo Bank Minnesota, N.A.
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation 144A CUSIP No. 361849 MS 8
Certificate No. G-___ 000X 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 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
A-9-1
CORPORATION, XXXXX FARGO BANK MINNESOTA, N.A. 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, 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 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 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 HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. FOR INFORMATION REGARDING THE ISSUE PRICE AND
YIELD TO MATURITY OF THIS CERTIFICATE AND THE AMOUNT OF OID PER INITIAL
CERTIFICATE PRINCIPAL AMOUNT, CONTACT XXXXX FARGO BANK MINNESOTA, N.A. AT THEIR
ADDRESS SET FORTH IN THE AGREEMENT
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 AND CLASS O 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.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
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This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class G Certificate (obtained by dividing
the principal balance of this Class G Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class G Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class G Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class G
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have provided the Trustee with wiring instructions no less than five
Business Days prior to the Record Date for such distribution (which wiring
instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
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 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets and the payment of interest on such advances and
expenses.
A-9-3
The Class G Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class G Certificates are exchangeable for new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class G Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. Any purchaser of a Class G Certificate shall be deemed to have
represented by such purchase that it is a "qualified institutional buyer" as
that term is defined in Rule 144A ("Rule 144A") under the Securities Act, that
it is aware that the sale to it is being made in reliance on Rule 144A and that
it is acquiring the Class G Certificates for its own account or for the account
of a qualified institutional buyer, and that it understands that such Class G
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for 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.
Any purchaser of a Class G Certificate 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 Servicer to any
obligation in addition to those undertaken in the Agreement, and the following
conditions are met: (a) the source of funds
A-9-4
used to purchase such Certificate is an "insurance company general account" (as
such term is defined in PTCE 95-60) and (b) 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 G 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.
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 Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. 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-9-5
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-9-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Officer
A-9-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following
address:
----------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Dated:
--------------------------------------------
Signature by or on behalf of Assignor
--------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_________________________________________ for the account of .
Distributions made by check (such check to be made payable to
___________________________________) and all applicable statements and notices
should be mailed to .
This information is provided by, __________________ the assignee
named above, or ____________________________________________________, as its
agent.
A-9-8
EXHIBIT A-10
FORM OF CLASS H CERTIFICATE
CLASS H MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class H
7.0000% per annum Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Agreement:
August 1, 2000
Class Principal Balance of all the Class H
Cut-off Date: With respect to any Mortgage Certificates as of the Issue Date: $5,804,000
Loan, the Due Date for such Mortgage Loan in
August 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Asset Pool as of the Cut-off Date,
Issue Date: August 17, 2000 after deducting payments of principal due on or
before such date, whether or not received:
First Distribution Date: September 18, 2000 $773,760,240
Master Servicer and Special Servicer: Trustee: Xxxxx Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
144A CUSIP No. 361849 MT 6
Certificate No. H-___
000X 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 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
A-10-1
CORPORATION, XXXXX FARGO BANK MINNESOTA, N.A. 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, 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 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 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 HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. FOR INFORMATION REGARDING THE ISSUE PRICE AND
YIELD TO MATURITY OF THIS CERTIFICATE AND THE AMOUNT OF OID PER INITIAL
CERTIFICATE PRINCIPAL AMOUNT, CONTACT XXXXX FARGO BANK MINNESOTA, N.A. AT THEIR
ADDRESS SET FORTH IN THE AGREEMENT.
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 AND CLASS O 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-10-2
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class H Certificate (obtained by dividing
the principal balance of this Class H Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class H Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class H
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class H Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class H
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have provided the Trustee with wiring instructions no less than five
Business Days prior to the Record Date for such distribution (which wiring
instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets and the payment of interest on such advances and
expenses.
A-10-3
The Class H Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class H Certificates are exchangeable for new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class H Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. Any purchaser of a Class H Certificate shall be deemed to have
represented by such purchase that it is a "qualified institutional buyer" as
that term is defined in Rule 144A ("Rule 144A") under the Securities Act, that
it is aware that the sale to it is being made in reliance on Rule 144A and that
it is acquiring the Class H Certificates for its own account or for the account
of a qualified institutional buyer, and that it understands that such Class H
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate 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.
Any purchaser of a Class H Certificate 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 Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) the source of funds
A-10-4
used to purchase such Certificate is an "insurance company general account" (as
such term is defined in PTCE 95-60) and (b) 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 H 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.
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 Securities Intermediary, 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 Securities Intermediary
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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. 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-10-5
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-10-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-10-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following
address:
----------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_________________________________________ for the account of .
Distributions made by check (such check to be made payable to
___________________________________) and all applicable statements and notices
should be mailed to .
This information is provided by, __________________ the assignee
named above, or ____________________________________________________, as its
agent.
A-10-8
EXHIBIT A-11
FORM OF CLASS J CERTIFICATE
CLASS J MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class J
7.0000% per annum Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Agreement:
August 1, 2000 Class Principal Balance of all the Class J
Certificates as of the Issue Date: $5,803,000
Cut-off Date: With respect to any Mortgage
Loan, the Due Date for such Mortgage Loan in Aggregate unpaid principal balance of the
August 2000 Mortgage Asset Pool as of the Cut-off Date,
after deducting payments of principal due on or
Issue Date: August 17, 2000 before such date, whether or not received:
$773,760,240
First Distribution Date: September 18, 2000
Trustee: Xxxxx Fargo Bank Minnesota, N.A.
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation 144A CUSIP No. 361849 MU 3
Certificate No. J-___ 000X 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 PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-11-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, N.A. 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, 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 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 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 HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. FOR INFORMATION REGARDING THE ISSUE PRICE AND
YIELD TO MATURITY OF THIS CERTIFICATE AND THE AMOUNT OF OID PER INITIAL
CERTIFICATE PRINCIPAL AMOUNT, CONTACT XXXXX FARGO BANK MINNESOTA, N.A. AT THEIR
ADDRESS SET FORTH IN THE AGREEMENT.
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 BALANCE OF THE CLASS K, CLASS L,
CLASS M, CLASS N AND CLASS O 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
A-11-3
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class J Certificate (obtained by dividing
the principal balance of this Class J Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class J Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class J
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class J Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class J
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have provided the Trustee with wiring instructions no less than five
Business Days prior to the Record Date for such distribution (which wiring
instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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
A-11-4
advances made, or certain expenses incurred, with respect to the Mortgage
Assets and the payment of interest on such advances and expenses.
The Class J Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class J Certificates are exchangeable for new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class J Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. Any purchaser of a Class J Certificate shall be deemed to have
represented by such purchase that it is a "qualified institutional buyer" as
that term is defined in Rule 144A ("Rule 144A") under the Securities Act, that
it is aware that the sale to it is being made in reliance on Rule 144A and that
it is acquiring the Class J Certificates for its own account or for the account
of a qualified institutional buyer, and that it understands that such Class J
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is 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 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
A-11-4
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 Servicer to any obligation in addition to those
undertaken in the Agreement, and the following conditions are met: (a) 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 (b) 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.
No service charge will be imposed for any registration of transfer
or exchange of Class J Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class J Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of
designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
A-11-5
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-11-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
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-12
FORM OF CLASS K CERTIFICATE
CLASS K MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class K
7.0000% per annum Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Agreement:
August 1, 2000 Class Principal Balance of all the Class K
Certificates as of the Issue Date: $8,705,000
Cut-off Date: With respect to any Mortgage Loan,
the Due Date for such Mortgage Loan in August 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Asset Pool as of the Cut-off Date,
Issue Date: August 17, 2000 after deducting payments of principal due on or
before such date, whether or not received:
First Distribution Date: September 18, 2000 $773,760,240
Master Servicer and Special Servicer: Trustee: Xxxxx Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
144A CUSIP No. 361849 MV 1
Certificate No. K-___
000X 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 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
A-12-1
CORPORATION, XXXXX FARGO BANK MINNESOTA, N.A. 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, 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 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 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 HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. FOR INFORMATION REGARDING THE ISSUE PRICE AND
YIELD TO MATURITY OF THIS CERTIFICATE AND THE AMOUNT OF OID PER INITIAL
CERTIFICATE PRINCIPAL AMOUNT, CONTACT XXXXX FARGO BANK MINNESOTA, N.A. AT THEIR
ADDRESS SET FORTH IN THE AGREEMENT.
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 BALANCE OF THE CLASS L, CLASS
M, CLASS N AND CLASS O 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-12-2
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class K Certificate (obtained by dividing
the principal balance of this Class K Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class K Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class K
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class K Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class K
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have provided the Trustee with wiring instructions no less than five
Business Days prior to the Record Date for such distribution (which wiring
instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets and the payment of interest on such advances and
expenses.
A-12-3
The Class K Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class K Certificates are exchangeable for new Class K Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class K Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class K Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class K Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. Any purchaser of a Class K Certificate shall be deemed to have
represented by such purchase that it is a "qualified institutional buyer" as
that term is defined in Rule 144A ("Rule 144A") under the Securities Act, that
it is aware that the sale to it is being made in reliance on Rule 144A and that
it is acquiring the Class K Certificates for its own account or for the account
of a qualified institutional buyer, and that it understands that such Class K
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate 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 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 Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) the source of funds
A-12-4
used to purchase such Certificate is an "insurance company general account" (as
such term is defined in PTCE 95-60) and (b) 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.
No service charge will be imposed for any registration of transfer
or exchange of Class K Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class K Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. 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-12-5
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-12-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
----------------------------------------
Authorized Officer
A-12-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
-------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Dated:
--------------------------------------------
Signature by or on behalf of Assignor
--------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_________________________________________ for the account of .
Distributions made by check (such check to be made payable to
___________________________________) and all applicable statements and notices
should be mailed to .
This information is provided by, __________________ the
assignee named above, or ____________________________________________________,
as its agent.
A-12-8
EXHIBIT A-13
FORM OF CLASS L CERTIFICATE
CLASS L MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class L
7.0000% per annum Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Agreement:
August 1, 2000 Class Principal Balance of all the Class L
Certificates as of the Issue Date: $3,868,000
Cut-off Date: With respect to any Mortgage
Loan, the Due Date for such Mortgage Loan in Aggregate unpaid principal balance of the
August 2000 Mortgage Asset Pool as of the Cut-off Date,
after deducting payments of principal due on or
Issue Date: August 17, 2000 before such date, whether or not received:
$773,760,240
First Distribution Date: September 18, 2000
Trustee: Xxxxx Fargo Bank Minnesota, N.A.
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation 144A CUSIP No. 361849 MW 9
Certificate No. L-___ 000X 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 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
A-13-1
CORPORATION, XXXXX FARGO BANK MINNESOTA, N.A. 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, 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 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 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 HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. FOR INFORMATION REGARDING THE ISSUE PRICE AND YIELD
TO MATURITY OF THIS CERTIFICATE AND THE AMOUNT OF OID PER INITIAL CERTIFICATE
PRINCIPAL AMOUNT, CONTACT XXXXX FARGO BANK MINNESOTA, N.A. AT THEIR ADDRESS SET
FORTH IN THE AGREEMENT.
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 BALANCE OF THE
CLASS M, CLASS N AND CLASS O 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-13-2
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Class L Certificate (obtained by dividing the
principal balance of this Class L Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class L Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class L
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
16th day of each month or, if such 16th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class L Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class L
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have provided the Trustee with wiring instructions no less than five
Business Days prior to the Record Date for such distribution (which wiring
instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 2000-C2 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Assets, 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 Assets and the
payment of interest on such advances and expenses.
A-13-3
The Class L Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class L Certificates are exchangeable for new Class L Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class L Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class L Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. Any purchaser of a Class L Certificate shall be deemed to have
represented by such purchase that it is a "qualified institutional buyer" as
that term is defined in Rule 144A ("Rule 144A") under the Securities Act, that
it is aware that the sale to it is being made in reliance on Rule 144A and that
it is acquiring the Class L Certificates for its own account or for the account
of a qualified institutional buyer, and that it understands that such Class L
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate 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 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 Servicer to any obligation in
addition to those undertaken in the Agreement, and the following conditions are
met: (a) the source of funds
A-13-4
used to purchase such Certificate is an "insurance company general account" (as
such term is defined in PTCE 95-60) and (b) 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.
