EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.,
DEPOSITOR,
GMAC COMMERCIAL MORTGAGE CORPORATION,
MASTER SERVICER,
GMAC COMMERCIAL MORTGAGE CORPORATION,
SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION,
TRUSTEE
AND
ABN AMRO BANK N.V.,
FISCAL AGENT
POOLING AND SERVICING AGREEMENT
DATED AS OF JUNE 1, 2002
--------------------------
$737,674,251
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2
Table of Contents
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ARTICLE I DEFINITIONS..........................................................................4
SECTION 1.01 Defined Terms...............................................................4
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool.......................67
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES.....................68
SECTION 2.01 Establishment of Trust; Conveyance of Mortgage Loans.......................68
SECTION 2.02 Acceptance by Trustee......................................................72
SECTION 2.03 Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans for
Document Defects in Mortgage Files and Breaches of Representations and
Warranties.................................................................76
SECTION 2.04 Issuance of Class R-I Certificates; Creation of REMIC I Regular
Interests..................................................................80
SECTION 2.05 Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by the
Trustee....................................................................80
SECTION 2.06 Issuance of Class R-II Certificates; Creation of REMIC II Regular
Interest...................................................................80
SECTION 2.07 Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by
Trustee....................................................................81
SECTION 2.08 Issuance of REMIC III Certificates.........................................81
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND......................................81
SECTION 3.01 Servicing and Administration of the Mortgage Loans.........................81
SECTION 3.02 Collection of Mortgage Loan Payments.......................................83
SECTION 3.03 Collection of Taxes, Assessments and Similar Items; Servicing Accounts
and Reserve Accounts.......................................................83
SECTION 3.04 Certificate Account, Distribution Account and Interest Reserve Account.....85
SECTION 3.05 Permitted Withdrawals From the Certificate Account, the Distribution
Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Reserve Account...................................................88
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........................................92
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions and Fidelity
Coverage...................................................................94
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption
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Agreements; Subordinate Financing; Defeasance..............................97
SECTION 3.09 Realization Upon Defaulted Mortgage Loans.................................101
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files...........................104
SECTION 3.11 Servicing Compensation; Nonrecoverable Servicing Advances.................105
SECTION 3.12 Inspections; Collection of Financial Statements...........................109
SECTION 3.13 Annual Statement as to Compliance.........................................110
SECTION 3.14 Reports by Independent Public Accountants.................................110
SECTION 3.15 Access to Certain Information.............................................111
SECTION 3.16 Title to REO Property; REO Account........................................111
SECTION 3.17 Management of REO Property; Independent Contractors.......................113
SECTION 3.18 Sale of Defaulted Mortgage Loans..........................................115
SECTION 3.19 Sale of REO Property......................................................119
SECTION 3.20 Additional Obligations of the Master Servicer and the Special Servicer....120
SECTION 3.21 Modifications, Waivers, Amendments and Consents...........................123
SECTION 3.22 Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping............................................................127
SECTION 3.23 Sub-Servicing Agreements..................................................128
SECTION 3.24 Designation of Special Servicer by the Majority Certificateholder of
the Controlling Class; the Majority Certificateholder of the
Controlling Class ........................................................129
SECTION 3.25 Lock-Box Accounts and Servicing Accounts..................................132
SECTION 3.26 Representations and Warranties of the Master Servicer and the Special
Servicer..................................................................132
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS.................................134
SECTION 4.01 Distributions.............................................................134
SECTION 4.02 Statements to Certificateholders; Certain Reports by the Master
Servicer and the Special Servicer.........................................145
SECTION 4.03 Delinquency Advances......................................................153
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund Expenses..........155
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ARTICLE V THE CERTIFICATES...................................................................157
SECTION 5.01 The Certificates..........................................................157
SECTION 5.02 Registration of Transfer and Exchange of Certificates.....................157
SECTION 5.03 Book-Entry Certificates...................................................163
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.........................164
SECTION 5.05 Persons Deemed Owners.....................................................164
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER.........................165
SECTION 6.01 Liability of the Depositor, the Master Servicer and the Special Servicer..165
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.................165
SECTION 6.03 Limitation on Liability of the Depositor, the Master Servicer, the
Special Servicer and Others...............................................166
SECTION 6.04 Depositor, Master Servicer and Special Servicer Not to Resign.............167
SECTION 6.05 Rights of the Depositor in Respect of the Master Servicer and the
Special Servicer..........................................................167
ARTICLE VII DEFAULT............................................................................167
SECTION 7.01 Events of Default.........................................................167
SECTION 7.02 Trustee to Act; Appointment of Successor..................................170
SECTION 7.03 Notification to Certificateholders........................................171
SECTION 7.04 Waiver of Events of Default...............................................171
ARTICLE VIII CONCERNING THE TRUSTEE AND THE FISCAL AGENT........................................171
SECTION 8.01 Duties of the Trustee and the Fiscal Agent................................171
SECTION 8.02 Certain Matters Affecting the Trustee and the Fiscal Agent................172
SECTION 8.03 Trustee and Fiscal Agent not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans............................................174
SECTION 8.04 Trustee and Fiscal Agent May Own Certificates.............................174
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of Trustee and Fiscal
Agent.....................................................................174
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SECTION 8.06 Eligibility Requirements for Trustee and Fiscal Agent.....................175
SECTION 8.07 Resignation and Removal of the Trustee and the Fiscal Agent...............176
SECTION 8.08 Successor Trustee and Fiscal Agent........................................177
SECTION 8.09 Merger or Consolidation of Trustee and Fiscal Agent.......................177
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.............................178
SECTION 8.11 Appointment of Custodians.................................................179
SECTION 8.12 Access to Certain Information.............................................179
SECTION 8.13 Representations and Warranties of the Trustee and the Fiscal Agent........181
SECTION 8.14 Filings with the Securities and Exchange Commission.......................183
SECTION 8.15 Fiscal Agent Termination Event............................................183
SECTION 8.16 Procedure Upon Termination Event..........................................184
ARTICLE IX TERMINATION........................................................................184
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans..........184
SECTION 9.02 Additional Termination Requirements.......................................187
ARTICLE X ADDITIONAL REMIC PROVISIONS........................................................188
SECTION 10.01 REMIC Administration......................................................188
SECTION 10.02 Depositor, Master Servicer, Special Servicer, Fiscal Agent, Trustee to
Cooperate.................................................................191
SECTION 10.03 Grantor Trust Administration..............................................192
ARTICLE XI MISCELLANEOUS PROVISIONS...........................................................193
SECTION 11.01 Amendment................................................................193
SECTION 11.02 Recordation of Agreement; Counterparts...................................195
SECTION 11.03 Limitation on Rights of Certificateholders...............................195
SECTION 11.04 GOVERNING LAW............................................................196
SECTION 11.05 Notices..................................................................197
SECTION 11.06 Severability of Provisions...............................................197
SECTION 11.07 Grant of a Security Interest.............................................197
SECTION 11.08 No Partnership...........................................................198
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SECTION 11.09 Successors and Assigns; Beneficiaries.....................................198
SECTION 11.10 Article and Section Headings..............................................198
SECTION 11.11 Notices to the Rating Agencies............................................198
EXHIBITS
Exhibit A-1 Form of Class X-1 Certificate X-0-0
Xxxxxxx X-0 Form of Class X-2 Certificate X-0-0
Xxxxxxx X-0 Form of Class A-1 Certificate X-0-0
Xxxxxxx X-0 Form of Class A-2 Certificate X-0-0
Xxxxxxx X-0 Form of Class A-3 Certificate X-0-0
Xxxxxxx X-0 Form of Class B Certificate X-0-0
Xxxxxxx X-0 Form of Class C Certificate X-0-0
Xxxxxxx X-0 Form of Class D Certificate X-0-0
Xxxxxxx X-0 Form of Class E Certificate A-9-1
Exhibit A-10 Form of Class F Certificate A-10-1
Exhibit A-11 Form of Class G Certificate A-11-1
Exhibit A-12 Form of Class H Certificate A-12-1
Exhibit A-13 Form of Class J Certificate A-13-1
Exhibit A-14 Form of Class K Certificate A-14-1
Exhibit A-15 Form of Class L Certificate A-15-1
Exhibit A-16 Form of Class M Certificate A-16-1
Exhibit A-17 Form of Class N Certificate A-17-1
Exhibit A-18 Form of Class O Certificate A-18-1
Exhibit A-19 Form of Class P Certificate A-19-1
Exhibit A-20 Form of Class R-I Certificate A-20-1
Exhibit A-21 Form of Class R-II Certificate A-21-1
Exhibit A-22 Form of Class R-III Certificate A-22-1
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
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Exhibit D Form of Request for Release D-1
Exhibit E Form of UCC-1 Financing Statement E-1
Exhibit F Methodology to Normalize Net Operating Income and Debt Service Coverage F-1
Exhibit G Form of Distribution Date Statement G-1
Exhibit H-1 Form of Investor Certification H-1-1
Exhibit H-2 Form of Confidentiality Agreement H-2-1
Exhibit I Additional Servicing Fee Schedule I-1
Exhibit J Form of Notice and Certification regarding Defeasance of Mortgage Loans J-1
SCHEDULES
Schedule I Mortgage Loan Schedule Sch. I-1
Schedule II Closing Mortgage File Review Certification Sch. II-1
Schedule III Post-Closing Mortgage File Review Certification Sch. III-1
Schedule IV Environmental Policy Mortgage Loans Sch. IV-1
Schedule V Strip Calculation Schedule Sch. V-1
Schedule VI Broker Strip Schedule Sch. VI-1
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This Pooling and Servicing Agreement (this "Agreement"), is
dated and effective as of June 1, 2002, among GMAC COMMERCIAL MORTGAGE
SECURITIES, INC., as Depositor, GMAC COMMERCIAL MORTGAGE CORPORATION, as Master
Servicer, GMAC COMMERCIAL MORTGAGE CORPORATION, as Special Servicer, LASALLE
BANK NATIONAL ASSOCIATION, as Trustee and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, to be issued
hereunder in multiple Classes, which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund to be created hereunder, the
primary assets of which will be the Mortgage Loans. The aggregate of the initial
Cut-off Date Principal Balances of the Mortgage Loans is approximately
$737,674,252.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Mortgage Loans (exclusive of that
portion of interest payments thereon that constitute Excess Interest) and
certain other related assets subject to this Agreement as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC I". The Class R-I Certificates will represent the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions under federal income
tax law. With respect to each Mortgage Loan, there shall be a corresponding
REMIC I Regular Interest. The designation for each such REMIC I Regular Interest
shall be the loan number for the related Mortgage Loan set forth on the schedule
attached hereto as Schedule I. The REMIC I Remittance Rate (as defined herein)
and the initial Uncertificated Principal Balance of each such REMIC I Regular
Interest shall be based on the Net Mortgage Rate as of the Cut-off Date and the
Cut-off Date Principal Balance, respectively, for the related Mortgage Loan.
Determined solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each such REMIC I
Regular Interest shall be the first Distribution Date that follows the Stated
Maturity Date for the related Mortgage Loan. None of the REMIC I Regular
Interests will be certificated.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II." The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, REMIC II Remittance Rate and the initial Uncertificated Principal
Balance for each of the REMIC II Regular Interests. Determined solely for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each REMIC II Regular Interest shall be the
first Distribution Date that is at least two years after the end of the
remaining amortization schedule of the Mortgage Loan that has, as of the Closing
Date, the longest remaining amortization schedule, irrespective of its scheduled
maturity. None of the REMIC II Regular Interests will be certificated.
REMIC II INITIAL UNCERTIFICATED
DESIGNATION REMITTANCE RATE PRINCIPAL BALANCE
LA-1.................. Variable (*) $ 56,917,000
LA-2-1................ Variable (*) $ 33,130,000
LA-2-2................ Variable (*) $ 89,658,000
LA-3-1................ Variable (*) $ 69,603,000
LA-3-2................ Variable (*) $327,000,000
LB.................... Variable (*) $ 28,584,000
LC.................... Variable (*) $ 8,299,000
LD.................... Variable (*) $ 23,053,000
LE.................... Variable (*) $ 7,376,000
LF.................... Variable (*) $ 9,221,000
LG-1.................. Variable (*) $ 2,913,000
LG-2.................. Variable (*) $ 9,997,000
LH.................... Variable (*) $ 9,220,000
LJ.................... Variable (*) $ 11,066,000
LK.................... Variable (*) $ 12,909,000
LL.................... Variable (*) $ 5,532,000
LM.................... Variable (*) $ 5,533,000
LN.................... Variable (*) $ 9,221,000
LO.................... Variable (*) $ 3,688,000
LP.................... Variable (*) $ 14,754,251
* 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 Loan that has, as of the
Closing Date, the longest remaining amortization schedule, irrespective of its
scheduled maturity.
2
CERTIFICATE INITIAL CLASS
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE
----------- ----------------- -----------------
Class X-1 N/A(1) N/A(2)
Class X-2 N/A(1) N/A(3)
Class A-1 4.386%(4) $ 56,917,000
Class A-2 5.457%(4) $122,788,000
Class A-3 5.775%(4) $396,603,000
Class B 5.902%(4) $ 28,584,000
Class C 5.951%(4) $ 8,299,000
Class D 6.001%(4) $ 23,053,000
Class E 6.060%(4) $ 7,376,000
Class F 6.365%(5) $ 9,221,000
Class G 6.807%(5) $ 12,910,000
Class H 5.805%(5) $ 9,220,000
Class J 5.805%(5) $ 11,066,000
Class K 5.805%(5) $ 12,909,000
Class L 5.805%(5) $ 5,532,000
Class M 5.805%(5) $ 5,533,000
Class N 5.805%(5) $ 9,221,000
Class O 5.805%(5) $ 3,688,000
Class P 5.805%(5) $ 14,754,251
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.
--------
1 The Pass-Through Rate for each of the Class X-1 and Class X-2 Certificates as
described herein.
2 The Class X-1 Certificates will have an original Class X-1 Notional Amount of
$737,674,251. The Class X-1 Certificates will not have a Certificate
Principal Balance and will not be entitled to any distribution of certificate
principal
3 The Class X-2 Certificates will have an original Class X-2 Notional Amount of
$608,899,000. The Class X-2 Certificates will not have a Certificate
Principal Balance and will not be entitled to any distribution of certificate
principal.
4 Initial Pass-Through Rate. The Pass-Through Rate is a fixed rate.
5 Initial Pass-Through Rate. The Pass-Through Rate will be the lesser of the
indicated fixed rate or the Weighted Average Net Mortgage Rate.
3
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
Fiscal Agent agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to any Class of
REMIC III Regular Certificates (other than the Class X Certificates) for any
Distribution Date, one month's interest (calculated on the basis of a 360-day
year consisting of twelve 30-day months) at the Pass-Through Rate applicable to
such Class of Certificates for such Distribution Date, accrued on the Class
Principal Balance of such Class of Certificates outstanding immediately prior to
such Distribution Date. With respect to the Class X-1 and Class X-2 Certificates
for any Distribution Date, one month's interest (calculated on the basis of a
360-day year consisting of twelve 30-day months) at the Class X-1 Pass-Through
Rate or the Class X-2 Pass Through Rate, as applicable, for such Distribution
Date, accrued on the Class X-1 Notional Amount or the Class X-2 Notional Amount,
as applicable, outstanding immediately prior to such Distribution Date.
"Acquisition Date": With respect to any REO Property, the
first day on which such REO Property is considered to be acquired by the Trust
Fund within the meaning of Treasury Regulation Section 1.856-6(b)(1), which is
the first day on which the Trust Fund is treated as the owner of such REO
Property for federal income tax purposes.
"Additional Information": As defined in Section 4.02(a).
"Additional Servicing Fee": With respect to each Additional
Servicing Fee Mortgage Loan, the fee provided for in the Designated Sub-Servicer
Agreement (which may be comprised of a designated sub-servicing fee and an
additional sub-servicing fee) that accrues at the rate per annum set forth on
the Additional Servicing Fee Schedule.
"Additional Servicing Fee Schedule": Exhibit I hereto.
"Additional Servicing Fee Mortgage Loans": The Mortgage Loans
secured by, and any successor REO Mortgage Loans relating to, those Mortgaged
Properties identified on the Additional Servicing Fee Schedule.
"Additional Trust Fund Expense": Any unanticipated expense
within the meaning of Treasury Regulation Section 1.860G-1(b)(3)(iii)
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in
4
the REMIC III Regular Certificateholders' receiving less than the full amount of
principal and/or interest to which they are entitled on any Distribution Date.
"Adjustable Rate Mortgage Loan": A Mortgage Loan, if any, as
to which the related Mortgage Note provides, as of the Closing Date, for
periodic adjustments to the Mortgage Rate thereon based on changes in the
related Index.
"Advance": Any Delinquency Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as the case may be, all in accordance with Section
3.11(f) or Section 4.03(d), as applicable.
"Advance Interest Reconciliation Report". A report prepared by
the Master Servicer, detailing and reconciling on a loan by loan basis, all P&I
Advances, all Servicing Advances, all additional trust fund expenses, all
interest on Advances and all default charges, penalty charges, late fees and
default interest collected.
Adverse Grantor Trust Event": As defined in Section 10.03(e).
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Xxxx REMIC": The single-asset REMIC established with respect
to the mortgage loan identified on the Mortgage Loan Schedule as loan number
09-0001473 which REMIC was created by a REMIC declaration made by Xxxxxxx Sachs
Mortgage Company on April 27, 2002.
"Xxxx REMIC Regular Interest": The REMIC regular interest in
the Xxxx REMIC, which regular interest was transferred and assigned by Xxxxxxx
Xxxxx Mortgage Company to the Depositor pursuant to the Mortgage Loan Purchase
Agreement between the Depositor and Xxxxxxx Sachs Mortgage Company.
"Xxxx REMIC Residual Interest": The REMIC residual interest in
the Xxxx REMIC, which residual interest was transferred and assigned by Xxxxxxx
Xxxxx Mortgage Company to the Depositor pursuant to the Mortgage Loan Purchase
Agreement between the Depositor and Xxxxxxx Sachs Mortgage Company.
5
"Anticipated Repayment Date": With respect to any ARD Loan,
the date upon which such ARD Loan starts to accrue interest at its Revised Rate.
"Applicable State Law": For purposes of Article X, (a) the
laws of the State and City of New York, (b) the laws of the states in which the
Corporate Trust Office of the Trustee and the Primary Servicing Offices of the
Master Servicer and the Special Servicer are located, (c) other state or local
law as to which the Trustee as the REMIC administrator has actual knowledge of
applicability and (d) such other state or local law whose applicability shall
have been brought to the attention of the Trustee as REMIC administrator by
either (i) an opinion of counsel delivered to it, or (ii) written notice from
the appropriate taxing authority as to the applicability of such state law.
"Appraisal": With respect to any Mortgaged Property or REO
Property as to which an appraisal is required or permitted to be performed
pursuant to the terms of this Agreement, either: (i) a narrative appraisal
complying with USPAP conducted by a Qualified Appraiser in the case of Mortgage
Loans and REO Loans with a Stated Principal Balance as of the date of such
appraisal of greater than $2,000,000; or (ii) a limited appraisal and a summary
report of the "market value" of the Mortgaged Property conducted by a Qualified
Appraiser in the case of Mortgage Loans or any REO Loans with a Stated Principal
Balance as of the date of such appraisal of $2,000,000 or less.
"Appraisal Reduction Amount": With respect to any Required
Appraisal Loan, an amount (as calculated on the Determination Date immediately
succeeding the date on which the most recent relevant Appraisal was obtained by
the Master Servicer or the Special Servicer, as the case may be, pursuant to
this Agreement) equal to the excess, if any, of (a) the sum of (i) the Stated
Principal Balance of such Required Appraisal Loan, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer, the Trustee or the
Fiscal Agent all accrued and unpaid interest on such Required Appraisal Loan
through the most recent Due Date 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, the Trustee
or the Fiscal Agent in respect of such Required Appraisal Loan, together with
all unpaid Advance Interest accrued on such Advances, and (iv) all currently due
but unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents in respect of the related Mortgaged Property or REO
Property, net of any Escrow Payments, letters of credit or other reserves held
by the Master Servicer or the Special Servicer with respect to any such item,
over (b) 90% of an amount equal to (i) (x) the Appraised Value of the related
Mortgaged Property or REO Property, as applicable, as determined by such
Appraisal referred to in the parenthetical above and (y) all escrows and
reserves in respect of such Mortgage Loan (other than amounts representing due
and unpaid taxes, assessments, insurance premiums, ground rents and other
amounts due and unpaid with respect to such Mortgage Loan), net of (ii) the
amount of any liens on such property (not accounted for in clause (a)(iv) of
this definition or taken into account in determining such Appraised Value) that
are prior to the lien of the Required Appraisal Loan. Notwithstanding the
foregoing, if an Appraisal is not obtained within 120 days following the
earliest of the dates described in Section 3.20(d) (which, in the case of
Section 3.20(d)(ii), shall be the date of the occurrence of an uncured
delinquency in Monthly Payments), then until such Appraisal is obtained the
Appraisal Reduction Amount will equal 25% of the Stated Principal Balance of the
related Required Appraisal Loan; provided that, upon receipt of an
6
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.
"Archon": Archon Financial, L.P. and its successors and
assigns.
"ARD Loan": Any Mortgage Loan that is designated as such in
the Mortgage Loan Schedule.
"Assignment of Leases": With respect to any Mortgaged
Property, any assignment of leases, rents, security deposits and profits or
similar instrument executed by the Mortgagor, assigning to the mortgagee all of
the income, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment": With respect to any Balloon
Mortgage Loan for its Stated Maturity Date (provided that such Balloon Mortgage
Loan has not been paid in full, and no other Liquidation Event has occurred in
respect thereof, on or before the end of the Collection Period in which such
Stated Maturity Date occurs) and for any subsequent Due Date therefor as of
which such Balloon Mortgage Loan remains outstanding and part of the Trust Fund,
if no Monthly Payment (other than the related Balloon Payment) is due for such
Due Date, the scheduled monthly payment of principal and/or interest deemed to
be due in respect thereof for the Stated Maturity Date and each such subsequent
Due Date equal to the Monthly Payment (exclusive of any Excess Interest) that
would have been due in respect of such Balloon Mortgage Loan on such Due Date if
it had been required to continue to accrue interest in accordance with its
terms, and to pay principal in accordance with the amortization schedule (if
any), in effect immediately prior to, and without regard to the occurrence of,
its most recent scheduled maturity date. With respect to any REO Loan, for any
Due Date therefor as of which the related REO Property 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, the Trustee or the Fiscal Agent for such Distribution Date pursuant to
Section 4.03, (iii) the aggregate of any Compensating Interest Payments made by
the Master Servicer for such Distribution Date pursuant to Section 3.20, (iv) in
the case of the Final Distribution Date, the aggregate of any Liquidation
Proceeds paid by the Master Servicer, the Majority Certificateholder of the
Controlling Class or the Depositor in connection with a purchase of all the
Mortgage Loans and any REO Properties pursuant to Section 9.01, and (v) with
respect to the
7
Distribution Date occurring in March of each calendar year, the Withheld Amounts
with respect to the Interest Reserve Loans deposited in the Interest Reserve
Account by the Trustee in January and/or February of such calendar year in
accordance with Section 3.04(e), net of (b) the aggregate portion of the amount
described in clause (a) hereof that represents one or more of the following: (i)
Monthly Payments paid by the Mortgagors that are due on a Due Date following the
end of the related Collection Period, (ii) any amounts payable or reimbursable
to any Person from the Certificate Account pursuant to clauses (ii) - (xvii),
inclusive, of Section 3.05(a), (iii) any amounts payable or reimbursable to any
Person from the Distribution Account pursuant to clauses (ii) - (vii),
inclusive, of Section 3.05(b), (iv) Prepayment Premiums and any 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(e).
Notwithstanding the investment of funds held in the Certificate Account or the
Distribution Account pursuant to Section 3.06, for purposes of calculating the
Available Distribution Amount, the amounts so invested shall be deemed to remain
on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan 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 as to which the Stated Maturity Date occurs in the same Collection
Period as the prior Due Date for such Balloon Mortgage Loan, and as to which the
related Balloon Payment is paid during such Collection Period after such prior
Due Date, the amount of interest (net of related Servicing Fees and, if
applicable, Excess Interest) accrued on such Balloon Mortgage Loan from such
prior Due Date to, but not including, the date the related Balloon Payment is
paid, to the extent such interest is actually paid by the related Mortgagor in
connection with the payment of the related Balloon Payment on or before such
Stated Maturity Date.
"Balloon Payment Interest Shortfall": With respect to any
Balloon Mortgage Loan as to which the Stated Maturity Date occurs after the
Determination Date in any calendar month, and as to which the related Balloon
Payment was made during the Collection Period in which such Stated Maturity Date
occurs, the amount of interest that would have accrued on such Balloon Mortgage
Loan at the related Net Mortgage Rate from such Stated Maturity Date to but not
including the date that (but for the occurrence of such Stated Maturity Date)
would otherwise have been the next succeeding scheduled Due Date, to the extent
not paid by the related Mortgagor.
"Bankruptcy Code": The federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
8
"Xxxxxxx REMIC": The single-asset REMIC established with
respect to the mortgage loan identified on the Mortgage Loan Schedule as loan
number 28310 which REMIC was created by a REMIC declaration made by GMAC
Commercial Mortgage Corporation on March 1, 2002.