No service charge will be imposed for any registration of
transfer or exchange of Class L Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Class L Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. 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-13-5
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-13-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
----------------------------------------
Authorized Officer
A-13-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following
address:
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________________
for the account of .
Distributions made by check (such check to be made payable to
___________________________________) and all applicable statements and notices
should be mailed to .
This information is provided by, __________________ the assignee
named above, or ____________________________________________________, as its
agent.
A-13-8
EXHIBIT A-14
FORM OF CLASS M CERTIFICATE
CLASS M MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class M
7.0000% per annum Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Agreement:
August 1, 2000 Class Principal Balance of all the Class M
Certificates as of the Issue Date: $4,836,000
Cut-off Date: With respect to any Mortgage
Loan, the Due Date for such Mortgage Loan in Aggregate unpaid principal balance of the
August 2000 Mortgage Asset Pool as of the Cut-off Date,
after deducting payments of principal due on or
Issue Date: August 17, 2000 before such date, whether or not received:
$773,760,240
First Distribution Date: September 18, 2000
Trustee: Xxxxx Fargo Bank Minnesota, N.A.
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation 144A CUSIP No. 361849 MX 7
Certificate No. M-___ 000X 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 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
A-14-1
CORPORATION, XXXXX FARGO BANK MINNESOTA, N.A. 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, 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 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 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 HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. FOR INFORMATION REGARDING THE ISSUE PRICE AND
YIELD TO MATURITY OF THIS CERTIFICATE AND THE AMOUNT OF OID PER INITIAL
CERTIFICATE PRINCIPAL AMOUNT, CONTACT XXXXX FARGO BANK MINNESOTA, N.A. AT THEIR
ADDRESS SET FORTH IN THE AGREEMENT.
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
BALANCE OF THE CLASS N AND CLASS O 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-14-2
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class M Certificate (obtained by dividing
the principal balance of this Class M Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class M Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class M
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class M Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class M
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have provided the Trustee with wiring instructions no less than five
Business Days prior to the Record Date for such distribution (which wiring
instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets and the payment of interest on such advances and
expenses.
A-14-3
The Class M Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class M Certificates are exchangeable for new Class M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class M Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class M Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. Any purchaser of a Class M Certificate shall be deemed to have
represented by such purchase that it is a "qualified institutional buyer" as
that term is defined in Rule 144A ("Rule 144A") under the Securities Act, that
it is aware that the sale to it is being made in reliance on Rule 144A and that
it is acquiring the Class M Certificates for its own account or for the account
of a qualified institutional buyer, and that it understands that such Class M
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (b) pursuant to another exemption from registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate 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 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 Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) the source of funds
A-14-4
used to purchase such Certificate is an "insurance company general account" (as
such term is defined in PTCE 95-60) and (b) 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.
No service charge will be imposed for any registration of transfer
or exchange of Class M Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class M Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. 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-14-5
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-14-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
-------------------------------------
Authorized Officer
A-14-7
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-14-8
EXHIBIT A-15
FORM OF CLASS N CERTIFICATE
CLASS N MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class N
7.0000% per annum Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Agreement:
August 1, 2000
Class Principal Balance of all the Class N
Cut-off Date: With respect to any Mortgage Certificates as of the Issue Date: $4,836,000
Loan, the Due Date for such Mortgage Loan in
August 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Asset Pool as of the Cut-off Date,
Issue Date: August 17, 2000 after deducting payments of principal due on or
before such date, whether or not received:
First Distribution Date: September 18, 2000 $773,760,240
Master Servicer and Special Servicer: Trustee: Xxxxx Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
144A CUSIP No. 361849 MY 5
Certificate No. N-___
000X 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 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
A-15-1
CORPORATION, XXXXX FARGO BANK MINNESOTA, N.A. 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, 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 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 SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES (1) 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, AND (2) AN INTEREST IN A PORTION OF THE TRUST FUND CONSISTING OF EXCESS
INTEREST.
THIS CERTIFICATE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. FOR INFORMATION REGARDING THE ISSUE PRICE AND
YIELD TO MATURITY OF THIS CERTIFICATE AND THE AMOUNT OF OID PER INITIAL
CERTIFICATE PRINCIPAL AMOUNT, CONTACT XXXXX FARGO BANK MINNESOTA, N.A. AT THEIR
ADDRESS SET FORTH IN THE AGREEMENT.
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 PRINCIPAL
BALANCE OF THE CLASS O 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-15-2
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class N Certificate (obtained by dividing
the principal balance of this Class N Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class N Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class N
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class N Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class N
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have provided the Trustee with wiring instructions no less than five
Business Days prior to the Record Date for such distribution (which wiring
instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
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 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets and the payment of interest on such advances and
expenses.
A-15-3
The Class N Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class N Certificates are exchangeable for new Class N Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class N Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class N Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class N Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. Any purchaser of a Class N Certificate shall be deemed to have
represented by such purchase that it is a "qualified institutional buyer" as
that term is defined in Rule 144A ("Rule 144A") under the Securities Act, that
it is aware that the sale to it is being made in reliance on Rule 144A and that
it is acquiring the Class N Certificates for its own account or for the account
of a qualified institutional buyer, and that it understands that such Class N
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for 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 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 Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) the source of funds
A-15-4
used to purchase such Certificate is an "insurance company general account" (as
such term is defined in PTCE 95-60) and (b) 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.
No service charge will be imposed for any registration of transfer
or exchange of Class N Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class N Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. 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-15-5
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-15-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
-------------------------------------
Authorized Officer
A-15-7
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-15-8
EXHIBIT A-16
FORM OF CLASS O CERTIFICATE
CLASS O MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class O
7.0000% per annum Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Agreement:
August 1, 2000
Class Principal Balance of all the Class O
Cut-off Date: With respect to any Mortgage Certificates as of the Issue Date: $6,771,240
Loan, the Due Date for such Mortgage Loan in
August 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Asset Pool as of the Cut-off Date,
Issue Date: August 17, 2000 after deducting payments of principal due on or
before such date, whether or not received:
First Distribution Date: September 18, 2000 $773,760,240
Master Servicer and Special Servicer: Trustee: Xxxxx Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
144A CUSIP No. 361849 MZ 2
Certificate No. O-___
000X 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 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
A-16-1
CORPORATION, XXXXX FARGO BANK MINNESOTA, N.A. 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, 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 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 SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES (1) 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, AND (2) AN INTEREST IN A PORTION OF THE TRUST FUND CONSISTING OF EXCESS
INTEREST.
THIS CERTIFICATE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. FOR INFORMATION REGARDING THE ISSUE PRICE AND
YIELD TO MATURITY OF THIS CERTIFICATE AND THE AMOUNT OF OID PER INITIAL
CERTIFICATE PRINCIPAL AMOUNT, CONTACT XXXXX FARGO BANK MINNESOTA, N.A. AT THEIR
ADDRESS SET FORTH IN THE AGREEMENT.
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, 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-16-2
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, N.A., as
Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class O Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class O
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have provided the Trustee with wiring instructions no less than five
Business Days prior to the Record Date for such distribution (which wiring
instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
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 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets and the payment of interest on such advances and
expenses.
A-16-3
The Class O Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class O Certificates are exchangeable for new Class O Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class O Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class O Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class O Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. Any purchaser of a Class O Certificate shall be deemed to have
represented by such purchase that it is a "qualified institutional buyer" as
that term is defined in Rule 144A ("Rule 144A") under the Securities Act, that
it is aware that the sale to it is being made in reliance on Rule 144A and that
it is acquiring the Class O Certificates for its own account or for the account
of a qualified institutional buyer, and that it understands that such Class O
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for 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 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 Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) the source of funds
A-16-4
used to purchase such Certificate is an "insurance company general account" (as
such term is defined in PTCE 95-60) and (b) 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.
No service charge will be imposed for any registration of transfer
or exchange of Class O Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class O Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. 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-16-5
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-16-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
----------------------------------------
Authorized Officer
A-16-7
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-16-8
EXHIBIT A-17
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
August 1, 2000 Certificate in the related Class: _____%
Cut-off Date: With respect to any Mortgage Aggregate unpaid principal balance of the
Loan, the Due Date for such Mortgage Loan in Mortgage Asset Pool as of the Cut-off Date,
August 2000 after deducting payments of principal due on or
before such date, whether or not received:
Issue Date: August 17, 2000 $773,760,240
First Distribution Date: September 18, 2000 Trustee: Xxxxx Fargo Bank Minnesota, N.A.
Master Servicer and Special Servicer: 144A CUSIP No. 361849 NA 6
GMAC Commercial Mortgage Corporation
000X XXXX Xx. XX000000XX00
Certificate No. R-I-___
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, N.A. 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, 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
A-17-1
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 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 SET FORTH IN THE AGREEMENT.
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, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th 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.
A-17-2
The Depositor's Mortgage Pass-Through Certificates, Series 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets and the payment of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-I Certificates are exchangeable for new
Class R-I Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-I Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-I Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-I Certificates under the
Securities Act or any other 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, unless the prospective
transferee provides the Trustee, the Master Servicer and the Depositor with a
certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Trustee, the Master Servicer and the Depositor that such
transfer is permissible under applicable law, will not constitute or result in
a violation of Section 406 of 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.
A-17-3
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to
negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate
must be a Permitted Transferee and a United States Person and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee or United States Person. In connection with any proposed
Transfer of any Ownership Interest in this Certificate, the Trustee shall
require delivery to it, and shall not register the Transfer of this Certificate
until its receipt of, an affidavit and agreement substantially in the form
attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and Agreement")
from the proposed Transferee, in form and substance satisfactory to the
Trustee, representing and warranting, among other things, that such Transferee
is a Permitted Transferee and a United States Person, that it is not acquiring
its Ownership Interest in this Certificate as a nominee, trustee or agent for
any Person that is not a Permitted Transferee or is not a United States Person,
that for so long as it retains its Ownership Interest in this Certificate, it
will endeavor to remain a Permitted Transferee and a United States Person, and
that it has reviewed the provisions of Section 5.02(d) of the Agreement and
agrees to be bound by them. Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee, if the Trustee has actual
knowledge that the proposed Transferee is not a Permitted Transferee or is not
a United States Person, the Trustee shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its Ownership Interest unless
it provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United 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
A-17-4
organization (other than certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, and (v) any electing large partnership under
Section 775 of the Code and/or any other Person so designated by the Trustee
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Class R-I Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Class R-I Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust.
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 Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage specified on the face hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. 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
A-17-5
or in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of
REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-17-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee
By:
-----------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-1 Certificates referred to in the
within-mentioned Agreement.
Dated: August 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
-----------------------------------------
Authorized Officer
A-17-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following
address:
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Dated:
---------------------------------------------
Signature by or on behalf of Assignor
---------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ___________________________
for the account of .
Distributions made by check (such check to be made payable to
___________________________________) and all applicable statements and notices
should be mailed to .
This information is provided by, __________________ the assignee
named above, or ____________________________________________________, as its
agent.
A-17-8
EXHIBIT A-18
FORM OF CLASS R-II CERTIFICATE
CLASS R-II MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
August 1, 2000 Certificate in the related Class: _____%
Cut-off Date: With respect to any Mortgage Loan, Aggregate unpaid principal balance of the
the Due Date for such Mortgage Loan in August 2000 Mortgage Asset Pool as of the Cut-off Date,
after deducting payments of principal due on or
Issue Date: August 17, 2000 before such date, whether or not received:
$773,760,240
First Distribution Date: September 18, 2000
Trustee: Xxxxx Fargo Bank Minnesota, N.A.
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation 144A CUSIP No. 361849 NB 4
000X XXXX Xx. XX000000XX00
Certificate No. R-II-___
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, N.A. 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, 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
A-18-1
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 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 SET FORTH IN THE AGREEMENT.
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, N.A.,
as Trustee and Securities Intermediary. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th 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 (as to
the Class R-II Certificates, 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.
A-18-2
The Depositor's Mortgage Pass-Through Certificates, Series 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets and the payment of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-II Certificates are exchangeable for new
Class R-II Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-II Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-II Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-II Certificates under the
Securities Act or any other 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, unless the
prospective transferee provides the Trustee, the Master Servicer and the
Depositor with a certification of facts and an Opinion of Counsel which
establish to the satisfaction of the Trustee, the Master Servicer and the
Depositor that such transfer is permissible under applicable law, will not
constitute or result in a violation of Section 406 of 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.
A-18-3
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 in this Certificate, the Trustee
shall require delivery to it, and shall not register the Transfer of this
Certificate until its receipt of, an affidavit and agreement substantially in
the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Trustee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee and a United States Person, that it is not
acquiring its Ownership Interest in this Certificate as a nominee, trustee or
agent for any Person that is not a Permitted Transferee or is not a United
States Person, that for so long as it retains its Ownership Interest in this
Certificate, it will endeavor to remain a Permitted Transferee and a United
States Person, and that it has reviewed the provisions of Section 5.02(d) of
the Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Trustee has
actual knowledge that the proposed Transferee is not a Permitted Transferee or
is not a United States Person, the Trustee shall not register the Transfer of
an Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its Ownership Interest unless
it provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United 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
A-18-4
organization (other than certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, and (v) any electing large partnership under
Section 775 of the Code and/or any other Person so designated by the Trustee
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Class R-II Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Class R-II Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust.
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 Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. 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
A-18-5
or in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of
REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-18-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-18-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
Dated:
----------------------------------------------
Signature by or on behalf of Assignor
----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________________
for the account of .
Distributions made by check (such check to be made payable to
___________________________________) and all applicable statements and notices
should be mailed to .
This information is provided by, __________________ the assignee
named above, or ____________________________________________________, as its
agent.
A-18-8
EXHIBIT A-19
FORM OF CLASS R-III CERTIFICATE
CLASS R-III MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Asset Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") and a multifamily mortgage
participation certificate issued and guaranteed by the Federal Home Loan
Mortgage Corporation (the "Mortgage Certificate," and with the Mortgage Loans,
the "Mortgage Assets"), such pool being formed and sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
August 1, 2000 Certificate in the related Class: _____%
Cut-off Date: With respect to any Mortgage Aggregate unpaid principal balance of the
Loan, the Due Date for such Mortgage Loan in Mortgage Asset Pool as of the Cut-off Date,
August 2000 after deducting payments of principal due on or
before such date, whether or not received:
Issue Date: August 17, 2000 $773,760,240
First Distribution Date: September 18, 2000 Trustee: Xxxxx Fargo Bank Minnesota, N.A.
Master Servicer and Special Servicer: 144A CUSIP No. 361849 NC 2
GMAC Commercial Mortgage Corporation
000X XXXX Xx. XX000000XX00
Certificate No. R-III-___
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
XXXXX FARGO BANK MINNESOTA, N.A. 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, 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
A-19-1
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 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 SET FORTH IN THE AGREEMENT.
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, N.A., as Trustee and Securities Intermediary. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 16th day of each month or, if such 16th 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 (as to
the Class R-III Certificates, 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.
A-19-2
The Depositor's Mortgage Pass-Through Certificates, Series 2000-C2
(the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Assets, 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 Assets and the payment of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-III Certificates are exchangeable for
new Class R-III Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-III Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No transfer of any Class R-III Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-III
Certificate (other than a transfer thereof by the Depositor or any Affiliate of
the Depositor) is to be made without registration under the Securities Act,
then the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-2 to the
Agreement. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-III Certificates 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, unless the
prospective transferee provides the Trustee, the Master Servicer and the
Depositor with a certification of facts and an Opinion of Counsel which
establish to the satisfaction of the Trustee, the Master Servicer and the
Depositor that such transfer is permissible under applicable law, will not
constitute or result in a violation of Section 406 of 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.
A-19-3
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 Certificate Registrar shall not register the
Transfer of an Ownership Interest in this Certificate to such proposed
Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its Ownership Interest unless
it provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United 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
A-19-4
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code, and (v)
any electing large partnership under Section 775 of the Code and/or any other
Person so designated by the Trustee based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Class R-III Certificate by such Person
may cause the Trust Fund or any Person having an Ownership Interest in any
Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Class R-III Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust.
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 Securities Intermediary, 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 Securities
Intermediary, 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 Asset or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Assets and any
REO Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Assets and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Asset Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Asset Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Securities Intermediary 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?% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all
A-19-5
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of REMIC I, REMIC II or REMIC III as
a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-19-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Xxxxx Fargo Bank Minnesota, N.A.,
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 17, 2000
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:
-------------------------------------
Authorized Officer
A-19-7
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-19-8
EXHIBIT B-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS),
GMAC Mortgage Pass-Through Certificates Series 2000-C2
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2000-C2, [Class X][Class
F][Class G][Class H] [Class J] [Class K][Class L][Class
M][Class N] [Class O] [Class R-I] [Class R-II] [Class R-III],
[having an initial principal balance/initial notional amount
as of August 17, 2000 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, 2000,
among GMAC Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial
Mortgage Corporation, as Master Servicer and Special Servicer, and Xxxxx Fargo
Bank Minnesota, N.A., as Trustee. All terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants
to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Certificates with the full
right to transfer the Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with any person in any manner, (d) made any
general solicitation with respect to the Certificates, any interest in the
Certificates or any other similar security by means of general advertising or
in any other manner, or (e) taken any other action with respect to the
Certificates, any interest in the Certificates or any other similar security,
which (in the case of any of the acts described in clauses (a) through (e)
hereof) would constitute a distribution under the Securities Act of 1933 (the
"Securities Act"), or would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or any state securities laws, or
would require registration or qualification of the Certificates pursuant to the
Securities Act or any state securities laws.
3. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is a "qualified
institutional buyer" (as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act) purchasing for its own account or for the accounts of other
"qualified
B-1-1
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 Assets, (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 I OF TRANSFEREE CERTIFICATE
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS),
GMAC Mortgage Pass-Through Certificates Series 2000-C2
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2000-C2, [Class X][Class
F][Class G][Class H] [Class J] [Class K][Class L][Class
M][Class N][Class O] [Class R-I] [Class R-II] [Class R-III],
[having an initial principal balance/initial notional amount
as of August 17, 2000 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, 2000
among GMAC Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial
Mortgage Corporation, as Master Servicer and Special Servicer, and Xxxxx Fargo
Bank Minnesota, N.A., as Trustee. All terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants
to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933 (the
"Securities Act") and has completed one of the forms of certification to that
effect attached hereto as Annex 1 and Annex 2. The Transferee is aware that the
sale to it is being made in reliance on Rule 144A. The Transferee is acquiring
the Certificates for its own account or for the account of a qualified
institutional buyer, and understands that such Certificates may be resold,
pledged or transferred only (a) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding (a)
the Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement, and
(d) any credit enhancement mechanism associated with the Certificates, that it
has requested.
3. If the Transferee proposes that the Certificates be registered in the
name of a nominee, such nominee has completed the Nominee Acknowledgment below.
4. The Transferee hereby certifies to the Trustee, the Depositor and the
Master Servicer that such transfer is permissible under applicable law, and
except for a transfer of the Class X Certificates, 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
B-2-1
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) the source of funds used
to purchase the Certificate is an "insurance company general account" (as such
term is defined in DOL Prohibited Transaction Class Exemption ("PTCE") 95-60)
and (ii) 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
Certificate, as of the date of acquisition of such Certificate.
Very truly yours,
Print Name of Transferee
---------------------------------------
By:
-------------------------------------
Name:
Title:
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 Transferee
---------------------------------------
By:
-------------------------------------
Name:
Title:
X-0-0
XXXXX 0 XX XXXXXXX X-0
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to (the "Transferor") and , as
Certificate Registrar, with respect to the mortgage pass-through certificate
(the "Certificate") described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933 ("Rule 144A"), because
(i) the Transferee owned and/or invested on a discretionary basis $ in
securities(1) (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in
the category marked below.
Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or any organization described in Section 501(c)(3)
of the Internal Revenue Code of 1986.
Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District of
Columbia, the business of which is substantially confined to banking and is
supervised by the State or territorial banking commission or similar official
or is a foreign bank or equivalent institution, and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Certificate in the case of a U.S.
bank, and not more than 18 months preceding such date of sale for a foreign
bank or equivalent institution.
Savings and Loan. The Transferee (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions, or is a foreign
savings and loan association or equivalent institution and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as of a date not more
than 16 months preceding 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.
---------------
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-2-3
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.
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
B-2-4
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
Print Name of Transferee
-------------------------------------------------
-------------------------------------------------
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) 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.
B-2-6
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
-------------------------------------------------
-------------------------------------------------
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Transferee
-------------------------------------------------
Date:
B-2-7
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
State of )
) ss:
County of )
, being first duly sworn, deposes and says that:
1. He/She is the of (the prospective transferee
(the "Transferee") of GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2000-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 1.860E1(c) and that the transferor of a "noneconomic residual interest"
will remain liable for any taxes due with respect to the income on such
residual interest, unless no 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.)
C-1-1
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a
reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is .
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (ii)(A) of Section 5.02(d)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a Person other than the Transferee and clause (ii)(B) of Section 5.02(d) which
authorizes the Trustee to negotiate a mandatory sale of the Residual
Certificates, in either case, in the event that the Transferee holds such
Residual Certificates in violation of Section 5.02(d)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of
the Residual Certificates is or will be to impede the assessment or collection
of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends and reasonably expects to have the
ability to pay any taxes associated with holding the Residual Certificates as
they become due, fully understanding that it may incur tax liabilities in
excess of any cash flows generated by the Residual Certificates. The Transferee
has provided financial statements or other financial information requested by
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.
11. The Transferee will, in connection with any transfer that it makes of
the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit C-2 to the Pooling
and Servicing Agreement.
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.
C-1-2
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
-------------------------------------------------
-------------------------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
------------------------------
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me to
be the same person who executed the foregoing instrument and to be the of the
Transferee, and acknowledged to me that he/she executed the same as his/her
free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this day of , .
--------------------------------------
NOTARY PUBLIC
COUNTY OF
----------------------------
STATE OF
-----------------------------
My Commission expires the day of
, .
C-1-3
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS
OF REMIC RESIDUAL CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS),
GMAC Mortgage Pass-Through Certificates Series, 2000-C2
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2000-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,
2000 (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, N.A., as
Trustee. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Certificates by the Transferor to the Transferee is or will be to impede the
assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor at the time of this transfer either (i) (A) has
conducted a reasonable investigation of the financial condition of the
Transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i)
and, as a result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due in the future, and (B) 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"), and
(II) utilizing a discount rate for present valuations equal to the applicable
Federal rate prescribed by Section 1274(d) of the Code compounded semi-annually
(or a lower discount rate based on the Transferee having demonstrated that it
regularly borrows,
C-2-1
in the course of its trade or business, substantial funds at such lower rate
from unrelated third parties)), or (ii) based on an adequate review of the
relevant facts and circumstances, neither knows nor should know that the
Transferee would be unwilling or unable to pay any taxes due on its share of the
taxable income of the REMIC.
4. The Transferor understands that the transfer of the Residual
Certificates may not be respected for United States income tax purposes (and
the Transferor may continue to be liable for United States income taxes
associated therewith) at least one of the tests as described above in Paragraph
3(i) and 3(ii) has been met as to any transfer.