"Xxxxxxx REMIC Regular Interest": The REMIC regular interest
in the Xxxxxxx REMIC, which regular interest was transferred and assigned by
GMAC Commercial Mortgage Corporation to the Depositor pursuant to the Mortgage
Loan Purchase Agreement between the Depositor and GMAC Commercial Mortgage
Corporation.
"Xxxxxxx REMIC Residual Interest": The REMIC residual interest
in the Xxxxxxx REMIC, which residual interest was transferred and assigned by
GMAC Commercial Mortgage Corporation to the Depositor pursuant to the Mortgage
Loan Purchase Agreement between the Depositor and GMAC Commercial Mortgage
Corporation.
"Bloomberg": As defined in Section 4.02(a).
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
"Borrower Recoveries": With respect to any Mortgage Loan,
amounts other than Monthly Payments, Balloon Payments or Late Collections
received from the related Mortgagor as reimbursement or recoveries of
expenditures made by any of the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent.
"Breach": As defined in Section 2.03(a).
"Broker Strip Amount": With respect to each Broker Strip Loan,
the portion of the Servicing Fee equal to, with respect to the Mortgage Loans
identified on the Broker Strip Schedule, the rate per annum identified on the
Broker Strip Schedule, of the Stated Principal Balance of the related Mortgage
Loan, calculated for the same number of days and on the same basis as the
Servicing Fee Rate. The Mortgage Rate set forth for each Broker Strip Loan on
the Mortgage Loan Schedule is net of such Broker Strip Amount.
"Broker Strip Schedule": Schedule VI hereto.
"Broker Strip Loans": The Mortgage Loans identified on the
Broker Strip Schedule.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, and the cities in which
the Primary Servicing Offices of the Master Servicer and the Special Servicer
and the city in which the Corporate Trust Office of the Trustee are located, are
authorized or obligated by law or executive order to remain closed.
"Cash Collateral Account": With respect to any Mortgage Loan
that has a Lock-Box Account, any account or accounts created pursuant to the
related Mortgage Loan, Cash Collateral Account Agreement or other loan document,
into which account or accounts the Lock-
9
Box Account monies are swept on a regular basis for the benefit of the Trustee
as successor to the Mortgage Loan Seller's interest in the Mortgage Loans. Any
Cash Collateral Account shall be beneficially owned for federal income tax
purposes by the Person who is entitled to receive all reinvestment income or
gain thereon in accordance with the terms and provisions of the related Mortgage
Loan and Section 3.06, which Person shall be taxed on all reinvestment income or
gain thereon. To the extent not otherwise required to be paid to the applicable
Mortgagor under the terms of the related Mortgage Loan, the Master Servicer
shall be permitted to make withdrawals therefrom solely for deposit into the
Certificate Account. To the extent not inconsistent with the terms of the
related Mortgage Loan, each such Cash Collateral Account shall be an Eligible
Account.
"Cash Collateral Account Agreement": With respect to any
Mortgage Loan, the cash collateral account agreement, if any, between the
originator of such Mortgage Loan and the related Mortgagor, pursuant to which
the related Cash Collateral Account, if any, may have been established.
"Central REMIC": The single-asset REMIC established with
respect to the mortgage loan identified on the Mortgage Loan Schedule as loan
number 30236 which REMIC was created by a REMIC declaration made by GMAC
Commercial Mortgage Corporation on May 1, 2002.
"Central REMIC Regular Interest": The REMIC regular interest
in the Central REMIC, which regular interest was transferred and assigned by
GMAC Commercial Mortgage Corporation to the Depositor pursuant to the Mortgage
Loan Purchase Agreement between the Depositor and GMAC Commercial Mortgage
Corporation.
"Central REMIC Residual Interest": The REMIC residual interest
in the Central REMIC, which residual interest was transferred and assigned by
GMAC Commercial Mortgage Corporation to the Depositor pursuant to the Mortgage
Loan Purchase Agreement between the Depositor and GMAC Commercial Mortgage
Corporation.
"CERCLA": The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Mortgage
Pass-Through Certificates, Series 2002-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, in trust for the
holders of certain other interests in mortgage loans serviced or sold by the
Master Servicer and for the Master Servicer, into which the amounts set forth in
Section 3.04(a) shall be deposited directly. Any such account or accounts shall
be an Eligible Account.
"Certificate Factor": With respect to any Class of REMIC III
Regular Certificates, as of any date of determination, a fraction, expressed as
a decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or the Class Notional
10
Amount, as the case may be, and the denominator of which is the related Initial
Class Principal Balance or the Initial Class Notional Amount, as the case may
be.
"Certificate Notional Amount": With respect to any Class X-1
or Class X-2 Certificate, as of any date of determination, the then notional
principal amount on which such Certificate accrues interest equal to the product
of (a) the Percentage Interest evidenced by such Certificate, multiplied by (b)
the then Class Notional Amount of the Class X-1 or Class X-2 Certificates, as
applicable.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to any Principal
Balance Certificate, as of any date of determination, the then outstanding
principal amount of such Certificate equal to the product of (a) the Percentage
Interest evidenced by such Certificate, multiplied by (b) the then Class
Principal Balance of the Class of Certificates to which such Certificate
belongs.
"Certificate Register" and "Certificate Registrar": The
register maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Master Servicer, the
Special Servicer, the Trustee, the Depositor or any Affiliate of any of them
shall be deemed not to be outstanding, and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver has been obtained, except as otherwise provided in Sections 7.04 and
11.01. The Trustee shall be entitled to request and rely upon a certificate of
the Master Servicer, the Special Servicer or the Depositor in determining
whether a Certificate is registered in the name of an Affiliate of such Person.
All references herein to "Holders" or "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name a
Certificate is registered in the Certificate Register as of the related Record
Date.
"Class": Collectively, all of the Certificates bearing the
same alphabetical and, if applicable, numerical class designation.
"Class A Certificate": Any one of the Class A-1, Class A-2 or
Class A-3 Certificates.
"Class A-1 Certificate": Any one of the Certificates with a
"Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
11
"Class A-2 Certificate": Any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a
"Class A-3" 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 B Certificate": Any one of the Certificates with a
"Class B" 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 C Certificate": Any one of the Certificates with a
"Class C" 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 D Certificate": Any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the form of Exhibit
A-8 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a
"Class E" 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 F Certificate": Any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-10 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-11 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a
"Class H" designation on the face thereof, substantially in the form of Exhibit
A-12 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-13 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a
"Class K" designation on the face thereof, substantially in the form of Exhibit
A-14 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a
"Class L" designation on the face thereof, substantially in the form of Exhibit
A-15 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
12
"Class M Certificate": Any one of the Certificates with a
"Class M" designation on the face thereof, substantially in the form of Exhibit
A-16 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a
"Class N" designation on the face thereof, substantially in the form of Exhibit
A-17 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class O Certificate": Any one of the Certificates with a
"Class O" designation on the face thereof, substantially in the form of Exhibit
A-18 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class P Certificate": Any one of the Certificates with a
"Class P" designation on the face thereof, substantially in the form of Exhibit
A-19 attached hereto, and evidencing a "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Class LA-1 Component": A non-certificated beneficial
ownership interest in REMIC III, designated as a "regular interest" therein and
entitled to distributions of interest, subject to the terms and conditions
hereof, in an amount based upon the Class LA-1 Component Rate and the
Uncertificated Principal Balance of REMIC II Regular Interest LA-1 outstanding
from time to time.
"Class LA-2-1 Component": A non-certificated beneficial
ownership interest in REMIC III, designated as a "regular interest" therein and
entitled to distributions of interest, subject to the terms and conditions
hereof, in an amount based upon the Class LA-2-1 Component Rate and the
Uncertificated Principal Balance of REMIC II Regular Interest LA-2-1 outstanding
from time to time.
"Class LA-2-2 Component": A non-certificated beneficial
ownership interest in REMIC III, designated as a "regular interest" therein and
entitled to distributions of interest, subject to the terms and conditions
hereof, in an amount based upon the Class LA-2-2 Component Rate and the
Uncertificated Principal Balance of REMIC II Regular Interest LA-2-2 outstanding
from time to time.
"Class LA-3-1 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-3-1 Component Rate and the
Uncertificated Principal Balance of REMIC II Regular Interest LA-3-1 outstanding
from time to time.
"Class LA-3-2 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-3-2 Component Rate and the
Uncertificated Principal Balance of REMIC II Regular Interest LA-3-2 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,
13
subject to the terms and conditions hereof, in an amount based upon the Class LB
Component Rate and the Uncertificated Principal Balance of REMIC II Regular
Interest LB outstanding from time to time.
"Class LC Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LC Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LC outstanding from time to time.
"Class LD Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LD Component Rate and the 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-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 LG-1 Component Rate and the
Uncertificated Principal Balance of REMIC II Regular Interest LG-1 outstanding
from time to time.
"Class LG-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 LG-2 Component Rate and the
Uncertificated Principal Balance of REMIC II Regular Interest LG-2 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,
14
subject to the terms and conditions hereof, in an amount based upon the Class LJ
Component Rate and the Uncertificated Principal Balance of REMIC II Regular
Interest LJ outstanding from time to time.
"Class LK Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LK Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LK outstanding from time to time.
"Class LL Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LL Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LL outstanding from time to time.
"Class LM Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LM Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LM outstanding from time to time.
"Class LN Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LN Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LN outstanding from time to time.
"Class LO Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LO Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LO outstanding from time to time.
"Class LP Component": A non-certificated beneficial ownership
interest in REMIC III, designated as a "regular interest" therein and entitled
to distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LP Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LP outstanding from time to time.
"Class LA-1 Component Rate": With respect to any Distribution
Date, the amount, if any, by which the Weighted Average Net Mortgage Rate for
such Distribution Date exceeds the Class A-1 Pass-Through Rate.
"Class LA-2-1 Component Rate": With respect to any
Distribution Date, the amount, if any, by which the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds the Class A-2 Pass-Through
Rate.
15
"Class LA-2-2 Component Rate": With respect to any
Distribution Date, the amount, if any, equal to the sum of the Class LA-2-2
Component Class X-1 Strip Rate for such Distribution Date and the Class LA-2-2
Component Class X-2 Strip Rate for such Distribution Date.
"Class LA-2-2 Component Class X-1 Strip Rate": With respect to
any Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-2-2 Component Class X-2 Strip Rate and the Class A-2 Pass-Through Rate for
such Distribution Date.
"Class LA-2-2 Component Class X-2 Strip Rate": With respect to
any Distribution Date, the amount, if any, by which (i) the lesser of (x) the
rate per annum corresponding to such Distribution Date as set forth in Schedule
V hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution
Date exceeds (ii) the Class A-2 Pass-Through Rate for such Distribution Date.
"Class LA-3-1 Component Rate": With respect to any
Distribution Date, the amount, if any, equal to the sum of the Class LA-3-1
Component Class X-1 Strip Rate for such Distribution Date and the Class LA-3-1
Component Class X-2 Strip Rate for such Distribution Date.
"Class LA-3-1 Component Class X-1 Strip Rate": With respect to
any Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-3-1 Component Class X-2 Strip Rate and the Class A-3 Pass-Through Rate for
such Distribution Date.
"Class LA-3-1 Component Class X-2 Strip Rate": With respect to
any Distribution Date, the amount, if any, by which (i) the lesser of (x) the
rate per annum corresponding to such Distribution Date as set forth in Schedule
V hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution
Date exceeds (ii) the Class A-3 Pass-Through Rate for such Distribution Date.
"Class LA-3-2 Component Rate": With respect to any
Distribution Date, the amount, if any, equal to the sum of the Class LA-3-2
Component Class X-1 Strip Rate for such Distribution Date and the Class LA-3-2
Component Class X-2 Strip Rate for such Distribution Date.
"Class LA-3-2 Component Class X-1 Strip Rate": With respect to
any Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class
LA-3-2 Component Class X-2 Strip Rate and the Class A-3 Pass-Through Rate for
such Distribution Date.
"Class LA-3-2 Component Class X-2 Strip Rate": With respect to
any Distribution Date, the amount, if any, by which (i) the lesser of (x) the
rate per annum corresponding to such Distribution Date as set forth in Schedule
V hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution
Date exceeds (ii) the Class A-3 Pass-Through Rate for such Distribution Date.
16
"Class LB Component Rate": With respect to any Distribution
Date, the amount, if any, equal to the sum of the Class LB Component Class X-1
Strip Rate for such Distribution Date and the Class LB Component Class X-2 Strip
Rate for such Distribution Date.
"Class LB Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LB
Component Class X-2 Strip Rate and the Class B Pass-Through Rate for such
Distribution Date.
"Class LB Component Class X-2 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the lesser of (x) the rate
per annum corresponding to such Distribution Date as set forth in Schedule V
hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution Date
exceeds (ii) the Class B Pass-Through Rate for such Distribution Date.