Very truly yours,
Print Name of Transferee
-------------------------------------------------
By:
-------------------------------------------------
Name:
Title:
C-2-2
EXHIBIT D
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
Borrower Name(s):
Reason for Document Request: (indicate one)
[ ] Mortgage Loan Prepaid in Full
[ ] Mortgage Loan Repurchased or Sold
[ ] Other (specify)
----------------------
------------------------------------------
------------------------------------------
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
[GMAC COMMERCIAL MORTGAGE CORPORATION]
Authorized Signature
******************************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
D-1
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other:
Name
Title
Date
D-2
EXHIBIT E
FORMS OF UCC-1
E-1
SCHEDULE 1 TO UCC-1 FINANCING STATEMENT
All right (including the power to convey title thereto), title and interest of
the Debtor as more particularly described on Exhibit A attached hereto:
EXHIBIT A OF SCHEDULE 1 TO UCC-1 FINANCING STATEMENT
All right (including the power to convey title thereto), title and
interest of the Debtor, including any security interest therein for the benefit
of the Debtor, in and to the Trust Fund created pursuant to the Pooling and
Servicing Agreement, dated as of August 1, 2000, among the Debtor as Depositor,
the Secured Party as Trustee* and GMAC Commercial Mortgage Corporation as
Master Servicer and Special Servicer with respect to Mortgage Pass-Through
Certificates, Series 2000-C2 (the "Pooling and Servicing Agreement (Series
2000-C2)"), including:
(1) the Mortgage Loans listed on the Mortgage Asset Schedule attached
hereto;
(2) the Mortgage Certificate, all payments and distributions received or
receivable thereunder and all accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts and investment property
consisting of, arising from or relating to the Mortgage Certificate or the
Mortgage Certificate Securities Account and all moneys, instruments, financial
assets and other property credited thereto;
(3) 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);
(4) all amounts held from time to time in the Certificate Account, the
Interest Reserve Account, the REO Account and the Distribution Account;
(5) all of the Debtor's right, title and interest in and to the proceeds
of any title, hazard or other Insurance Policies related to such Mortgage
Loans;
(6) any and all general intangibles (as defined in the Uniform Commercial
Code) consisting of, arising from or relating to any of the foregoing; and
(7) 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
2000-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, THE MORTGAGE NOTES, THE RELATED MORTGAGES
AND THE RELATED MORTGAGE FILES, AND THIS FILING SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT A SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE
NOTES SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN
INSTRUMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN
ANY APPLICABLE JURISDICTION, OR THAT A FILING IS NECESSARY TO PERFECT THE
SECURITY INTEREST OF THE SECURED PARTY, WITH RESPECT TO THE MORTGAGE LOANS, IN
ANY MORTGAGE NOTE, MORTGAGE OR DOCUMENT IN A MORTGAGE FILE. WITH RESPECT TO THE
FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY
THIRD PARTIES.
E-2
*Not in its individual capacity, but solely as Trustee for the benefit of
the Certificateholders pursuant to the Pooling and Servicing Agreement (Series
2000-C2).
E-3
MORTGAGE ASSET SCHEDULE TO UCC-1 FINANCING STATEMENT
E-4
EXHIBIT F
METHODOLOGY TO NORMALIZE NET OPERATING INCOME AND DEBT SERVICE COVERAGE
o GMAC Commercial Mortgage Corporation ("GMACCM") applies the methodology
presented below to arrive at a servicer adjusted or "Normalized" Net
Operating Income ("NOI"). The items described below highlight some of
the major categories requiring adjustment. There may, however, be
others, and GMACCM will use its market knowledge and discretion in
making and sufficiently footnoting the necessary adjustments.
o GMACCM chooses to use the actual management fee stated in the
financial statement.
o Where they are clearly identifiable, GMACCM will remove any capital
expense from any above the line categories (such as extraordinary
repairs and maintenance) and put them below the line in the capital
expense comment section.
o Replacement reserves, tenant improvement and leasing commission
reserves will be treated as above the line expenses. A determination
will be made whether there have been credits for the disbursements from
a reserve and that expenses are not overstated due to exclusion of
credits.
o Property taxes should be the annual amount due, excluding any
delinquent taxes or credits from prior years which would cause the
number to be higher or lower. The amount for property taxes will be
adjusted if the period under analysis is less than one year.
o GMAC Commercial Mortgage will exclude non-recurring, extraordinary
income. For example, a tax refund, lease buyout or income received for
a period other than the year in question should be adjusted. If past
due rent for a prior year was paid and recorded in the current year,
GMACCM would back it out and footnote it accordingly. Care will be used
when reflecting percentage/overage rents to ensure that it relates to
the appropriate period and that the numbers are supported by tenant
sales information.
o GMAC Commercial Mortgage will remove any items not pertaining to the
operation of the property such as, fees for closing the loan
restructure, a distribution to owners or a charitable contribution.
o When necessary, income and expenses will be analyzed by looking at
variances by category. Unusual income and expense items will be
researched. If there are significant variances, inquiries to the
borrower will be made. Appropriate adjustments will be made and
footnotes provided to clearly explain the situation.
F-1
o The debt service should be an actual amount the borrower paid per the
servicing records for the period associated with the operating
statement. If GMACCM does not have a full year of payments, it will use
the principal and interest constant in the case of a fixed rate loan
and, in the case of an adjustable rate loan, will estimate a full year
amount from the payment history information available.
F-2
EXHIBIT G
FORM OF DISTRIBUTION DATE STATEMENT
G-1
EXHIBIT H
FORM OF MASTER SERVICER REPORT
H-1
EXHIBIT I
CERTAIN REPORTS
I-1
EXHIBIT J
FORM OF CMSA PERIODIC LOAN FILE
J-1
EXHIBIT K
FORM OF INVESTOR CERTIFICATION
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services Group,
GMAC Mortgage Pass-Through Certificates Series 2000-C2
In accordance with Section 4.02 of the Pooling and Servicing Agreement,
dated as of August 1, 2000 (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, N.A. as
Trustee and Securities Intermediary (the "Trustee"), with respect to the GMAC
Commercial Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series
2000-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 a password pursuant to Section 4.02 of
the Agreement for access to certain information (the "Information")
on the Trustee's website and/or is requesting the information
identified on the schedule attached hereto (also, the ?Information?)
pursuant to Section ___ of the Agreement.
3. In consideration of the Trustee's disclosure to the undersigned of
the Information, or the password in connection therewith, the
undersigned will keep the Information confidential (except from such
outside persons as are assisting it in making an evaluation in
connection with purchasing the related Certificates, from its
accountants and attorneys, and otherwise from such governmental or
banking authorities or agencies to which the undersigned is subject),
and such Information will not, without the prior written consent of
the Trustee, be otherwise disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the ?Representatives?) in any manner whatsoever, in
whole or in part.
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
registration of any Certificate 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 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.
K-1
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 officer, as of the day and year written above.
-------------------------------------------
Beneficial Owner or Prospective Purchaser
By:
----------------------------------------
Title:
-------------------------------------
K-2
EXHIBIT L
DESIGNATED SUB-SERVICERS
X. X. Xxxxxx & Company
L-1
SCHEDULE I
MORTGAGE ASSET SCHEDULE
Schedule I-1
LOAN
NUMBER NAME ADDRESS CITY
XXXXXXX MAC MULTIFAMILY GOLD PC
21702 Xxxxxx Xxxxx Plaza Apartments 0000 Xxxxxx Xxxxx Xxxxxx
00000 Xxxxxx'x-Plainfield 000 Xxxxx Xxxx Xxxxxxxxxx
00000 Residence Inn by Xxxxxxxx 00 Xxxxxxxx Xxxxxxx Xxxxxxx
00000 Xxxxxx'x-Xxxxxxx 00000 Xxxx Xxxxxx Xxxxxxx
00000 Xxxxxx'x-Fairfax 00000 Xxxx Xxxxx Xxxxxx Xxxxxxx
00000 Center City Apartment Portfolio II Xxxxxxx Xxxxxxx
00000-X 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
00000-X 000 X. 00xx Xxxxxx 000 X. 00xx Xxxxxx Xxxxxxxxxxxx
00000-X 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
00000-X 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
00000-X 0000-00 Xxxxxx Xxxxxx 0000-00 Xxxxxx Xxxxxx Xxxxxxxxxxxx
00000-X 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx
00000-X 0000 Xxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxxxxxxxxxx
00000-X 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
00000-X 0000-00 Xxxxxx Xxxxxx 0000-00 Xxxxxx Xxxxxx Xxxxxxxxxxxx
00000-X 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
00000-X 000 X. 00xx Xxxxxx 000 X. 00xx Xxxxxx Xxxxxxxxxxxx
00000-X 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
00000 Paradise Xxxxx Xxx 0 Xxxxx Xxxxxx Xxxxx Xxxx
00000 Candlestick Apartments 0000 Xxxxxx Xxxxxx Xxx Xxxxxxx
00000 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxxx
00000 Office Depot -- Hobby Lobby Retail Center 000 XX Xxxxx Xxxxx 0 Xxxx Xxxxxxx
00000 Dove Park Townhomes 00000 X. 00xx Xxxxxx Xxxxx
00000 Xxxxxx Apartment Portfolio Xxxxxxx Xxxxxxx
00000-X 00 Xxxxxx Xxxxxx 00 Xxxxxx Xxxxxx Xxxxxxx
00000-X 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxxxxx
00000-X 00 Xxxxxxxxx Xxxxxx 00 Xxxxxxxxx Xxxxxx Xxxxxxx
26254-D 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx Xxxxxxx
00000-X 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx Xxxxxxx
00000 Bank of Xxxxxxx Xxxxxx Xxxxxxxx 000 Xxxx 00xx Xxxxxx Hialeah
00000 Xxxxxxxxx Xxxxx Shopping Center 0000 Xxxx Xxxxxx Xxxx Xxxxxxx
00000 Xxxxxxxx Xxxx Shopping Center 1005-1019 E. Grand River Avenue Brighton
CUT-OFF ANTICIPATED
LOAN INTEREST RATE ORIGINAL DATE REMAINING MATURITY REPAYMENT
NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE DATE
7.3750 89,400,000.00 89,400,000.00
00000 Xxxxx 00000 8.1600 Fixed 3,200,000.00 3,170,907.00 106 6/10/09
00000 Xxxxxxx 00000 8.7580 Fixed 4,975,000.00 4,943,454.34 109 9/10/09
24483 Xxx Xxxxxxxxx 00000 8.5000 Fixed 6,100,000.00 6,089,575.96 118 6/1/25 6/1/10
24575 Kansas 66211 8.7540 Fixed 8,600,000.00 8,545,423.21 109 9/10/09
00000 Xxxxxxxx 00000 8.7510 Fixed 8,300,000.00 8,247,294.07 109 9/10/09
25149 Various Various 8.6800 Fixed 6,400,000.00 6,385,741.00 115 3/5/10
25149-A Pennsylvania 19107
25149-B Pennsylvania 19107
25149-C Pennsylvania 19106
25149-D Pennsylvania 19107
25149-E Pennsylvania 19103
25149-F Pennsylvania 19147
25149-G Pennsylvania 19107
25149-H Pennsylvania 19107
25149-I Pennsylvania 19103
25149-J Pennsylvania 19103
25149-K Pennsylvania 19103
25149-L Pennsylvania 19103
00000 Xxxxxxxx 00000 9.2500 Fixed 6,000,000.00 5,987,587.21 117 5/1/25 5/1/10
00000 Xxxxx 00000 8.4300 Fixed 1,155,000.00 1,152,222.62 115 3/5/10
00000 Xxxxxxx 00000 8.5300 Fixed 1,650,000.00 1,646,770.38 116 4/5/10
00000 Xxxxxxxx 00000 8.3500 Fixed 3,450,000.00 3,445,099.54 117 5/5/10
00000 Xxxxxxxx 00000 8.6700 Fixed 1,740,000.00 1,736,727.80 116 4/5/10
26254 Various Various 8.4300 Fixed 2,784,000.00 2,778,395.15 116 4/5/10
26254-A New Jersey 07030
26254-B New Jersey 07030
26254-C New Jersey 07030
26254-D New Jersey 07030
26254-E New Jersey 07030
26426 Florida 33012 8.3750 Fixed 4,910,000.00 4,908,090.42 119 7/5/10
00000 Xxxxxxx 00000 8.2260 Fixed 13,400,000.00 13,380,225.51 117 5/5/10
00000 Xxxxxxxx 00000 8.5400 Fixed 4,400,000.00 4,395,737.00 118 6/5/10
DAY CREDIT BROKER ADDITIONAL
LOAN PAYMENT MONTHLY ARD LEASE STRIP SERVICING SERVICING
NUMBER DUE PAYMENT LOAN LOAN DEFEASANCE LOAN FEE LOAN FEE
15 0.0025
21702 10 24,109.14 No Lock/38 Defeasance/78 0%/4 0.1325
24161 10 39,620.99 No Lock/35 Defeasance/83 0%/2 0.1325
24483 1 49,118.86 Yes Lock/47 Defeasance/71 0%/2 0.1325
24575 10 68,465.53 No Lock/35 Defeasance/83 0%/2 0.1325
24576 10 66,059.08 No Lock/35 Defeasance/83 0%/2 0.1325
25149 5 50,029.20 No Lock/29 Defeasance/89 0%/2 0.1325
25149-A NAP NAP
25149-B NAP NAP
25149-C NAP NAP
25149-D NAP NAP
25149-E NAP NAP
25149-F NAP NAP
25149-G NAP NAP
25149-H NAP NAP
25149-I NAP NAP
25149-J NAP NAP
25149-K NAP NAP
25149-L NAP NAP
26002 1 51,382.91 Yes Lock/47 Defeasance/71 0%/2 0.1325
26190 5 8,823.72 No Lock/29 Defeasance/89 0%/2 0.1325
26207 5 12,722.17 No Lock/47 Defeasance/71 0%/2 0.1325
26209 5 26,161.63 No Lock/27 Defeasance/91 0%/2 0.1325
26214 5 13,589.29 No Lock/28 Defeasance/90 0%/2 0.1325
26254 5 21,268.59 No Lock/28 Defeasance/90 0%/2 0.1325
26254-A NAP NAP
26254-B NAP NAP
26254-C NAP NAP
26254-D NAP NAP
26254-E NAP NAP
26426 5 37,319.55 No Lock/25 Defeasance/93 0%/2 0.1325
26560 5 100,443.73 No Lock/27 Defeasance/91 0%/2 0.0825
26750 5 33,957.00 No Lock/26 Defeasance/92 0%/2 0.1325
Schedule I-2
LOAN
NUMBER NAME ADDRESS CITY
27102 Sheraton Four Points Hotel 0000 Xxxxxx Xxxxxx Xxxxxxxxxx
00000 Hampton Inn 0000 Xxxxxxx Xxxxxxx Xxxxx Xxxx
00000 Holiday Inn Express -- BWI 0000 Xxxxx Xxxx Xxxxxxx
00000 Residence Inn (Danbury) 00 Xxxxx Xxxxxx Xxxxxxx
00000 Industrial Distribution Group Building 0000 Xxx Xxxx Xxxxxxx Xxxxxxx
Xxxxx
00000 Xxxxx Xxxx Apartments 0000 Xxxx Xxxxxxxx Xxxxx Xxxxxxx
00000 West Union Corporate Building 0000 Xxxxx Xxx Xxxxxx Xxxxx
Xxx
00000 Xxxxxx Xxxxxxxx 000 Xxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx
00000 Xxxxxxxxx Multifamily Portfolio Xxxxxxx Xxxxxxx
00000-X Daibes Apartments 00 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxx
00000-X Crescent Garden Apartments 0000 Xxxxx Xxxxxx Xxxxxx
00000 Xxxxxxxxx by Marriott 0000 Xxxxxxxxxxx Xxxxxxx Xxxxxxx
00000 Residence Inn by Marriott 3333 Centerpoint Parkway Pontiac
00-0000000 Xxxxxxxxx'x Union Building 0000 X Xxxxxx X.X. Xxxxxxxxxx
00-0000000 DuPont Medical Building 0000 00xx Xxxxxx Xxxxxxxxxx
00-0000000 Xxxxxxxxxxx Xxxxxx Xxxxxxxx 0000 00xx Xxxxxx Xxxxxxxxxx
00-0000000 Bladensburg Shopping Center 0000-0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx
00-0000000 Xxx Xxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxx 0xx Xxxxxx Ft. Worth
00-0000000 Cypress Square Shopping Center 13451 XxXxxxxx Boulevard Fort Xxxxx
Newport
00-0000000 The Shoppes at Kiln Creek 000 Xxxxx Xxxxxx News
Citrus
00-0000000 Citrus Heights Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxxxxx Xxxxxxx
00-0000000 Stonegate Apartments 1431 -- 1439 Xxxxxxx Avenue Newington
00-0000000 Carousel Ranch Mobile Home Park 0000 Xxxxx Xxxxxxx Xxxxx Xxxx Xxxxxx
00-0000000 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 00000 Xxxxx Xxxxxxx Xxxxxx Gardena
00-0000000 Advance Auto Parts Retail (Combined) Various Various
01-1024948-A Advance Auto -- Sayre 000 Xxxxxx Xxxxxx Sayre
CUT-OFF
LOAN INTEREST RATE ORIGINAL DATE REMAINING MATURITY
NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE
00000 Xxxxxxxxxx 00000 8.7800 Fixed 11,500,000.00 11,492,165.39 119 7/1/25
00000 Xxxxxxxx 00000 8.5000 Fixed 6,120,000.00 6,109,541.80 118 6/1/25
00000 Xxxxxxxx 00000 8.5000 Fixed 9,100,000.00 9,084,449.40 118 6/1/25
27271 Xxxxxxxxxxx 00000 8.6250 Fixed 5,000,000.00 4,996,452.01 119 7/1/25
27433 Xxxxx Xxxxxxxx 00000 8.4300 Fixed 5,950,000.00 5,947,736.54 119 7/5/10
00000 Xxxxx 00000 8.2400 Fixed 3,400,000.00 3,398,605.72 119 7/5/10
00000 Xxxxxxx 00000 8.3100 Fixed 3,300,000.00 3,300,000.00 119 7/5/10
00000 Xxxxxxxxxx 00000 8.4200 Fixed 27,250,000.00 27,222,688.33 118 6/5/10
27974 Various Various 8.3750 Fixed 2,200,000.00 2,199,144.38 119 7/5/10
27974-A New Jersey 07087
27974-B New Jersey 07047
28000 Michigan 48341 8.7000 Fixed 6,315,000.00 6,310,605.86 119 7/1/25
00000 Xxxxxxxx 00000 8.7000 Fixed 7,485,000.00 7,479,791.74 119 7/1/25
District of
00-0000000 Columbia 20001 8.8500 Fixed 2,420,000.00 2,417,857.02 58 6/1/05
District of
00-0000000 Columbia 20036 8.8500 Fixed 3,646,000.00 3,642,771.37 58 6/1/05
District of
00-0000000 Columbia 20005 8.8500 Fixed 5,833,000.00 5,827,834.72 58 6/1/05
00-0000000 Maryland 27010 8.6250 Fixed 1,200,000.00 1,181,413.21 104 4/1/09
00-0000000 Texas 76107 8.0000 Fixed 1,500,000.00 1,485,003.22 105 5/1/09
00-0000000 Florida 33919 8.8750 Fixed 2,200,000.00 2,192,824.94 113 1/1/10
00-0000000 Virginia 23606 8.9700 Fixed 1,430,000.00 1,427,094.93 115 3/1/10
00-0000000 California 95610 8.7500 Fixed 1,450,000.00 1,447,335.64 116 4/1/10
00-0000000 Xxxxxxxxxxx 00000 8.4200 Fixed 2,500,000.00 2,490,772.65 113 1/1/10
00-0000000 Arizona 85705 8.6250 Fixed 1,000,000.00 997,733.73 115 3/1/10
00-0000000 California 90247 9.1250 Fixed 2,925,000.00 2,914,283.39 115 3/1/10
00-0000000 Various Various 9.3000 Fixed 926,000.00 918,313.57 114 2/1/10
01-1024948-A Pennsylvania 18840
ANTICIPATED DAY CREDIT BROKER ADDITIONAL
LOAN REPAYMENT PAYMENT MONTHLY ARD LEASE STRIP SERVICING SERVICING