"Class LC Component Rate": With respect to any Distribution
Date, the amount, if any, equal to the sum of the Class LC Component Class X-1
Strip Rate for such Distribution Date and the Class LC Component Class X-2 Strip
Rate for such Distribution Date.
"Class LC Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LC
Component Class X-2 Strip Rate and the Class C Pass-Through Rate for such
Distribution Date.
"Class LC Component Class X-2 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the lesser of (x) the rate
per annum corresponding to such Distribution Date as set forth in Schedule V
hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution Date
exceeds (ii) the Class C Pass-Through Rate for such Distribution Date.
"Class LD Component Rate": With respect to any Distribution
Date, the amount, if any, equal to the sum of the Class LD Component Class X-1
Strip Rate for such Distribution Date and the Class LD Component Class X-2 Strip
Rate for such Distribution Date.
"Class LD Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LD
Component Class X-2 Strip Rate and the Class D Pass-Through Rate for such
Distribution Date.
"Class LD Component Class X-2 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the lesser of (x) the rate
per annum corresponding to such Distribution Date as set forth in Schedule V
hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution Date
exceeds (ii) the Class D Pass-Through Rate for such Distribution Date.
"Class LE Component Rate": With respect to any Distribution
Date, the amount, if any, equal to the sum of the Class LE Component Class X-1
Strip Rate for such Distribution Date and the Class LE Component Class X-2 Strip
Rate for such Distribution Date.
17
"Class LE Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LE
Component Class X-2 Strip Rate and the Class E Pass-Through Rate for such
Distribution Date.
"Class LE Component Class X-2 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the lesser of (x) the rate
per annum corresponding to such Distribution Date as set forth in Schedule V
hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution Date
exceeds (ii) the Class E Pass-Through Rate for such Distribution Date.
"Class LF Component Rate": With respect to any Distribution
Date, the amount, if any, equal to the sum of the Class LF Component Class X-1
Strip Rate for such Distribution Date and the Class LF Component Class X-2 Strip
Rate for such Distribution Date.
"Class LF Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LF
Component Class X-2 Strip Rate and the Class F Pass-Through Rate for such
Distribution Date.
"Class LF Component Class X-2 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the lesser of (x) the rate
per annum corresponding to such Distribution Date as set forth in Schedule V
hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution Date
exceeds (ii) the Class F Pass-Through Rate for such Distribution Date.
"Class LG-1 Component Rate": With respect to any Distribution
Date, the amount, if any, equal to the sum of the Class LG-1 Component Class X-1
Strip Rate for such Distribution Date and the Class LG-1 Component Class X-2
Strip Rate for such Distribution Date.
"Class LG-1 Component Class X-1 Strip Rate": With respect to
any Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LG-1
Component Class X-2 Strip Rate and the Class G Pass-Through Rate for such
Distribution Date.
"Class LG-1 Component Class X-2 Strip Rate": With respect to
any Distribution Date, the amount, if any, by which (i) the lesser of (x) the
rate per annum corresponding to such Distribution Date as set forth in Schedule
V hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution
Date exceeds (ii) the Class G Pass-Through Rate for such Distribution Date.
"Class LG-2 Component Rate": With respect to any Distribution
Date, the amount, if any, equal to the sum of the Class LG-2 Component Class X-1
Strip Rate for such Distribution Date and the Class LG-2 Component Class X-2
Strip Rate for such Distribution Date.
18
"Class LG-2 Component Class X-1 Strip Rate": With respect to
any Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LG-2
Component Class X-2 Strip Rate and the Class G Pass-Through Rate for such
Distribution Date.
"Class LG-2 Component Class X-2 Strip Rate": With respect to
any Distribution Date, the amount, if any, by which (i) the lesser of (x) the
rate per annum corresponding to such Distribution Date as set forth in Schedule
V hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution
Date exceeds (ii) the Class G Pass-Through Rate for such Distribution Date.
"Class LH Component Rate": With respect to any Distribution
Date, the amount, if any, equal to the sum of the Class LH Component Class X-1
Strip Rate for such Distribution Date and the Class LH Component Class X-2 Strip
Rate for such Distribution Date.
"Class LH Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LH
Component Class X-2 Strip Rate and the Class H Pass-Through Rate for such
Distribution Date.
"Class LH Component Class X-2 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the lesser of (x) the rate
per annum corresponding to such Distribution Date as set forth in Schedule V
hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution Date
exceeds (ii) the Class H Pass-Through Rate for such Distribution Date.
"Class LJ Component Rate": With respect to any Distribution
Date, the amount, if any, equal to the sum of the Class LJ Component Class X-1
Strip Rate for such Distribution Date and the Class LJ Component Class X-2 Strip
Rate for such Distribution Date.
"Class LJ Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such Distribution Date exceeds (ii) the sum of the Class LJ
Component Class X-2 Strip Rate and the Class J Pass-Through Rate for such
Distribution Date.
"Class LJ Component Class X-2 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the lesser of (x) the rate
per annum corresponding to such Distribution Date as set forth in Schedule V
hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution Date
exceeds (ii) the Class J Pass-Through Rate for such Distribution Date.
"Class LK Component Rate": With respect to any Distribution
Date, the amount, if any, equal to the sum of the Class LK Component Class X-1
Strip Rate for such Distribution Date and the Class LK Component Class X-2 Strip
Rate for such Distribution Date.
"Class LK Component Class X-1 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the Weighted Average Net
Mortgage Rate for such
19
Distribution Date exceeds (ii) the sum of the Class LK Component Class X-2 Strip
Rate and the Class K Pass-Through Rate for such Distribution Date.
"Class LK Component Class X-2 Strip Rate": With respect to any
Distribution Date, the amount, if any, by which (i) the lesser of (x) the rate
per annum corresponding to such Distribution Date as set forth in Schedule V
hereto or (y) the Weighted Average Net Mortgage Rate for such Distribution Date
exceeds (ii) the Class K Pass-Through Rate for such Distribution Date.
"Class LL Component Rate": With respect to any Distribution
Date, the amount, if any, by which the Weighted Average Net Mortgage Rate for
such Distribution Date exceeds the Class L Pass-Through Rate for such
Distribution Date.
"Class LM Component Rate": With respect to any Distribution
Date, the amount, if any, by which the Weighted Average Net Mortgage Rate for
such Distribution Date exceeds the Class M Pass-Through Rate for such
Distribution Date.
"Class LN Component Rate": With respect to any Distribution
Date, the amount, if any, by which the Weighted Average Net Mortgage Rate for
such Distribution Date exceeds the Class N Pass-Through Rate for such
Distribution Date.
"Class LO Component Rate": With respect to any Distribution
Date, the amount, if any, by which the Weighted Average Net Mortgage Rate for
such Distribution Date exceeds the Class O Pass-Through Rate for such
Distribution Date.
"Class LP Component Rate": With respect to any Distribution
Date, the amount, if any, by which the Weighted Average Net Mortgage Rate for
such Distribution Date exceeds the Class P Pass-Through Rate for such
Distribution Date.
"Class Notional Amount": The Class X-1 Notional Amount or the
Class X-2 Notional Amount, as applicable.
"Class Principal Balance": The aggregate principal amount of
any Class of Principal Balance Certificates outstanding as of any date of
determination. On each Distribution Date, the Class Principal Balance of each
Class of the Principal Balance Certificates shall be reduced by the amount of
any distributions of principal made thereon on such Distribution Date pursuant
to Section 4.01(c) and, if and to the extent appropriate, shall be further
reduced on such Distribution Date as provided in Section 4.04(c).
"Class R-I Certificate": Any one of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-20 attached hereto, and evidencing the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions.
"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.
20
"Class R-II Certificate": Any one of the Certificates with a
"Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-21 attached hereto, and evidencing the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
"Class R-II Distribution Amount": With respect to any
Distribution Date, any amounts available to be paid to the holders of the Class
R-II Certificates on such date after all REMIC II Regular Interests have been
paid in full.
"Class R-III Certificate": Any one of the Certificates with a
"Class R-III" designation on the face thereof, substantially in the form of
Exhibit A-22 attached hereto, and evidencing the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
"Class R-III Distribution Amount": With respect to any
Distribution Date, any amounts available to be paid to the holders of the Class
R-III Certificates on such date after all REMIC III Regular Certificates have
been paid in full.
"Class X Certificate": Any of the Class X-1 or the Class X-2
Certificates.
"Class X-1 Certificate": Any one of the Certificates with a
"Class X-1" designation on the face thereof, substantially in the form of
Exhibit A-1, evidencing "regular interests" in REMIC III for purposes of the
REMIC Provisions.
"Class X-2 Certificate": Any one of the Certificates with a
"Class X-2" designation on the face thereof, substantially in the form of
Exhibit A-2, evidencing "regular interests" in REMIC III for purposes of the
REMIC Provisions.
"Class X Component": Any of the twenty (20) components
constituting "regular interests" in REMIC III for purposes of the REMIC
Provisions. Such components are identified as Class XX-0, XX-0-0, XX-0-0,
XX-0-0, LA-3-2, LB, LC, LD, LE, LF, XX-0, XX-0, XX, XX, XX, XX, XX, XX, XX and
LP Components.
"Class X-1 Component": As to the Class X-1 Certificates, any
one of the Class X Components applicable to such Class set forth under the
definition of "REMIC II Regular Interests".
"Class X-2 Component": As to the Class X-2 Certificates, any
one of the Class X Components applicable to such Class set forth under the
definition of "REMIC II Regular Interests".
"Class X-1 Notional Amount": The aggregate notional principal
amount on which the Class X-1 Certificates accrue interest from time to time
which, as of any date of determination, is equal to the then aggregate
Uncertificated Principal Balances of REMIC Regular Interests LA-1, LA-2-1,
LA-2-2, LA-3-1, LA-3-2, LB, LC, LD, LE, LF, XX-0, XX-0, XX, XX, XX, XX, XX, XX,
XX and LP.
"Class X-2 Notional Amount": means,
21
(A) the aggregate notional principal amount on which the Class
X-2 Certificates accrue interest from time to time which, as of any date of
determination on or before the June 2005 Distribution Date, is equal to the then
aggregate Uncertificated Principal Balances of REMIC Regular Interests LA-2-2,
LA-3-1, LA3-2, LB, LC, LD, LE, LF, LG-1, LG-2, LH, LJ and LK;
(B) the aggregate notional principal amount on which the Class
X-2 Certificates accrue interest from time to time which, as of any date of
determination after the June 2005 Distribution Date and on or before the
December 2006 Distribution Date, is equal to the then aggregate Uncertificated
Principal Balances of REMIC Regular Interests XX-0-0, XX-0-0, XX, XX, XX, XX,
XX, XX-0, LG-2, LH and LJ;
(C) the aggregate notional principal amount on which the Class
X-2 Certificates accrue interest from time to time which, as of any date of
determination after the December 2006 Distribution Date and on or before the
December 2007 Distribution Date, is equal to the then aggregate Uncertificated
Principal Balances of REMIC Regular Interests XX-0-0, XX, XX, XX, XX, XX, XX-0,
LG-2 and LH;
(D) the aggregate notional principal amount on which the Class
X-2 Certificates accrue interest from time to time which, as of any date of
determination after the December 2007 Distribution Date and on or before the
June 2009 Distribution Date, is equal to the then aggregate Uncertificated
Principal Balances of REMIC Regular Interests LA-3-2, LB, LC, LD, LE, LF and
LG-2; and
(E) with respect to any Distribution Date occurring after the
Distribution Date in June 2009, zero.
"Class X-1 Pass-Through Rate": With respect to the Class X-1
Certificates,
(i) for the initial Distribution Date 0.4054% per annum;
(ii) (A) for any Distribution Date thereafter, through and
including the June 2005 Distribution Date, the per annum rate, expressed as a
percentage, obtained by dividing (i) the sum of (x) the products of (I) the
Uncertificated Principal Balance of each REMIC Regular II Interest LA-1, LA-2-1,
LL, LM, LN, LO and LP immediately prior to such Distribution Date and (II) the
related Component Rate for such Distribution Date and (y) the products of (A)
the Uncertificated Principal Balance of each REMIC Regular II Interest LA-2-2,
LA-3-1, LA-3-2, LB, LC, LD, LE, LF, LG-1, LG-2, LH, LJ and LK immediately prior
to such Distribution Date and (B) the related Component Class X-1 Strip Rate by
(ii) the Class X-1 Notional Amount;
(B) for any Distribution Date after the June 2005 Distribution Date, through and
including the December 2006 Distribution Date, the per annum rate, expressed as
a percentage, obtained by dividing (i) the sum of (x) the products of (I) the
Uncertificated Principal Balance of each REMIC Regular II Interest LA-1, LA-2-1,
LA-2-2, LK, LL, LM, LN, LO and LP immediately prior to such Distribution Date
and (II) the related Component Rate for such Distribution Date and (y) the
products of (A) the Uncertificated Principal Balance of each REMIC Regular II
Interest XX-0-0, XX-0-0, XX, XX, XX, XX, XX, XX-0, LG-2, LH and LJ immediately
prior to
22
such Distribution Date and (B) the related Component Class X-1 Strip Rate by
(ii) the Class X-1 Notional Amount;
(C) for any Distribution Date after the December 2006 Distribution Date, through
and including the December 2007 Distribution Date, the per annum rate, expressed
as a percentage, obtained by dividing (i) the sum of (x) the products of (I) the
Uncertificated Principal Balance of each REMIC Regular II Interest LA-1, LA-2-1,
LA-2-2, LA-3-1, LJ, LK, LL, LM, LN, LO and LP immediately prior to such
Distribution Date and (II) the related Component Rate for such Distribution Date
and (y) the products of (A) the Uncertificated Principal Balance of each REMIC
Regular II Interest XX-0-0, XX, XX, XX, XX, XX, XX-0, LG-2 and LH immediately
prior to such Distribution Date and (B) the related Component Class X-1 Strip
Rate by (ii) the Class X-1 Notional Amount; and
(D) for any Distribution Date after the December 2007 Distribution Date, through
and including the June 2009 Distribution Date, the per annum rate, expressed as
a percentage, obtained by dividing (i) the sum of (x) the products of (I) the
Uncertificated Principal Balance of each REMIC Regular II Interest XX-0, XX-0-0,
XX-0-0, XX-0-0, XX-0, LH, LJ, LK, LL, LM, LN, LO and LP immediately prior to
such Distribution Date and (II) the related Component Rate for such Distribution
Date and (y) the products of (A) the Uncertificated Principal Balance of each
REMIC Regular II Interest LA-3-2, LB, LC, LD, LE, LF and LG-2 immediately prior
to such Distribution Date and (B) the related Component Class X-1 Strip Rate by
(ii) the Class X-1 Notional Amount; and
(iii) for any Distribution Date subsequent to the June
2009 Distribution Date, the per annum rate, expressed as a percentage, obtained
by dividing (i) the sum of the products of (x) the Uncertificated Principal
Balance of each Class of REMIC Regular II Interest immediately prior to such
Distribution Date and (y) the related Component Rate for such Distribution Date
by (ii) the Class X-1 Notional Amount;
"Class X-2 Pass-Through Rate": With respect to the Class X-2
Certificates,
(i) for the initial Distribution Date, 1.4578% per annum;
(ii) (A) for any Distribution Date thereafter, through and
including the June 2005 Distribution Date, the per annum rate, expressed as a
percentage, obtained by dividing (i) the sum of the products of (x) the
Uncertificated Principal Balance of each REMIC Regular II Interest LA-2-2,
LA-3-1, LA-3-2, LB, LC, LD, LE, LF, LG-1, LG-2, LH, LJ and LK immediately prior
to such Distribution Date and (y) the related Component Class X-2 Strip Rate for
such Distribution Date by (ii) the Class X-2 Notional Amount;
(B) for any Distribution Date after the June 2005 Distribution Date, through and
including the December 2006 Distribution Date, the per annum rate, expressed as
a percentage, obtained by dividing (i) the sum of the products of (x) the
Uncertificated Principal Balance of each REMIC Regular II Interest XX-0-0,
XX-0-0, XX, XX, XX, XX, XX, XX-0, LG-2, LH and LJ immediately prior to such
Distribution Date and (y) the related Component Class X-2 Strip Rate for such
Distribution Date by (ii) the Class X-2 Notional Amount;
23
(C) for any Distribution Date after the December 2006 Distribution Date, through
and including the December 2007 Distribution Date, the per annum rate, expressed
as a percentage, obtained by dividing (i) the sum of the products of (x) the
Uncertificated Principal Balance of each REMIC Regular II Interest XX-0-0, XX,
XX, XX, XX, XX, XX-0, LG-2 and LH immediately prior to such Distribution Date
and (y) the related Component Class X-2 Strip Rate for such Distribution Date by
(ii) the Class X-2 Notional Amount; and
(D) for any Distribution Date after the December 2007 Distribution Date, through
and including the June 2009 Distribution Date, the per annum rate, expressed as
a percentage, obtained by dividing (i) the sum of the products of (x) the
Uncertificated Principal Balance of each REMIC Regular II Interest LA-3-2, LB,
LC, LD, LE, LF, LG-2 immediately prior to such Distribution Date and (y) the
related Component Class X-2 Strip Rate for such Distribution Date by (ii) the
Class X-2 Notional Amount; and
(iii) for any Distribution Date subsequent to the June
2009 Distribution Date, 0% per annum.
"Closing Date": June 27, 2002.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, certificateholders, issuers,
placement agents and underwriters generally involved in the commercial mortgage
loan securitization industry, which is the principal such association or
organization in the commercial mortgage loan securitization industry and whose
principal purpose is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Majority Certificateholder of the Controlling Class.
"CMSA Bond Level File": The monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Bond Level File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Collateral Summary File": The report substantially in
the form of, and containing the information called for in, the downloadable form
of the "CMSA Collateral Summary File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally.
24
"CMSA Comparative Financial Status Report": A report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Comparative Financial Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Delinquent Loan Status Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Delinquent Loan Status Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Financial File": A report substantially in the form of,
and containing the information called for in, the downloadable form of the "CMSA
Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Liquidation Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Historical Liquidation Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Historical Loan Modification Report": A report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Loan Modification Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Periodic Update File": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Loan Periodic Update File" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Setup File": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "NOI Adjustment Worksheet" available as of the Closing Date on the CMSA
Website, or such other form for the
25
presentation of such information and containing such additional information as
may from time to time be recommended by the CMSA for commercial mortgage
securities transactions generally.
"CMSA Operating Statement Analysis Report": A report
substantially in the form of, and contain the information called for in, the
downloadable form of the "Operating Statement Analysis Report" available as of
the Closing Date on the CMSA Website or in such other form for the presentation
of such information and containing such additional information as may from time
to time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Property File": The monthly report substantially in the
form of, and containing the information called for, in the downloadable form of
the "CMSA Property File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA REO Status Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"REO Status Report" available as of the Closing Date on the CMSA Website, or in
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watch List": For any Determination Date, a
report substantially in the form of, and containing the information called for
in, the downloadable form of the "Servicer Watch List" available as of the
Closing Date on the CMSA Website, or in such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Website": The CMSA's Website located at "xxx.xxxx.xxx"
or such other primary website as the CMSA may establish for dissemination of its
report forms.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date and
any Mortgage Loan, 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.
"Collection Report": The monthly report to be prepared by the
Master Servicer and delivered to the Trustee and the Depositor pursuant to
Section 4.02(b).
"Commission": The Securities and Exchange Commission.
"Compensating Interest Payments": Any payment required to be
made by the Master Servicer pursuant to Section 3.20(f) to cover Prepayment
Interest Shortfalls or Section 3.20(e) to cover Balloon Payment Interest
Shortfalls.
26
"Component Class X-1 Strip Rate": As to each of the Class
XX-0-0, XX-0-0, XX-0-0, XX, XX, XX, XX, XX, XX-0, LG-2, LH, LJ and LK
Components, the Class LA-2-2 Component Class X-1 Strip Rate, the Class LA-3-1
Component Class X-1 Strip Rate, the Class LA-3-2 Component Class X-1 Strip Rate,
the Class LB Component Class X-1 Strip Rate, the Class LC Component Class X-1
Strip Rate, the Class LD Component Class X-1 Strip Rate, the Class LE Component
Class X-1 Strip Rate, the Class LF Component Class X-1 Strip Rate , the Class
LG-1 Component Class X-1 Strip Rate, the Class LG-2 Component Class X-1 Strip
Rate, the Class LH Component Class X-1 Strip Rate, the Class LJ Component Class
X-1 Strip Rate or the Class LK Component Class X-1 Strip Rate, as applicable.
"Component Class X-2 Strip Rate": As to each of the Class
XX-0-0, XX-0-0, XX-0-0, XX, XX, XX, XX, XX, XX-0, LG-2, LH, LJ and LK
Components, the Class LA-2-2 Component Class X-2 Strip Rate, the Class LA-3-1
Component Class X-2 Strip Rate, the Class LA-3-2 Component Class X-2 Strip Rate,
the Class LB Component Class X-2 Strip Rate, the Class LC Component Class X-2
Strip Rate, the Class LD Component Class X-2 Strip Rate, the Class LE Component
Class X-2 Strip Rate, the Class LF Component Class X-2 Strip Rate, the Class
LG-1 Component Class X-2 Strip Rate, the Class LG-2 Component Class X-2 Strip
Rate, the Class LH Component Class X-2 Strip Rate, the Class LJ Component Class
X-2 Strip Rate or the Class LK Component Class X-2 Strip Rate, as applicable.
"Component Rate": As to each of the Class X Components, the
rate reflected in the definition for such component herein.
"Controlling Class": As of any date of determination, the
outstanding Class of Principal Balance Certificates with the lowest Payment
Priority (the Class A Certificates being treated as a single Class for this
purpose) that has a then outstanding Class Principal Balance at least equal to
25% of the Initial Class Principal Balance thereof (or, if no Class of Principal
Balance Certificates outstanding has a Class Principal Balance at least equal to
25% of the Initial Class Principal Balance thereof, then the "Controlling Class"
shall be the outstanding Class of Principal Balance Certificates with the lowest
Payment Priority). Initially, the Controlling Class will consist of the Class P
Certificates.
"Corporate Trust Office": The principal corporate trust office
of the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed Securities Trust Services Group
- GMAC Commercial Mortgage Securities, Inc. Series 2002-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.
27
"Credit Lease": With respect to a Credit Lease Loan, if any,
the lease agreement between the Mortgagor as lessor and the Tenant as lessee of
the related Mortgage Property.
"Credit Lease Loan": Any Mortgage Loan that is identified as a
"Credit Lease Loan" on the Mortgage Loan Schedule.
"Cross-Collateralized Mortgage Loans": Any two or more
Mortgage Loans listed on the Mortgage Loan Schedule that are
cross-collateralized with each other.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the aggregate of the following (without
duplication):
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as the
case may be, in respect of the Mortgage Loans and any related REO Loans for
their respective Due Dates occurring during the same calendar month as such
Distribution Date;
(b) all Principal Prepayments received on the Mortgage Loans
during the related Collection Period;
(c) with respect to any Balloon Mortgage Loan as to which the
related Stated Maturity Date occurred or any ARD Loan as to which the related
Anticipated Repayment Date occurred, during or prior to the related Collection
Period, any payment of principal (exclusive of any Principal Prepayment and any
amount described in subclause (d) below) that was made by or on behalf of the
related Mortgagor during the related Collection Period, net of any portion of
such payment that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or the principal portion of any
Assumed Monthly Payment deemed due, in respect of such Mortgage Loan on a Due
Date during or prior to the same calendar month as such Distribution Date and
not previously recovered;
(d) that portion of all Liquidation Proceeds (exclusive of any
Excess Liquidation Proceeds) and Insurance Proceeds received on or in respect of
the Mortgage Loans during the related Collection Period that were identified and
applied by the Master Servicer as recoveries of principal thereof, in each case
net of any portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of the
principal portion of any Assumed Monthly Payment deemed due, in respect of any
such Mortgage Loan on a Due Date during or prior to the same calendar month as
such Distribution Date and not previously recovered; and
(e) that portion of all Liquidation Proceeds (exclusive of any
Excess Liquidation Proceeds), Insurance Proceeds and REO Revenues received on or
in respect of any REO Properties during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal of the
related REO Loans, in each case net of any 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.
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"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 June 2002.
"Cut-off Date Principal Balance": With respect to any Mortgage
Loan, the outstanding principal balance of such Mortgage Loan as of the Cut-off
Date, after application of all payments of principal due on or before such date,
whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage
Loan (or group of Cross-Collateralized Mortgage Loans) for any specified period,
the debt service coverage ratio calculated in accordance with the applicable
Servicer Report using the methodologies set forth in Exhibit F.
"Default Interest": With respect to any Mortgage Loan (or
related REO Loan), 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.
"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.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": Noncallable government obligations of
(or non-callable obligations, fully guaranteed as to timely payment by) the
United States of America, as are permitted under the terms of a Mortgage Note or
related Mortgage Loan documents, but only if such obligations or assets
constitute "government securities" under the defeasance rule of the REMIC
Provisions.
"Defeasance Loan": Any Mortgage Loan that is designated as
such on the Mortgage Loan Schedule.
"Defeasance Option": The right of a Mortgagor, pursuant to the
terms of the related Mortgage Note or related Mortgage Loan documents, to obtain
a release of any portion of the related Mortgaged Property from the lien of the
related Mortgage upon the pledge to the Trustee of Defeasance Collateral.
"Definitive Certificate": As defined in Section 5.03(a).