NUMBER DATE DUE PAYMENT LOAN LOAN DEFEASANCE LOAN FEE LOAN FEE
27102 7/1/10 1 94,781.03 Yes Lock/47 Defeasance/71 0%/2 0.1325
27256 6/1/10 1 49,279.90 Yes Lock/47 Defeasance/71 0%/2 0.1325
27257 6/1/10 1 73,275.67 Yes Lock/47 Defeasance/71 0%/2 0.1325
27271 7/1/10 1 40,683.41 Yes Lock/35 Defeasance/83 0%/2 0.1325
27433 5 45,455.50 No Lock/25 Defeasance/93 0%/2 0.1325
27619 5 25,519.17 No Lock/25 Defeasance/93 0%/2 0.1325
27754 5 25,346.42 No Lock/25 Defeasance/93 0%/2 0.1325
27800 5 207,985.90 No Lock/26 Defeasance/93 0%/1 0.0700
27974 5 16,721.59 No Lock/25 Defeasance/93 0%/2 0.1325
27974-A NAP NAP
27974-B NAP NAP
28000 7/1/10 1 51,704.02 Yes Lock/47 Defeasance/69 0%/4 0.1325
28001 7/1/10 1 61,283.39 Yes Lock/47 Defeasance/69 0%/4 0.1325
00-0000000 1 19,211.25 No Lock/26 Defeasance/30 0%/4 0.1325
00-0000000 1 28,943.89 No Lock/26 Defeasance/30 0%/4 0.1325
00-0000000 1 46,305.46 No Lock/26 Defeasance/30 0%/4 0.1325
00-0000000 1 9,868.06 No Lock/36 Defeasance/80 0%/4 0.2575
00-0000000 1 11,131.59 No Lock/35 Defeasance/81 0%/4 0.1325
00-0000000 1 17,504.19 No Lock/31 Defeasance/85 0%/4 0.1325
00-0000000 1 11,475.25 No Lock/29 Defeasance/87 0%/4 0.2575
00-0000000 1 11,407.16 No Lock/28 Defeasance/88 0%/4 0.2575
00-0000000 1 19,081.28 No Lock/31 Defeasance/85 0%/4 0.1325
00-0000000 1 7,777.90 No Lock/29 Defeasance/87 0%/4 0.2575
00-0000000 1 24,797.35 No Lock/29 Defeasance/87 0%/4 0.1325
00-0000000 1 8,510.96 No Lock/30 Defeasance/86 0%/4 0.2575
01-1024948-A NAP NAP
Schedule I-3
LOAN
NUMBER NAME ADDRESS CITY
01-1024948-B Advance Auto -- Wellsboro 000 Xxxx Xxxxxx Xxxxxxxxx
00-0000000 College Park Apartments 0000 Xxxxxxx Xxxxxx Lacey
00-0000000 Sunset Pointe Apartments 10104-10110 NE 60th Street Xxxxxxxx
00-0000000 Southlake Market Loop 2830 -- 2840 Market Loop Southlake
00-0000000 K-Mart Retail -- Xxxxxx, Xxxxxxxx 00000 East Colfax Road Aurora
00-0000000 Los Xxxxxxx Apartments 000 Xxxx Xxxxxx Xxxxxx
00-0000000 0000 X.X. 00xx Xxxxxx Apartments 2170 N.W. 11 Street Miami
Grand
00-0000000 K-Mart Retail -- Grand Island 0000 Xxxx 00xx Xxxxxx Island
00-0000000 Southport Associates Retail 354 -- 000 Xxxxxxx Xxxxxxxxx Xxxxxxxxx
00-0000000 Universal Shoppes Retail 6807 -- 6809 Visitors Circle Xxxxxxx
Xxxxxx
00-0000000 Ralph's Xxxxxx Valley Retail 00000 Xxxxxx Xxxxxxxxx Xxxxxx
00-0000000 The Xxxxxxx Apartments -- Lacey, WA 3428 West XxXxxx Road Bellingham
00-0000000 East Colorado Boulevard Retail 0000 Xxxx Xxxxxxxx Xxxxxxxxx Pasadena
00-0000000 Across Lenox Shopping Center 3425 -- 0000 Xxxxx Xxxx Xxxxxxx
00-0000000 Buckingham Apartments 0000 Xxxxxxxxxx Xxxxx Xx. Xxxxx
00-0000000 Xx Xxxx Xxxxxx Xxxxxxxx 000 Xxxxx Xx Brea Avenue Inglewood
00-0000000 K-Mart Retail -- Aurora, Illinois 0000 Xxxxx Xxxx Xxxxxx Xxxxxx
501 -- 557 Azusa Avenue & 1751
00-0000000 Pioneer Center Retail East Xxxxxxx Avenue West Covina
00-0000000 K-Mart Retail -- Chicago 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxx
Sierra Xxxxxxx Apartments (Richard's
00-0000000 Place) 0000 Xxxxxxxx Xxxxx Sparks
00-0000000 0000 Xxxxxxxx Xxxx Xxxxxx Xxxxxxxx 0000 Xxxxxxxx Road Springfield
00-0000000 K-Mart Retail -- Xxxxx Xxxx, XX X.X. Xxxxx 00 Xxxxx Xxxx
00-0000000 Chili's Xxxxx XXX xx XX Xxxxxxx 00 and Sarasota
Robinhood Street
CUT-OFF ANTICIPATED
LOAN INTEREST RATE ORIGINAL DATE REMAINING MATURITY REPAYMENT
NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE DATE
01-1024948-B Pennsylvania 16901
00-0000000 Xxxxxxxxxx 00000 7.9400 Fixed 1,550,000.00 1,548,229.15 118 6/1/10
00-0000000 Washington 98033 8.1900 Fixed 1,200,000.00 1,195,295.64 113 1/1/10
00-0000000 Texas 76092 8.7500 Fixed 1,030,000.00 1,028,713.35 117 5/1/10
00-0000000 Colorado 80011 8.2500 Fixed 3,080,000.00 3,076,763.86 118 6/1/25 6/1/10
00-0000000 Texas 78041 8.5000 Fixed 1,920,000.00 1,916,209.88 116 4/1/10
00-0000000 Florida 33125 8.9900 Fixed 1,000,000.00 997,981.72 115 3/1/10
00-0000000 Xxxxxxxx 00000 8.1250 Fixed 2,980,000.00 2,972,079.49 117 5/1/25 5/1/10
00-0000000 Indiana 46142 8.5000 Fixed 1,430,000.00 1,428,062.42 117 5/1/10
00-0000000 Florida 32819 9.5000 Fixed 1,108,000.00 1,105,250.34 114 2/1/10
00-0000000 California 92553 8.7500 Fixed 1,960,000.00 1,939,531.68 176 4/1/15
00-0000000 Washington 98226 8.3000 Fixed 3,000,000.00 2,996,891.05 118 6/1/10
00-0000000 California 91107 9.5000 Fixed 510,000.00 509,135.58 115 3/1/10
00-0000000 Xxxxxxx 00000 7.9200 Fixed 2,500,000.00 2,487,611.93 237 5/1/20
00-0000000 Missouri 63108 8.3500 Fixed 1,125,000.00 1,123,850.40 118 6/1/10
00-0000000 California 90301 8.3750 Fixed 2,925,000.00 2,920,877.48 117 5/1/10
00-0000000 Illinois 60506 8.1800 Fixed 6,970,000.00 6,959,569.51 117 5/1/10
00-0000000 California 91791 8.8750 Fixed 2,100,000.00 2,098,154.13 118 6/1/10
00-0000000 Illinois 60659 8.1800 Fixed 7,905,000.00 7,893,170.30 117 5/1/10
00-0000000 Nevada 89431 8.3900 Fixed 2,050,000.00 2,045,826.52 116 4/1/10
00-0000000 Virginia 22151 8.3750 Fixed 2,250,000.00 2,246,828.81 117 5/1/10
00-0000000 Indiana 46614 8.5700 Fixed 2,700,000.00 2,699,030.49 119 7/1/10
00-0000000 Florida 34233 8.4200 Fixed 3,950,000.00 3,944,510.72 117 5/1/10
DAY CREDIT BROKER ADDITIONAL
LOAN PAYMENT MONTHLY ARD LEASE STRIP SERVICING SERVICING
NUMBER DUE PAYMENT LOAN LOAN DEFEASANCE LOAN FEE LOAN FEE
01-1024948-B NAP NAP
00-0000000 1 11,308.59 No Lock/26 Defeasance/87 0%/7 0.1325
00-0000000 1 8,964.63 No Lock/31 Defeasance/82 0%/7 0.2575
00-0000000 1 8,103.01 No Lock/27 Defeasance/89 0%/4 0.2575
00-0000000 1 23,139.01 Yes Lock/26 Defeasance/90 0%/4 0.1325
00-0000000 1 14,763.14 No Lock/28 Defeasance/88 0%/4 0.1325
00-0000000 1 8,039.03 No Lock/29 Defeasance/87 0%/4 0.2575
00-0000000 1 23,247.43 Yes Lock/27 Defeasance/89 0%/4 0.1325
00-0000000 1 10,995.46 No Lock/27 Defeasance/89 0%/4 0.1325
00-0000000 1 9,316.66 No Lock/30 Defeasance/86 0%/4 0.2575
00-0000000 1 19,589.19 No Lock/28 Defeasance/148 0%/4 0.1325
00-0000000 1 22,643.54 No Lock/26 Defeasance/87 0%/7 0.1325
00-0000000 1 4,288.36 No Lock/29 Defeasance/87 0%/4 0.2575
00-0000000 1 20,968.28 No Lock/27 Defeasance/209 0%/4 0.1325
00-0000000 1 8,530.97 No Lock/26 Defeasance/90 0%/4 0.2575
00-0000000 1 22,232.11 No Lock/27 Defeasance/89 0%/4 0.1325
00-0000000 1 52,020.68 No Lock/27 Defeasance/89 0%/4 0.1325
00-0000000 1 16,708.54 No Lock/26 Defeasance/90 0%/4 0.1325
00-0000000 1 58,999.06 No Lock/27 Defeasance/89 0%/4 0.1325
00-0000000 1 15,603.19 No Lock/28 Defeasance/88 0%/4 0.1325
00-0000000 1 17,101.63 No Lock/27 Defeasance/89 0%/4 0.1325
00-0000000 1 20,894.76 No Lock/25 Defeasance/91 0%/4 0.1325
00-0000000 1 30,148.42 No Lock/27 Defeasance/89 0%/4 0.1325
Schedule I-4
LOAN
NUMBER NAME ADDRESS CITY
00-0000000 Xxxxxxx of Gwinnett County Apartments 9-22 and 00-00 Xxxxxxx Xxxxx Xxxxxxxxxxxxx
00-0000000 BRC Plaza Shopping Center 12375 -- 12505 West Chinden
Boulevard Boise
00-0000000 Denver Creek Apartments 0000 Xxxxx Xxxxxx Xxxxxx Boise
Intermountain Self Storage #1 (Idaho Falls,
00-0000000 ID) 0000 Xxxxxxxxx Xxxx Xxxxx Xxxxx
Intermountain Self Storage #2 (Chubbuck,
00-0000000 ID) 000 Xxxx Xxxxxx Xxxxxx Chubbuck
Intermountain Self Storage #3 (Chubbuck,
00-0000000 ID) 0000 Xxxxxx Xxxx Chubbuck
09-0001327 Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 00000-00000 Xxxxxxxxxx Xxxxx Parker
941, 947, 955, 963, 971, 973 and
09-0001331 Xxxx-Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx 000 Xxxx Xxxxxx Xxxx Chandler
09-0001332 Fry's at the Island 000 Xxxx Xxxxxx Xxxx Xxxxxxx
09-0001333 Xxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxx Xxxx Drive Champaign
09-0001335 Mountain View Shopping Center 0000 Xxxxx Xxxxxxxx Xxxxxx Ardmore
09-0001336 Xxxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
09-0001337 Metro Arts Building 0000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
0000, 7469, 7473, 7477 West Lake
09-0001338 Summerhill Xxxxxx Xxxxx Xxxx Xxxxxxxxx Xxx Xxxxx
00-0000000 Continental Court 00 X. Xxxxxx Xxxxxx Xxxxxx
09-0001340 Xxx Xxxx Xxxxxxxxxx 000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxxxx
09-0000000 Xxxx Xxxxxx Xxxxxxxxxx 000-000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxx
09-0000000 Insight Aircenter 0000 Xxxx Xxxxxx Xxxx Xxx Xxxxx
00-0000000 The Promenade South Shopping Center 330 Xxxx Road Richardson
09-0001345 South Tech Hacienda Business Park 0000 Xxxxxxx Xxxxxx Xxx Xxxxx
09-0001346 South Tech Polaris Business Park 0000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxx
09-0001347 South Tech Rio 0000 Xxxxxxxxxx Xxxx Xxx Xxxxx
CUT-OFF ANTICIPATED
LOAN INTEREST RATE ORIGINAL DATE REMAINING MATURITY REPAYMENT
NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE DATE
00-0000000 Xxxxxxx 00000 8.1100 Fixed 2,440,000.00 2,438,948.70 119 7/1/10
00-0000000 Idaho 83713 7.8500 Fixed 2,100,000.00 1,988,785.88 212 4/1/18