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"Deleted Mortgage Loan": A Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"Delinquency Advance": As to any Mortgage Loan or related REO
Loan, any advance made by the Master Servicer, the Trustee or the Fiscal Agent
pursuant to Section 4.03.
"Delinquency Advance Date": The Business Day preceding each
Distribution Date.
"Depositor": GMAC Commercial Mortgage Securities, Inc. or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Designated Sub-Servicer": Any Sub-Servicer set forth on the
Additional Servicing Fee Schedule and any successor thereto under the related
Designated Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement": With respect to any
Additional Servicing Fee Mortgage Loan, the agreement among the Master Servicer,
the applicable Designated Sub-Servicer, Archon and in the case of certain
sub-servicing agreements, GSMC, pursuant to which the Designated Sub-Servicer
agrees to service the Additional Servicing Fee Mortgage Loans.
"Determination Date": With respect to any Distribution Date,
the 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, 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
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leases, deals with taxes and insurance, or makes decisions as to repairs (of the
type that would be deductible under Code Section 162) or capital expenditures
with respect to such REO Property.
"Discount Rate": With respect to each Mortgage Loan as to
which there has been a prepayment during a Collection Period and for which a
Prepayment Premium is collected, the yield (compounded monthly) for "This Week"
as reported by the Federal Reserve Board in Federal Reserve Statistical Release
H.15(519) for the constant maturity treasury having a maturity coterminous with
the Anticipated Repayment Date, in the case of an ARD Loan, or the Maturity
Date, in the case of each other Mortgage Loan, of such Mortgage Loan as of the
related Determination Date. If there is no Discount Rate for instruments having
a maturity coterminous with the Maturity Date or Anticipated Repayment Date, as
applicable, of the applicable Mortgage Loan, then the Discount Rate will be
equal to the linear interpolation of the yields of the constant maturity
treasuries with maturities next longer and shorter than such Maturity Date or
Anticipated Repayment Date, as the case may be.
"Discount Rate Fraction": With respect to the distribution of
any Prepayment Premium received with respect to any Mortgage Loan to the Holders
of any Class of Principal Balance Certificates on any Distribution Date, a
fraction (not greater than 1.0 or less than zero), (a) the numerator of which is
equal to the excess, if any, of (x) the Pass-Through Rate for such Class of
Certificates over (y) the relevant Discount Rate and (b) the denominator of
which is equal to the excess, if any, of (x) the Mortgage Rate of the related
Mortgage Loan over (y) the relevant Discount Rate.
"Distributable Certificate Interest": With respect to any
Class of REMIC III Regular Certificates, for any Distribution Date, the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, reduced (to not less than zero) by that portion, if any, of
the Net Aggregate Prepayment Interest Shortfall, if any, for such Distribution
Date allocated to such Class of Certificates as set forth below. The Net
Aggregate Prepayment Interest Shortfall, if any, for each Distribution Date
shall be allocated on such Distribution Date among the REMIC III Regular
Certificates, pro rata, in accordance with the respective amounts of Accrued
Certificate Interest for such Classes of Certificates for such Distribution
Date.
"Distribution Account": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b) in trust for
the Certificateholders, which shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for the registered holders of GMAC Commercial
Mortgage Securities, Inc., Mortgage Pass Through Certificates, Series 2002-C2."
Any such account or accounts shall be an Eligible Account.
"Distribution Date": The 15th day of any month, or if such
15th day is not a Business Day, the Business Day immediately following,
commencing in July 2002.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.02(d).
"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
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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; and (iii) any REO Loan, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on the related Mortgage Loan had
been scheduled to be first due.
"Eligible Account": An account or subaccount that is any of
the following: (i) maintained with a depository institution or trust company
whose (A) commercial paper, short-term unsecured debt obligations or other
short-term deposits are rated at least (x) A-1 by Standard & Poor's and (y) P-1
by Moody's, if the deposits are to be held in the account for 30 days or less,
or (B) long-term unsecured debt obligations are rated at least (x) AA- by
Standard & Poor's and (y) Aa3 by Moody's, if the deposits are to be held in the
account more than 30 days, or (ii) a segregated trust account or accounts
maintained in the trust department of the Trustee or other financial institution
subject to regulations regarding fiduciary funds on deposit similar to 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 Master Servicer (at the direction of the
Special Servicer) in order to avoid any material penalty, any material harm to a
Mortgaged Property or any other material adverse consequence to the Trust Fund.
"Environmental Assessment": A "Phase I assessment" conducted
in accordance with ASTM Standard E 1527-93 or any successor thereto published by
ASTM.
"Environmental Policy": Collectively, the Secured Creditor
Impaired Property Policies (Portfolio) issued by American International
Specialty Lines Insurance Company or Commerce & Industry Insurance Company, as
the case may be, with respect to the Mortgaged Properties listed on Schedule IV.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Payment": Any payment received by the Master Servicer
or the Special Servicer for the account of any Mortgagor for application toward
the payment of real estate taxes, assessments, insurance premiums, ground rents
(if applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Excess Interest": With respect to each of the ARD Loans, if
any, interest accrued on such ARD Loan and allocable to the Excess Rate and,
except to the extent limited by applicable law, interest accrued at the Revised
Rate on any such accrued interest that is unpaid. The Excess Interest is an
asset of the Trust Fund which is a Grantor Trust Asset not held in REMIC I,
REMIC II or REMIC III.
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"Excess Liquidation Proceeds": With respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of that Mortgage Loan or related
REO Property net of any related Liquidation Expenses, over (ii) the amount that
would have been received if a Principal Payment in full had been made with
respect to such Mortgage Loan on the Due Date immediately following the date on
which such proceeds were received.
"Excess Liquidation Proceeds Reserve Account": The segregated
account or subaccount created and maintained by the Trustee pursuant to Section
3.04(d) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association, as Trustee, in trust for the registered holders of
GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 2002-C2 -- Excess Liquidation Proceeds Reserve Account." Any such account
shall be an Eligible Account.
"Excess Rate": With respect to each ARD Loan, if any, after
the related Anticipated Repayment Date, the excess of (i) the applicable Revised
Rate over (ii) the applicable initial Mortgage Rate, each as set forth in the
Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"FDIC": Federal Deposit Insurance Corporation or any
successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date": The final Distribution Date on
which any distributions are to be made on the Certificates as contemplated by
Section 9.01.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO Property (other than
a Mortgage Loan or REO Property, as the case may be, that was purchased by a
Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement or by GMACCM pursuant to Section 4 of the related Supplemental
Agreement, as applicable, by the Majority Certificateholder of the Controlling
Class or the applicable Mortgage Loan Seller pursuant to Section 3.18, or by the
Master Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor pursuant to Section 9.01) that, in the reasonable and good faith
judgment of the Special Servicer, there has been a recovery of all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries that, in the
Special Servicer's judgment, exercised without regard to any obligation of the
Master Servicer or the Special Servicer to make payments from its own funds
pursuant to Section 3.07(b), will ultimately be recoverable.
"Fiscal Agent": ABN AMRO Bank N.V., a banking organization
organized under the laws of the Netherlands, its successor in interest, or any
successor fiscal agent appointed as provided herein.
"Fiscal Agent Termination Event": As defined in Section 8.15.
"Fixed Rate Mortgage Loan": A Mortgage Loan as to which the
related Mortgage Note provides, as of the Closing Date, for a Mortgage Rate that
remains fixed through
33
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.
"Gateway REMIC Regular Interest": The single-asset REMIC
established with respect to the mortgage loan identified on the Mortgage Loan
Schedule as loan number 31138 which REMIC was created by a REMIC declaration
made by GMAC Commercial Mortgage Corporation on May 1, 2002.
"Gateway REMIC": The REMIC regular interest in the Gateway
REMIC, which regular interest was transferred and assigned by GMAC Commercial
Mortgage Corporation to the Depositor pursuant to the Mortgage Loan Purchase
Agreement between the Depositor and GMAC Commercial Mortgage Corporation.
"Gateway REMIC Residual Interest": The REMIC residual interest
in the Gateway REMIC, which residual interest was transferred and assigned by
GMAC Commercial Mortgage Corporation to the Depositor pursuant to the Mortgage
Loan Purchase Agreement between the Depositor and GMAC Commercial Mortgage
Corporation.
"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 any Adjustable Rate Mortgage
Loan (and any successor REO Loan), if any, the fixed number of percentage points
set forth in the Mortgage Loan Schedule that is added to the applicable value of
the related Index on each Interest Rate Adjustment Date in accordance with the
terms of the related Mortgage Note to determine, subject to any applicable
periodic and lifetime limitations on adjustments thereto, the related Mortgage
Rate.
"Ground Lease": The ground lease pursuant to which any
Mortgagor holds a leasehold interest in the related Mortgaged Property.
"GSMC": Xxxxxxx Xxxxx Mortgage Company and its successors and
assigns.
"Guarantor": The guarantor under any Guaranty with respect to
any Credit Lease.
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"Guaranty": With respect to any Credit Lease Loan, a guaranty
agreement executed by an affiliate of the related Tenant that guarantees the
Tenant's obligations under the related Credit Lease.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including, without
limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"), radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory", "usable work
in process" or similar classification which would, if classified as unusable, be
included in the foregoing definition.
"Independent": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, each Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the Fiscal Agent or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Master Servicer, any Mortgage Loan Seller, the
Special Servicer, the Trustee, the Fiscal Agent or any Affiliate thereof as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, however, that a Person shall not fail to
be Independent of the Depositor, the Master Servicer, the Special Servicer or
any Affiliate thereof merely because such Person is the beneficial owner of 1%
or less of any class of securities issued by the Depositor, the Master Servicer
or any Affiliate thereof, as the case may be.
"Independent Contractor": Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by any Person that owns, directly or indirectly, 35 percent or more of any Class
of Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust Fund, delivered to the Trustee), so long as REMIC I does not receive
or derive any income from such Person and provided that the relationship between
such Person and REMIC I is at arm's length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust Fund, to the effect that the taking of any action in respect of any
REO Property by such Person, subject to any conditions therein specified, that
is otherwise herein contemplated to be taken by an Independent Contractor will
not cause such REO Property to cease to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code), or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property.
"Index": With respect to any Adjustable Rate Mortgage Loan
(and any successor REO Loan), for each Interest Rate Adjustment Date, the base
index used to determine the new Mortgage Rate in effect thereon as specified in
the related Mortgage Note. If the Index currently in effect for any Adjustable
Rate Mortgage Loan (or successor REO Loan) ceases to be
35
available, the Master Servicer shall, subject to Section 3.20(a) and the terms
of the related Mortgage Note, select a comparable alternative index.
"Initial Class Principal Balance": With respect to any Class
of Principal Balance Certificates, the initial Class Principal Balance thereof
as of the Closing Date, in each case as set forth in the Preliminary Statement.
"Initial Class Notional Amount": The Initial Class X-1
Notional Amount or the Initial Class X-2 Notional Amount, as applicable.
"Initial Class X-1 Notional Amount": With respect to the Class
X-1 Certificates, the initial Class Notional Amount thereof as of the Closing
Date, equal to $737,674,251.
"Initial Class X-2 Notional Amount": With respect to the Class
X-2 Certificates, the initial Class Notional Amount thereof as of the Closing
Date, equal to $608,899,000.
"Initial Resolution Period": As defined in Section 2.03(a)
"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) and applicable law.
"Interest Accrual Period": With respect to any Distribution
Date, the calendar month immediately preceding the month in which such
Distribution Date occurs.
"Interest Rate Adjustment Date": With respect to any
Adjustable Rate Mortgage Loan (and any successor REO Loan), if any, any date on
which the related Mortgage Rate is subject to adjustment pursuant to the related
Mortgage Note. The first Interest Rate Adjustment Date subsequent to the Cut-off
Date for any Adjustable Rate Mortgage Loan is specified in the Mortgage Loan
Schedule, and successive Interest Rate Adjustment Dates for such Mortgage Loan
(and any successor REO Loan) shall thereafter periodically occur with the
frequency specified in the Mortgage Loan Schedule.
"Interest Reserve Account": The segregated account or
subaccount created and maintained by the Trustee pursuant to Section 3.04(e) in
trust for the Certificateholders, which shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for the registered holders of GMAC Commercial
Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series 2002-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.
36
"Interested Person": The Depositor, the Master Servicer, the
Special Servicer, any Holder of a Certificate or any Affiliate of any such
Person.
"Investment Account": Each of the Certificate Account, the
Distribution Account, any Lock-Box Account, any Cash Collateral Account, the
Interest Reserve Account, the Special Reserve Account or any REO Account.
"Investor Certification": A certification in the form of
Exhibit H-1 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 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 and not previously recovered. The term
"Late Collections" shall specifically exclude Penalty Charges.