00-0000000 Idaho 83706 8.2000 Fixed 750,000.00 736,303.80 154 6/1/13
00-0000000 Idaho 83404 9.0000 Fixed 720,000.00 703,181.50 156 8/1/13
00-0000000 Idaho 83202 9.0000 Fixed 625,000.00 610,400.44 156 8/1/13
00-0000000 Idaho 83202 9.0000 Fixed 430,000.00 419,955.64 156 8/1/13
09-0001327 Colorado 80134 9.0600 Fixed 1,900,000.00 1,894,690.66 114 2/1/10
09-0001331 Arizona 85222 8.8200 Fixed 6,000,000.00 5,987,207.96 115 3/1/10
09-0001332 Arizona 85233 8.7500 Fixed 2,080,000.00 2,075,466.17 115 3/1/10
09-0001333 Illinois 75039 8.5700 Fixed 3,585,000.00 3,576,737.12 115 3/1/10
09-0001335 Oklahoma 73401 8.5900 Fixed 6,750,000.00 6,737,011.44 116 4/1/10
09-0001336 Colorado 80127 8.3100 Fixed 2,310,000.00 2,305,191.73 116 4/1/10
09-0001337 California 90036 8.4000 Fixed 4,450,000.00 4,440,965.67 116 4/1/10
09-0001338 Nevada 89128 8.1200 Fixed 6,500,000.00 6,488,014.19 118 6/1/10
09-0001339 Delaware 19711 8.0800 Fixed 4,000,000.00 3,989,267.17 117 5/1/10
09-0001340 California 91505 8.0600 Fixed 8,650,000.00 8,640,429.56 118 6/1/10
09-0001341 California 91505 8.0600 Fixed 21,000,000.00 20,976,765.38 118 6/1/10
09-0001343 Nevada 89120 8.2900 Fixed 2,850,000.00 2,845,875.93 117 5/1/10
09-0001344 Texas 75080 8.9300 Fixed 2,346,000.00 2,343,971.42 118 6/1/10
09-0001345 Nevada 89118 8.8400 Fixed 7,007,000.00 7,000,776.71 118 6/1/10
09-0001346 Nevada 89103 8.8400 Fixed 3,165,000.00 3,162,189.00 118 6/1/10
09-0001347 Nevada 89103 9.0400 Fixed 1,849,000.00 1,847,453.33 118 6/1/10
DAY CREDIT BROKER ADDITIONAL
LOAN PAYMENT MONTHLY ARD LEASE STRIP SERVICING SERVICING
NUMBER DUE PAYMENT LOAN LOAN DEFEASANCE LOAN FEE LOAN FEE
00-0000000 1 18,091.31 No Lock/25 Defeasance/91 0%/4 0.1325
00-0000000 1 17,369.71 No Lock/0
(greater than)
YM or 1%/107 1%/126 0%/7 0.2575
00-0000000 1 5,608.16 No Lock/0
(greater than)
YM or 1%/107 1%/66 0%/7 0.2575
00-0000000 1 6,042.21 No Lock/0
(greater than)
YM or 1%/107 1%/66 0%/7 0.2575
00-0000000 1 5,244.98 No Lock/0
(greater than)
YM or 1%/107 1%/66 0%/7 0.2575
00-0000000 1 3,608.54 No Lock/0
(greater than)
YM or 1%/107 1%/66 0%/7 0.2575
09-0001327 1 15,369.93 No Lock/30 Defeasance/86 0%/4 0.0575
09-0001331 1 47,502.31 No Lock/29 Defeasance/87 0%/4 0.0575
09-0001332 1 16,363.37 No Lock/29 Defeasance/87 0%/4 0.0575
09-0001333 1 27,743.59 No Lock/29 Defeasance/87 0%/4 0.0575
09-0001335 1 52,332.81 No Lock/28 Defeasance/88 0%/4 0.0575
09-0001336 1 17,451.79 No Lock/28 Defeasance/88 0%/4 Yes 0.1075
09-0001337 1 33,901.78 No Lock/28 Defeasance/88 0%/4 Yes 0.1375
09-0001338 1 50,685.86 No Lock/26 Defeasance/89 0%/5 0.0575
09-0001339 1 31,084.93 No Lock/27 Defeasance/89 0%/4 0.0575
09-0001340 1 63,832.81 No Lock/26 Defeasance/90 0%/4 Yes 0.0975
09-0001341 1 154,969.84 No Lock/26 Defeasance/90 0%/4 Yes 0.0975
09-0001343 1 21,491.29 No Lock/27 Defeasance/88 0%/5 0.0575
09-0001344 1 18,758.41 No Lock/35 Defeasance/81 0%/4 Yes 0.1375
09-0001345 1 55,575.12 No Lock/35 Defeasance/81 0%/4 0.0575
09-0001346 1 25,102.79 No Lock/35 Defeasance/81 0%/4 0.0575
09-0001347 1 14,930.72 No Lock/35 Defeasance/81 0%/4 0.0575
Schedule I-5
LOAN
NUMBER NAME ADDRESS CITY
09-0001348 Atrium Center 0000 Xxxxx Xxxxxxxxxx Xxxxx Davie
09-0001350 XxXxxxx'x Warehouse 0000 X. Xxxxxx Xxxxxx Xxxxxxxxxxxxxx
Xxxxxxxx
09-0001351 McCarran Corporate Plaza -- Building 1 0000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxx
09-0001352 Mission Commons 7605 -- 0000 Xxxx 00xx Xxxxxx Westminister
09-0001353 Xxx Xxxxxxxxx Xxxxx 000 Xxxxx Xxxxxxxxx Xxxxxxxxx Corpus
Christi
09-0001355 Crestwood Plaza 0000-0000 Xxxxxxxxx Xxxxxxxxx Frederick
09-0001356 Xxxxx 000 Xxxxx Xxxxxx Xxxxxxxx -- Xxxxx II 0000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxx
09-0001357 Satellite Court Office Building 2250 Satellite Boulevard Duluth
09-0001358 Mebane Mill Apartments -- Phase II 0000-0000 Xxxx Xxxxxxx Xxxxx Mebane
09-0001359 The Plaza at Cottonwood 10242 -- 00000 Xxxxx Xxxxxxxxx Xxxxxxxxxxx
Xxxxxx
09-0001360 Net Perceptions Building 0000 Xxxxxx Xxxxx Xxxxx Xxxx Xxxxxxx
09-0001361 Meriden Xxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxx Xxxx Xxxxxx Xxxxxxx
09-0001362 Crystal River Shopping Center 0000 Xxxxxxx 000 Xxxxxxxxxx
09-0001364 Clock Xxxxx Xxxxx 0000-0000 Xxxx Xxxxxx X Lancaster
09-0001368 Roanoke Portfolio Various Roanoke
09-0001368-A Valley Park Center 5305 & 0000 Xxxxxx Xxxx Xxxxx Xxxxxxx
09-0001368-B National Park Services Office Building 5162 Valleypointe Parkway Roanoke
09-0001368-C Park at Valleypointe 5221, 5228, 0000 Xxxxxxxxxxxx Xxxxxxx
Xxxx & 0000 X. Xxxxxxxxx Xxxxx
DBM10100 Xxxxxxxxx Portfolio Nantucket Island Nantucket
DBM10118 Mervyn's Plaza 3643-3753 Camp Wisdom Road Dallas
DBM10304 Riverside Green Apartments 0000 Xxxxxx Xxxxxx Xxxxxxxx
XXX00000 Bulova Technologies Building 000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxx
CUT-OFF
LOAN INTEREST RATE ORIGINAL DATE REMAINING MATURITY
NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE
09-0001348 Florida 33328 8.7400 Fixed 5,743,000.00 5,735,553.95 118 6/1/10
09-0001350 Pennsylvania 17402 8.9100 Fixed 4,000,000.00 3,958,717.29 118 6/1/10
09-0001351 Nevada 89107 8.3200 Fixed 5,300,000.00 5,294,537.88 118 6/1/10
09-0001352 Colorado 80005 9.4100 Fixed 11,350,000.00 11,341,541.38 58 6/1/05
09-0001353 Texas 78401 8.9700 Fixed 19,000,000.00 18,994,290.82 119 7/1/10
09-0001355 Maryland 21703 8.3100 Fixed 4,550,000.00 4,548,184.30 119 7/1/10
09-0001356 Xxxxxxx 00000 8.6000 Fixed 3,500,000.00 3,496,666.59 118 6/1/10
09-0001357 Xxxxxxx 00000 8.6000 Fixed 4,050,000.00 4,046,142.76 118 6/1/10
09-0001358 Xxxxx Xxxxxxxx 00000 8.2800 Fixed 3,600,000.00 3,598,546.44 119 7/1/10
09-0001359 Xxx Xxxxxx 00000 8.4500 Fixed 9,928,000.00 9,924,253.78 119 7/1/10
09-0001360 Minnesota 55344 8.6100 Fixed 3,830,000.00 3,828,647.78 119 7/1/10
09-0001361 Xxxxxxxxxxx 00000 8.6500 Fixed 7,900,000.00 7,897,258.07 119 7/1/10
09-0001362 Colorado 81623 8.4000 Fixed 3,360,000.00 3,358,706.25 119 7/1/10
09-0001364 California 93536 8.5100 Fixed 2,125,000.00 2,124,217.65 119 7/1/10
09-0001368 Virginia 24019 8.3000 Fixed 11,600,000.00 11,600,000.00 120 8/1/10
09-0001368-A Virginia 24019
09-0001368-B Virginia 24019
09-0001368-C Virginia 24019
DBM10100 Xxxxxxxxxxxxx 00000 9.0300 Fixed 18,500,000.00 18,463,148.46 115 3/1/30
DBM10118 Texas 75237 8.8800 Fixed 2,895,000.00 2,888,945.53 115 3/1/10
DBM10304 Ohio 43212 8.1400 Fixed 3,850,000.00 3,841,605.17 116 4/1/30
DBM10594 Pennsylvania 17603 8.5600 Fixed 6,400,000.00 6,384,510.35 117 5/1/25
ANTICIPATED DAY CREDIT BROKER ADDITIONAL
LOAN REPAYMENT PAYMENT MONTHLY ARD LEASE STRIP SERVICING SERVICING
NUMBER DATE DUE PAYMENT LOAN LOAN DEFEASANCE LOAN FEE LOAN FEE
09-0001348 1 46,231.77 No Lock/26 Defeasance/90 0%/4 0.0575
09-0001350 1 50,755.58 No Lock/26 Defeasance/90 0%/4 0.0575
09-0001351 1 40,078.24 No Lock/26 Defeasance/90 0%/4 0.0575
09-0001352 1 94,692.56 No Lock/26 Defeasance/30 0%/4 0.0575
09-0001353 1 152,468.35 No Lock/25 Defeasance/91 0%/4 0.0575
09-0001355 1 34,374.74 No Lock/25 Defeasance/91 0%/4 0.0575
09-0001356 1 27,160.40 No Lock/26 Defeasance/90 0%/4 0.0575
09-0001357 1 31,428.47 No Lock/26 Defeasance/90 0%/4 0.0575
09-0001358 1 27,121.56 No Lock/25 Defeasance/91 0%/4 0.0575
09-0001359 1 75,986.21 No Lock/25 Defeasance/91 0%/4 0.0575
09-0001360 1 29,748.48 No Lock/25 Defeasance/91 0%/4 0.0575
09-0001361 1 61,585.96 No Lock/25 Defeasance/91 0%/4 0.0575
09-0001362 1 25,597.75 No Lock/25 Defeasance/91 0%/4 Yes 0.1075
09-0001364 1 16,354.47 No Lock/25 Defeasance/91 0%/4 0.0575
09-0001368 1 87,555.01 No Lock/24 Defeasance/89 0%/7 0.0575
09-0001368-A NAP NAP
09-0001368-B NAP NAP
09-0001368-C NAP NAP
DBM10100 3/1/10 1 149,254.70 Yes Lock/29 Defeasance/87 0%/4 0.0575
DBM10118 1 23,044.20 No Lock/29 Defeasance/87 0%/4 0.0575
DBM10304 4/1/10 1 28,626.58 Yes Lock/48 Defeasance/68 0%/4 0.0575
DBM10594 5/1/10 1 51,793.57 Yes Lock/27 Defeasance/89 0%/4 0.0575
Schedule I-6
LOAN
NUMBER NAME ADDRESS CITY
DBM10627 Chesterfield Crossing 00000 Xxxxxxxxxx Xxxxxxxx Xxxxxxxx
0000-0000 Xxxxxx & 5305-5319
DBM10628 Xxxxxxx'x Village Square Breezeway Toledo
DBM10749 Wall Street & Northgate Office Buildings Various Various
DBM10749-A Wall Street Service Center 0000 Xxxx Xxxxxx Xxxxxx
DBM10749-B Xxxxxxxxx Xxxxxx Xxxxxxxx 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx
DBM10982 Eastlake Commons 44801-44975 Xxxxx Xxxx Xxxxxxxx
Xxxxxxx
XXX00000 Xxxxx Xxxx Office Courte 000-000 Xxxxxxxxxxx Xxxxx Xxxxxxxx
DBM11301 Tory Estates 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxx
DBM11379 City Centre Office Building 000 Xxxx Xxxx Xxxx Xxxxxx Xxxxxxx
DBM11402 Xxxxxxx Xxxx Xxxxxxxxxx 00000 Xxxx Xxxxxx Xxxxxx
DBM11414 536 & 000 Xxxxxxx Xxxxxx 536 & 000 Xxxxxxx Xxxxxx Perth
Amboy
DBM11651 Briarwood Manor Apartments 1351 Good Intent Road Deptford
DBM11828 The Lafayette Building 433 -- 000 Xxxxxxxx Xxxxxx Xxxxxxxxxxxx