"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 the related Supplemental Agreement; (iv) such Mortgage Loan is
purchased by the Majority Certificateholder of the Controlling Class or the
applicable Mortgage Loan Seller pursuant to Section 3.18; or (vi) such Mortgage
Loan is purchased by the Master Servicer, the Majority Certificateholder of the
Controlling Class or the Depositor pursuant to Section 9.01. With respect to any
REO Property (and the related REO Loan), any of the following events: (i) a
Final Recovery Determination is made with respect to such REO Property; or (ii)
such REO Property is purchased by the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor pursuant to Section
9.01.
"Liquidation Expenses": All customary, reasonable and
necessary "out of pocket" costs and expenses incurred by the Special Servicer in
connection with the liquidation of any Specially Serviced Mortgage Loan or REO
Property pursuant to Section 3.09, 3.18 or 3.19 (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
37
the Majority Certificateholder of the Controlling Class or the applicable
Mortgage Loan Seller pursuant to Section 3.18 or by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor pursuant to
Section 9.01), the fee designated as such and payable to the Special Servicer
pursuant to Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable,
1.00%.
"Liquidation Proceeds": Cash amounts (other than Insurance
Proceeds and REO Revenues) received or paid by the Master Servicer or the
Special Servicer in connection with: (i) the taking of all or a part of a
Mortgaged Property by exercise of the power of eminent domain or condemnation;
(ii) the liquidation of a Mortgaged Property or other collateral constituting
security for a Defaulted Mortgage Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iv) the
purchase of a Mortgage Loan by the Majority Certificateholder of the Controlling
Class or the applicable Mortgage Loan Seller pursuant to Section 3.18; (v) the
repurchase of a Mortgage Loan by a Mortgage Loan Seller pursuant to Section 6 of
the related Mortgage Loan Purchase Agreement or by GMACCM pursuant to Section 4
of the related Supplemental Agreement; (vi) the payment of any Substitution
Shortfall Amount by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement or by GMACCM pursuant to Section 4 of the
related Supplemental Agreement; or (vii) the purchase of a Mortgage Loan or REO
Property by the Master Servicer, the Majority Certificateholder of the
Controlling Class or the Depositor pursuant to Section 9.01.
"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
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
38
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, 0.02% per annum.
"Material Breach": A Breach that materially and adversely
affects the value of a Mortgage Loan, the related Mortgaged Property or the
interests of the Trust Fund therein or of any Certificateholder.
"Material Document Defect": A Document Defect that materially
and adversely affects the value of a Mortgage Loan, the related Mortgaged
Property or the interests of the Trust Fund therein or of any Certificateholder;
provided, however, that the absence of or a material and adverse irregularity on
the face of any of the following documents shall be presumed to be Material
Document Defects: the original Mortgage Note (or a lost note affidavit and
indemnity), an original or executed copy of the Mortgage, an original or copy of
the required lender's title insurance policy (or in lieu thereof a marked-up
title commitment marked as binding and countersigned by the title company or its
authorized agent), the original or copy of any related letters of credit or a
copy of any related Ground Lease from the Mortgage File.
"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
39
date of determination and any extension permitted at the Mortgagor's option
under the terms of the related Mortgage Note (as in effect on the Closing Date)
and this Agreement, but without giving effect to (i) any acceleration of the
principal of such Mortgage Loan 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 3.21 or (iv) in the case of any 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 3.21 in a manner that:
(A) affects the amount or timing of any payment of
principal or interest due thereon (other than, or in addition
to, bringing current Monthly Payments with respect to such
Mortgage Loan);
(B) except as expressly contemplated by the related
Mortgage Loan documents, results in a release of the lien of
the Mortgage on any material portion of the related Mortgaged
Property without a corresponding Principal Prepayment in an
amount not less than the fair market value (as is), as
determined by an Appraisal delivered to the Special Servicer
(at the expense of the related Mortgagor and upon which the
Special Servicer may conclusively rely), of the property to be
released; or
(C) in the good faith and reasonable judgment of the
Special Servicer, otherwise materially impairs the security
for such Mortgage Loan or reduces the likelihood of timely
payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan, 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.
"Moody's": Xxxxx'x Investors Service, Inc., or its successor
in interest. If neither such rating agency nor any successor remains in
existence, "Moody's" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor. Notice of such designation shall be given to the Trustee, the
Master Servicer and the Special Servicer and specific ratings of Xxxxx'x
Investors Service, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, 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.
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"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 LaSalle Bank National Association, as trustee for the registered holders of
GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 2002-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) the original or a copy of the assignment of the Mortgage,
in recordable form, executed by the most recent assignee of record thereof prior
to the Trustee, or if none by the originator, either in blank or in favor of the
Trustee (in such capacity);
(4) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(5) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee, or,
if none, by the originator, either in blank or in favor of the Trustee (in such
capacity), which assignment may be included as part of the corresponding
assignment of Mortgage, referred to in clause (3) above;
(6) an original or a copy of any related Security Agreement
(if such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any;
(7) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage) executed by the most
recent assignee of record thereof prior to the Trustee or, if none, by the
originator, either in blank or in favor of the Trustee (in such capacity), which
assignment may be included as part of the corresponding assignment of Mortgage
referred to in clause (3) above;
(8) originals or copies of all assumption, modification,
written assurance and substitution agreements, with evidence of recording
thereon, where appropriate, in those instances where the terms or provisions of
the Mortgage, Mortgage Note or any related security document have been modified
or the Mortgage Loan has been assumed;
41
(9) the original or a copy of the lender's title insurance
policy, together with all endorsements or riders (or copies thereof) that were
issued with or subsequent to the issuance of such policy, insuring the priority
of the Mortgage as a first lien on the Mortgaged Property;
(10) the original or a copy of any guaranty of the obligations
of the Mortgagor under the Mortgage Loan which was in the possession of the
Mortgage Loan Seller at the time the Mortgage Files were delivered to the
Trustee together with (A) if applicable, the original or copies of any
intervening assignments of such guaranty showing a complete chain of assignment
from the originator of the Mortgage Loan to the most recent assignee thereof
prior to the Trustee, if any, and (B) an original assignment of such guaranty
executed by the most recent assignee thereof prior to the Trustee or, if none,
by the originator;
(11) (A) file or certified copies of any UCC financing
statements and continuation statements which were filed in order to perfect (and
maintain the perfection of) any security interest held by the originator of the
Mortgage Loan (and each assignee of record prior to the Trustee) in and to the
personalty of the Mortgagor at the Mortgaged Property (in each case with
evidence of filing thereon) and which were in the possession of the Mortgage
Loan Seller (or its agent) at the time the Mortgage Files were delivered and (B)
if any such security interest is perfected and the earlier UCC financing
statements and continuation statements were in the possession of the Mortgage
Loan Seller, a UCC financing statement executed by the most recent assignee of
record prior to the Trustee or, if none, by the originator, evidencing the
transfer of such security interest, either in blank or in favor of the Trustee;
(12) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to above was
not signed by the Mortgagor;
(13) the related Ground Lease or a copy thereof, if any;
(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;
(17) the original or a copy of any Environmental Policy;
(18) the original or a copy (if the original is held by the
Master Servicer) of any letter of credit and any related transfer documents; and
(19) for a hospitality property, copies of franchise
agreements, if any, and franchisor comfort letters, if any;
42
provided that, with respect to the Xxxx REMIC Regular Interest, the Xxxxxxx
REMIC Regular Interest, the Central REMIC Regular Interest, the Gateway REMIC
Regular Interest and the Summit REMIC Regular Interest, 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 mortgage loan
interests held by REMIC I, including the Xxxx REMIC Regular Interest, the
Xxxxxxx REMIC Regular Interest, the Central REMIC Regular Interest, the Gateway
REMIC Regular Interest and the Summit REMIC Regular Interest (or, where the
context requires, the mortgage loan or interest therein held by the REMIC
issuing such Regular Interest), transferred and assigned to the Trustee pursuant
to Section 2.01 and from time to time held in the Trust Fund (including, without
limitation, all Replacement Mortgage Loans, REO Loans and Specially Serviced
Mortgage Loans). As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage, participation certificate or agreement and/or other
security documents contained in the related Mortgage File.
"Mortgage Loan Purchase Agreement": With respect to any
Mortgage Loan Seller, each agreement between the Depositor and such Mortgage
Loan Seller relating to the transfer of all of such Mortgage Loan Seller's
right, title and interest in and to the related Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Schedule I, which list sets forth the following information
with respect to each Mortgage Loan:
(i) the loan number and name of the Mortgaged Property;
(ii) the street address (including city, state and zip code)
of the related Mortgaged Property;
(iii) the (A) Mortgage Rate in effect as of the Cut-off Date
and (B) whether such Mortgage Loan is an Adjustable Rate Mortgage Loan or a
Fixed Rate Loan;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the (A) remaining term to stated maturity, (B) with
respect to any ARD Loan, the Anticipated Repayment Date and (C) Stated Maturity
Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
43
(ix) in the case of any Adjustable Rate Mortgage Loan, the (A)
Index, (B) Gross Margin, (C) first Interest Rate Adjustment Date following the
Cut-off Date and the frequency of Mortgage Rate adjustments, and (D) maximum and
minimum lifetime Mortgage Rate;
(x) whether such Mortgage Loan is an ARD Loan, a Credit Lease
Loan, a Defeasance Loan, a Broker Strip Loan or an Additional Servicing Fee
Mortgage Loan;
(xi) in the case of a Credit Lease Loan, the identity of the
Tenant and the Guarantor under any applicable Guaranty, and the publicly
available corporate credit ratings of such Tenant and Guarantor as of the
Closing Date;
(xii) the Servicing Fee Rate; and
(xiii) whether such Mortgage Loan (A) is covered by an
Environmental Policy, (B) is a Cross-Collateralized Mortgage Loan, (C) is
subject to a Ground Lease and (D) has a letter of credit as part of the related
Mortgage File.
Such schedule shall also set forth the aggregate Cut-off Date Principal Balance
for all of the Mortgage Loans. Such list may be in the form of more than one
list, collectively setting forth all of the information required.
"Mortgage Loan Seller": GMAC Commercial Mortgage Corporation,
German American Capital Corporation and Xxxxxxx Xxxxx Mortgage Company.
"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).
"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; and (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.
"Mortgaged Property": Individually and collectively, as the
context may require, the real property interest (together with all improvements
and fixtures thereon) subject to the lien of a Mortgage and constituting
collateral for a Mortgage Loan. With respect to any Cross-Collateralized
Mortgage Loan, as the context may require, "Mortgaged Property" may mean,
collectively, all the Mortgaged Properties securing such Cross-Collateralized
Mortgage Loan.
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"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 3.20(f) in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period on funds
relating to the Trust Fund held in such account, exceeds the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account
for any Collection Period, the amount by which the aggregate of all losses, if
any, incurred during such Collection Period in connection with the investment of
funds relating to the Trust Fund held in such account in accordance with Section
2.02(e) and Section 3.06, exceeds the aggregate of all interest and other income
realized during such Collection Period on such funds, but Net Investment Loss
shall not include any loss with respect to such investment which is incurred
solely as a result of the insolvency of the federally or state chartered
depository institution or trust company that holds such Investment Account so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made and also as of a date no earlier than 60 days prior to the
insolvency, and so long as such depository institution or trust company is not
an Affiliate of either the Master Servicer or the Special Servicer.
"Net Mortgage Rate": With respect to any Mortgage Loan or any
REO Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect, minus the Servicing Fee Rate, but, for purposes of
calculating the REMIC I Remittance Rate, the REMIC II Remittance Rate and
Weighted Average Net Mortgage Rate, determined without regard to any
modification, waiver or amendment of the terms of such Mortgage Loan, whether
agreed to by the Master Servicer or Special Servicer or resulting from (i) the
bankruptcy, insolvency or similar proceeding involving the related Mortgagor or
(ii) the increase in the interest rate attributable to the Revised Rate to any
ARD Loan and, with respect to any Mortgage Loan that does not accrue interest on
the basis of a 360-day year consisting of twelve 30-day months, the Net Mortgage
Rate of such Mortgage Loan for such purposes for any one-month preceding a
related Due Date will be the annualized rate at which interest would have to
accrue in respect of such loan on the basis of a 360-day year consisting of
twelve 30-day months in order to produce the aggregate amount of interest
actually accrued in respect of such loan during such one-month period at the
related Mortgage Rate (net of the related Servicing Fee Rate); provided,
however, that with respect to the Interest Reserve Loans, (i) the Net Mortgage
Rate for the one-month period preceding the Due Dates in (a) January of each
calendar year that is not a leap year and (b) February of each calendar year,
will be determined net of the Withheld
45
Amounts and (ii) the Net Mortgage Rate for the one-month period preceding the
Due Dates in March of each calendar year will be determined after taking into
account the addition of the Withheld Amounts.
"Net Operating Income": With respect to any Mortgaged
Property, for any specified period, the net operating income calculated in
accordance with Exhibit G using the methodologies set forth in Exhibit F.