XXX00000 Xxxxxx of Los Angeles Office Building 0000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
DBM1685 Pacific Point Apartments 1714-1746 Ximeno Ave. & Long Beach
0000-0000 Xxxx Xxxxxxxx Xxxxxx
DBM3794 Gold Coast Galleria East 1021-1029 North Xxxxx Street Chicago
DBM5774 Xxxxxxxxx Run Apartments 000 Xxx Xxxx Xxxxxxxxxx
DBM6173 Technology Station 000-000 Xx Xxxxxx Xxxx Xxxxx Xxxxx
DBM6288 Centereach Mall 0000 Xxxxxx Xxxxxxx Xxxx Xxxxxxxxxx
XXX0000 Mobile Holiday Inn 000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxx
XXX0000 Woodbury Shopping Center 000 Xxxxxxxx Xxxx Xxxxxxxxxx
DBM8009 0000 Xxxxx 00xx Xxxxxx 0000 X 00 Xxxxxxx & 0000 X 00xx Xxxxxxxxx
Xxxxxx
DBM8484 Portsmouth Industrial Building 125 Aviation Avenue Portsmouth
DBM8646 Autumn Oaks Apartments 000 Xxxx Xxxxxx Xxxx Xxxxxxx
XXX0000 000 X. Xxxx Xxxxxx 901 X. Xxxx Street Alexandria
CUT-OFF ANTICIPATED
LOAN INTEREST RATE ORIGINAL DATE REMAINING MATURITY REPAYMENT
NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE DATE
DBM10627 Virginia 23235 8.5000 Fixed 713,000.00 708,229.26 109 9/1/09
DBM10628 Ohio 43613 8.5000 Fixed 1,100,000.00 1,088,138.45 109 9/1/09
DBM10749 Various Various 8.9200 Fixed 3,650,000.00 3,642,463.61 115 3/1/30 3/1/10
XXX00000-X Xxxxx 00000
DBM10749-B Texas 78758
DBM10982 Michigan 48313 8.4500 Fixed 8,930,000.00 8,912,122.40 116 4/1/10
DBM11067 Illinois 60559 8.7600 Fixed 8,200,000.00 8,172,390.69 113 1/1/10
DBM11301 Xxx Xxxxxx 00000 8.4920 Fixed 3,400,000.00 3,387,689.16 113 1/1/30 1/1/10
DBM11379 Virginia 23510 8.3500 Fixed 3,400,000.00 3,395,170.54 117 5/1/30 5/1/10
DBM11402 Xxxxxx 00000 8.5800 Fixed 6,155,000.00 6,140,857.01 115 3/1/10
DBM11414 Xxx Xxxxxx 00000 8.9000 Fixed 14,000,000.00 13,946,088.77 115 3/1/30 3/1/10
DBM11651 Xxx Xxxxxx 00000 8.6700 Fixed 3,100,000.00 3,093,071.81 295 3/1/25
DBM11828 Pennsylvania 19106 8.5900 Fixed 7,550,000.00 7,535,472.06 116 4/1/10
DBM12061 California 90057 8.6000 Fixed 8,850,000.00 8,841,571.19 118 6/1/30 6/1/10
DBM1685 California 90815 7.3800 Fixed 11,905,695.00 11,803,024.10 87 4/1/29 11/1/07
DBM3794 Illinois 60610 7.5800 Fixed 3,200,000.00 3,147,693.40 99 11/1/28 11/1/08
DBM5774 Xxx Xxxxxx 00000 8.3400 Fixed 9,000,000.00 8,966,072.17 113 1/1/10
DBM6173 California 95050 7.6050 Fixed 37,200,000.00 36,811,929.25 104 4/1/29 4/1/09
DBM6288 Xxx Xxxx 00000 8.1700 Fixed 23,300,000.00 23,197,883.67 112 12/1/09
DBM7785 Alabama 36609 8.7600 Fixed 4,000,000.00 3,973,509.23 112 12/1/09
DBM7884 Xxx Xxxx 00000 7.8600 Fixed 7,000,000.00 6,949,369.13 108 8/1/09
DBM8009 Florida 33020 8.5100 Fixed 4,968,000.00 4,950,097.13 113 1/1/10
DBM8484 Xxx Xxxxxxxxx 00000 8.5200 Fixed 3,000,000.00 2,988,061.99 112 12/1/09
DBM8646 Xxxxxxxxxx 00000 7.7800 Fixed 5,100,000.00 5,068,822.90 110 10/1/09
DBM8925 Virginia 22314 8.9350 Fixed 4,350,000.00 4,336,049.27 113 1/1/10
DAY CREDIT BROKER ADDITIONAL
LOAN PAYMENT MONTHLY ARD LEASE STRIP SERVICING SERVICING
NUMBER DUE PAYMENT LOAN LOAN DEFEASANCE LOAN FEE LOAN FEE
DBM10627 5,545.03 No Lock/59 (greater than)
YM or 1%/57 0%/4 0.0575
DBM10628 1 8,949.44 No Lock/47 (greater than)
YM or 1%/69 0%/4 0.0575
DBM10749 1 29,158.88 Yes Lock/35 Defeasance/81 0%/4 0.0575
DBM10749-A NAP NAP
DBM10749-B NAP NAP
DBM10982 1 68,347.75 No Lock/28 Defeasance/88 0%/4 0.0575
DBM11067 1 64,568.01 No Lock/31 Defeasance/85 0%/4 0.0575
DBM11301 1 26,123.78 Yes Lock/31 Defeasance/85 0%/4 0.0575
DBM11379 1 25,782.48 Yes Lock/27 Defeasance/89 0%/4 0.0575
DBM11402 1 47,676.03 No Lock/29 Defeasance/87 0%/4 0.0575
DBM11414 1 116,530.28 Yes Lock/29 Defeasance/87 0%/4 0.0575
DBM11651 1 24,210.80 No Lock/29 Defeasance/91
(greater than)
YM or 1%/119
1%/57 0%/4 0.0575
DBM11828 1 58,535.22 No Lock/28 Defeasance/88 0%/4 0.0575
DBM12061 1 68,677.04 Yes Lock/26 Defeasance/90 0%/4 0.0575
DBM1685 1 82,270.25 Yes Lock/57 Defeasance/59 0%/4 0.0575
DBM3794 1 22,550.42 Yes Lock/59 Defeasance/57 0%/4 0.0575
DBM5774 1 68,184.27 No Lock/31 Defeasance/85 0%/4 0.0575
DBM6173 1 262,787.65 Yes Lock/71 (greater than)
YM or 1%/45 0%/4 0.0575
DBM6288 1 173,736.44 No Lock/47 Defeasance/69 0%/4 0.0575
DBM7785 1 32,912.93 No Lock/35 Defeasance/81 0%/4 0.0575
DBM7884 1 50,682.00 No Lock/35 Defeasance/81 0%/4 0.0575
DBM8009 1 38,234.97 No Lock/31 Defeasance/85 0%/4 0.0575
DBM8484 1 23,109.94 No Lock/47 Defeasance/69 0%/4 0.0575
DBM8646 1 36,642.81 No Lock/35 Defeasance/81 0%/4 0.0575
DBM8925 1 34,797.83 No Lock/35 Defeasance/81 0%/4 0.0575
Schedule I-7
LOAN
NUMBER NAME ADDRESS CITY
DBM8977 Fashion Terrace Apartments 0000 Xxxxxx Xxxx Xxx Xxxxx
DBM9440 Sugar Creek Apartments Various Various
DBM9440-A Sugar Creek Apartments 000 Xxxxxx Xxxxxx Normal
DBM9440-B Xxxxxxxxx Xxxxxxxxxx 000 Xxxxxx Xxxxxx Normal
DBM9551 Xxxxxxxxx Xxxxxxx Xxxxxxxxxx 0000 00xx Xxxxxx Xxxxxxxxx
DBM9724 X'Xxxxxx Portfolio Various Various
DBM9724-A Cross Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 000X -- 000X Xxxxxxxxx Drive Xxxxxxx
DBM9724-B Denver Lake Shopping Center 6097 -- 0000 Xxxxx Xxx. 00 Xxxxxx
DBM9724-C Village of Wendell Shopping Center 000-000 XX Xxxxxxx 00 Wendell
DBM9724-D Northside Square Shopping Center 1100 -- 0000 Xxxxxxxx Xxxx Xxxxxxxxxx
DBM9724-E River Park Shopping Center 1092 -- 0000 Xxxxxx Xxxx Xxxxx Xxxxxx
24
CUT-OFF ANTICIPATED
LOAN INTEREST RATE ORIGINAL DATE REMAINING MATURITY REPAYMENT
NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE DATE
DBM8977 California 92108 7.9100 Fixed 4,550,000.00 4,528,629.09 112 12/1/09
DBM9440 Various Various 8.2900 Fixed 3,200,000.00 3,187,777.42 113 1/1/10
XXX0000-X Xxxxxxxx 00000
DBM9440-B Illinois 61761
DBM9551 Minnesota 55901 8.1500 Fixed 16,400,000.00 16,316,457.73 111 11/1/09
DBM9724 Various Various 8.5700 Fixed 10,185,000.00 10,165,289.66 116 4/1/30 4/1/10
DBM9724-A Xxxxx Xxxxxxxx 00000
DBM9724-B Xxxxx Xxxxxxxx 00000
DBM9724-C Xxxxx Xxxxxxxx 00000
DBM9724-D Xxxxx Xxxxxxxx 00000
DBM9724-E Virginia 24179
DAY CREDIT BROKER ADDITIONAL
LOAN PAYMENT MONTHLY ARD LEASE STRIP SERVICING SERVICING
NUMBER DUE PAYMENT LOAN LOAN DEFEASANCE LOAN FEE LOAN FEE
DBM8977 1 33,101.26 No Lock/32 Defeasance/84 0%/4 0.0575
DBM9440 1 24,130.58 No Lock/31 Defeasance/85 0%/4 0.0575
DBM9440-A NAP NAP
DBM9440-B NAP NAP
DBM9551 1 122,056.69 No Lock/33 Defeasance/83 0%/4 0.0575
DBM9724 1 78,819.67 Yes Lock/28 Defeasance/88 0%/4 0.0575
DBM9724-A NAP NAP
DBM9724-B NAP NAP
DBM9724-C NAP NAP
DBM9724-D NAP NAP
DBM9724-E NAP NAP
Schedule I-8
SCHEDULE II
CLOSING MORTGAGE FILE REVIEW CERTIFICATION
Schedule II-1
SCHEDULE III
POST-CLOSING MORTGAGE FILE REVIEW CERTIFICATION
Schedule IV-1
SCHEDULE IV
ENVIRONMENTAL POLICY MORTGAGE LOANS
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LOAN NUMBER NAME
00-0000000 Bladensburg Shopping Center
00-0000000 The Corners Shopping Center
00-0000000 Stonegate Apartments
00-0000000 Cypress Square Shopping Center
00-0000000 Universal Shoppes Retail
00-0000000 Advance Auto Parts Retail (Combined)
00-0000000 Advance Auto - Xxxxx
00-0000000 Advance Auto - Wellsboro
00-0000000 0000 X.X. 00xx Xxxxxx Apartments
00-0000000 The Shoppes at Kiln Creek
00-0000000 Carousel Ranch Mobile Home Park
00-0000000 East Colorado Boulevard Retail
00-0000000 Gardena Village Shopping Center
00-0000000 Ralph's Xxxxxx Valley Retail
00-0000000 Sierra Xxxxxxx Apartments (Richard's Place)
00-0000000 Citrus Heights Plaza Shopping Center
00-0000000 Southport Associates Retail
00-0000000 Across Lenox Shopping Center
00-0000000 BRC Plaza Shopping Center
00-0000000 Denver Creek Apartments
00-0000000 Intermountain Self Storage #1 (Idaho Falls, ID)
00-0000000 Intermountain Self Storage #2 (Chubbuck, ID)
00-0000000 Intermountain Self Storage #3 (Chubbuck, ID)
00-0000000 0000 Xxxxxxxx Xxxx Office Building
00-0000000 K-Mart Retail - Grand Island
00-0000000 Southlake Market Loop
00-0000000 Buckingham Apartments
00-0000000 College Park Apartments
00-0000000 Continental Office Building
00-0000000 Xxxxxxxxx'x Union Building
00-0000000 DuPont Medical Building
00-0000000 K-Mart Retail - Aurora, Colorado
00-0000000 Pioneer Center Retail
00-0000000 Xxxxxxx of Gwinnett County Apartments
00-0000000 K-Mart Retail - South Bend, IN
Schedule IV-1
SCHEDULE V
SPECIFIED DEBT SERVICE RESERVE LOANS
LOAN NUMBER NAME
27800 Rialto Building
26002 Paradise Plaza Inn
27256 Hampton Inn
09-0001335 Mountainview Shopping Center
Schedule V-1
Schedule VI-1
SCHEDULE VI
SPECIFIED LETTER OF CREDIT LOANS
LOAN NUMBER NAME
NONE NOT APPLICABLE
Schedule VI-1
SCHEDULE VII
SPECIFIED EARNOUT RESERVE LOANS
LOAN NUMBER NAME
00000 Xxxx xx Xxxxxxx Xxxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxx Shopping Center
27800 Rialto Building
00-0000000 Gardena Village Shopping Center
00-0000000 The Xxxxxxx Apartments
00-0000000 K-Mart Retail - Aurora, Colorado
00-0000000 Pioneer Center Retail
09-0001353 One Shoreline Plaza