"Nonrecoverable Advance": Any Nonrecoverable Delinquency
Advance or Nonrecoverable Servicing Advance.
"Nonrecoverable Delinquency Advance": Any Delinquency Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO Loan
which, in the judgment of the Master Servicer or, if applicable, the Trustee,
will not be ultimately recoverable (together with Advance Interest thereon) from
late payments, Insurance Proceeds or Liquidation Proceeds, or any other recovery
on or in respect of such Mortgage Loan or REO Loan which shall be evidenced by
an Officer's Certificate as provided by Section 4.03(c).
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or any REO
Property which, in the judgment of the Master Servicer, the Special Servicer or,
if applicable, the Trustee, will not be ultimately recoverable (together with
Advance Interest thereon) from late payments, Insurance Proceeds, Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan or REO
Property which shall be evidenced by an Officers' Certificate as provided by
Section 3.11(h).
"Non-Registered Certificate": Unless and until registered
under the Securities Act, any Class X-1, Class X-2, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P or Residual
Certificate.
"Officer's Certificate": A certificate signed, as applicable,
by a Servicing Officer of the Master Servicer or the Special Servicer or by a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor, the Master Servicer
or the Special Servicer, acceptable and delivered to the Trustee, except that
any opinion of counsel relating to (a) the qualification of REMIC I, REMIC II or
REMIC III as a REMIC or (b) compliance with the REMIC Provisions, must be an
opinion of counsel who is in fact Independent of the Depositor, the Master
Servicer and the Special Servicer.
"Option": As defined in Section 3.18.
"Option Holder": As defined in Section 3.18.
"Option Notice": As defined in Section 3.18.
"Option Purchase Price": As defined in Section 3.18.
46
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof may have and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"Pass-Through Rate": With respect to:
(1) the Class X-1 Certificates, the Class X-1 Pass-Through
Rate;
(2) the Class X-2 Certificates, the Class X-2 Pass-Through
Rate;
(3) the Class A-1, Class A-2, Class A-3, Class B, Class C,
Class D and Class E Certificates, the fixed rate per annum specified for such
Class in the Preliminary Statement; and
(4) the Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates, for any Distribution Date,
the lesser of the fixed rate per annum specified for such Class in the
Preliminary Statement or the Weighted Average Net Mortgage Rate for such
Distribution Date.
"Payment Adjustment Date": With respect to each Adjustable
Rate Mortgage Loan, if any, any date on which the related Monthly Payment is
subject to adjustment pursuant to the related Mortgage Note. The first Payment
Adjustment Date subsequent to the Cut-off Date for each Adjustable Rate Mortgage
Loan, if any, is specified in the Mortgage Loan Schedule, and successive Payment
Adjustment Dates for such Adjustable Rate Mortgage Loan shall thereafter
periodically occur with the frequency specified in the Mortgage Loan Schedule.
"Payment Priority": With respect to any Class of Certificates,
the priority of the Holders thereof in respect of the Holders of the other
Classes of Certificates to receive distributions out of the Available
Distribution Amount for any Distribution Date, as set forth in Section 4.01(c)
hereof.
"Penalty Charges": With respect to any Mortgage Loan (or
successor REO Loan), any amounts collected thereon that represent late payment
charges or Default Interest.
"Percentage Interest": With respect to any REMIC III Regular
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or the Certificate Notional Amount of such Certificate as of the Closing
Date, as specified on the face thereof, and the denominator of which is the
Initial Class Principal Balance or Initial Class Notional Amount of the relevant
Class. With respect to a Residual Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Permitted Investments": Securities, instruments, or security
entitlements with respect to one or more of the following:
47
(1) obligations of or guaranteed as to principal and interest
by the United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United States;
(2) repurchase agreements on obligations specified in clause
(i) maturing not more than 30 days from the date of acquisition thereof,
provided that the unsecured obligations of the party agreeing to repurchase such
obligations are at the time rated by each Rating Agency in its highest
short-term rating available;
(3) federal funds, unsecured certificates of deposit, time
deposits and bankers' acceptances (which shall each have an original maturity of
not more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining maturity of
more than 30 days) denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the United States or
any state thereof or of any domestic branch of a foreign depository institution
or trust company; provided that the short-term debt obligations of such
depository institution or trust company at all times since the date of
acquisition thereof have been rated by each Rating Agency in its highest
short-term rating available;
(4) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the laws of the United
States or any state thereof which on the date of acquisition has been rated by
each Rating Agency in its highest short-term rating available; provided that
such commercial paper shall have a remaining maturity of not more than 30 days;
(5) a money market fund rated by each Rating Agency in its
highest rating category;
(6) commercial paper of issuers rated by each Rating Agency in
its highest short-term rating available; provided that such obligations shall
have a remaining maturity of not more than 30 days and such obligations are
limited to the right to receive only monthly principal and interest payments;
(7) short-term debt obligations of issuers rated A-1 (or the
equivalent) by each Rating Agency having a maturity of not more than 30 days;
provided that the total amount of such investment does not exceed the greater of
(A) 20% of the then outstanding principal balance of the Certificates, and (B)
the amount of monthly principal and interest payments (other than Balloon
Payments) payable on the Mortgage Loans during the preceding Collection Period;
provided, further, and notwithstanding the preceding proviso, that if all of the
Mortgage Loans are fully amortizing, then the amount of such investment shall
not exceed the amount of monthly principal and interest payments (other than
Balloon Payments) payable on the Mortgage Loans during the preceding Collection
Period;
(8) fully Federal Deposit Insurance Corporation-insured demand
and time deposits in, or certificates of deposit of, or bankers' acceptances
issued by, any bank or trust company, savings and loan association or savings
bank, the short term obligations of which are rated in the highest short term
rating category by each Rating Agency; and
48
(9) other obligations or securities that are acceptable to
each Rating Agency as a Permitted Investment hereunder and which would not
result in the downgrade, qualification or withdrawal of the then-current rating
assigned to any Class of Certificates by the Rating Agency, as evidenced in
writing;
provided, however, that no instrument shall be a Permitted Investment (A) unless
it has a predetermined fixed dollar amount of principal due at maturity that
cannot vary or change, and its interest rate is tied to a single interest rate
index plus a single fixed spread (if any) and moves proportionately with such
index and (B) if it represents, (1) the right to receive only interest payments
with respect to the underlying debt instrument, (2) the right to receive both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity greater than 120% of the yield to
maturity at par of such underlying obligations, (3) an obligation that has a
remaining maturity of greater than 365 days from the date of acquisition
thereof. References herein to the highest rating available on money market funds
shall mean AAAm in the case of Standard & Poor's and Aaa in the case of Moody's,
and references herein to the highest rating available on unsecured commercial
paper and short-term debt obligations shall mean A-1+ in the case of Standard &
Poor's and P-1 in the case of Moody's.
"Permitted Transferee": Any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) any electing
large partnership under Section 775 of the Code and (vi) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Residual Certificate by such Person may cause the
Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Person": Any legal person, including, without limitation, any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Plan": As defined in Section 5.02(c)(i).
"Post-Determination Date Payment Report". A report prepared by
the Master Servicer showing all payments received after the Determination Date.
49
"Preliminary Statement": The introductory section in this
Agreement found on pages 1 through 4 hereof.
"Prepayment Assumption": A CPR of 0% and an assumption that a
Principal Prepayment in full will be made on any ARD Loan on its Anticipated
Repayment Date, used for determining the accrual of original issue discount,
market discount and premium, if any, on the REMIC I Regular Interests, the REMIC
II Regular Interests and the Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part during any
Collection Period, which Principal Prepayment was received following the Due
Date for such Mortgage Loan in such Collection Period, the amount of interest
(net of related Servicing Fees and, if applicable, Excess Interest) accrued on
the amount of such Principal Prepayment during the period from and after such
Due Date, to the extent collected (without regard to any Prepayment Premium that
may have been collected).
"Prepayment Interest Shortfall": With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part (including,
without limitation, an early Balloon Payment) during any Collection Period,
which Principal Prepayment was received prior to the Due Date for such Mortgage
Loan in such Collection Period, the amount of interest that would have accrued
at the related Net Mortgage Rate on the amount of such Principal Prepayment
during the period from the date as of which such Principal Prepayment was
applied to such Mortgage Loan to but not including such Due Date, to the extent
not collected from the related Mortgagor (without regard to any Prepayment
Premium or Excess Interest that may have been collected).
"Prepayment Premium": Any premium, penalty, yield maintenance
charge or fee paid or payable, as the context requires, by a Mortgagor in
connection with a Principal Prepayment on, or other early collection of
principal of, a Mortgage Loan or REO Loan.
"Primary Servicing Office": With respect to each of the Master
Servicer and the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement; initially located in
Pennsylvania, in the case of the Master Servicer, and California, in the case of
the Special Servicer.
"Principal Allocation Fraction": With respect to any
Distribution Date and each of Class A-1, Class A-2, Class A-3, Class B, Class C,
Class D, Class E, Class F, Class G and Class H Certificates, a fraction the
numerator of which is the portion of the Principal Distribution Amount allocable
to such Class of Certificates for such Distribution Date and the denominator of
which is the Principal Distribution Amount for all Classes of Certificates as of
such Distribution Date.
"Principal Balance Certificate": Any REMIC III Regular
Certificate other than a Class X-1 or Class X-2 Certificate.
"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
50
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 June 26, 2001, as
supplemented by the Prospectus Supplement dated June 20, 2002, relating to the
offering of the Registered Certificates.
"PTCE 95-60": As defined in Section 5.02(c)(ii).
"Purchase Price": With respect to any Mortgage Loan, a price
equal to the following: (a) the outstanding principal balance of such Mortgage
Loan as of the date of purchase; plus (b) all accrued and unpaid interest on
such Mortgage Loan at the related Mortgage Rate in effect from time to time to
but not including the Due Date in the Collection Period of purchase; plus (c)
all related unreimbursed Servicing Advances; plus (d) all accrued and unpaid
Advance Interest in respect of related Advances; plus (e) if such Mortgage Loan
is being purchased by a Mortgage Loan Seller pursuant to Section 6 of the
related Mortgage Loan Purchase Agreement or by GMACCM pursuant to Section 4 of
the related Supplemental Agreement (i) all expenses incurred or to be incurred
by the Master Servicer, the Special Servicer, the Depositor and the Trustee in
respect of the Breach or Document Defect giving rise to the repurchase
obligation and (ii) the aggregate amount of all Special Servicer Fees, Advance
Interest (to the extent, if any, not included in clause (d) above) in respect of
related Advances and Additional Trust Fund Expenses incurred prior to such date
of purchase and, in each case, in respect of the related Mortgage Loan and, if
the applicable Mortgage Loan Seller repurchases such Mortgage Loan after more
than 180 days following its receipt of notice of a material breach of a
representation or warranty, the applicable Mortgage Loan Seller will also be
required to pay a 1% Liquidation Fee. The Purchase Price for any
Cross-Collateralized Mortgage Loan that is required to be repurchased pursuant
to Section 2.03(a) as a result of a Breach or Document Defect shall include such
additional amounts as are required to satisfy the "release price" requirements
of the applicable Mortgage Loan documents. With respect to any REO Property, the
amount calculated in accordance with the first sentence of this definition in
respect of the related REO Loan.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated
51
appraiser or, if a MAI-designated appraiser is not reasonably available, a state
certified appraiser, in each case, with at least five (5) years experience in
appraising similar types of property.
"Qualified Institutional Buyer": A "qualified institutional
buyer" as defined under Rule 144A promulgated under the Securities Act.
"Qualified Insurer": An insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In the case of a
Deleted Mortgage Loan, a mortgage loan which, on the date of substitution, (i)
has a principal balance, after deduction of the principal portion of the Monthly
Payment due in the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) is accruing interest at a rate of
interest at least equal to that of the Deleted Mortgage Loan; (iii) has a fixed
Mortgage Rate if the Deleted Mortgage Loan is a Fixed Rate Mortgage Loan and an
adjustable Mortgage Rate (with the same Index, Gross Margin and frequency of
Interest Rate Adjustment Dates and Payment Adjustment Dates as the Deleted
Mortgage Loan) if the Deleted Mortgage Loan is an Adjustable Rate Mortgage Loan;
(iv) is accruing interest on the same basis (for example, a 360-day year
consisting of twelve 30-day months) as the Deleted Mortgage Loan; (v) has a
remaining term to stated maturity or Anticipated Repayment Date, in the case of
any ARD Loan, not greater than, and not more than two years less than, that of
the Deleted Mortgage Loan; (vi) has an original Loan-to-Value Ratio not higher
than that of the Deleted Mortgage Loan and a current Loan-to-Value Ratio (equal
to the principal balance on the date of substitution divided by its Appraised
Value as determined by an Appraisal dated not more than twelve months prior to
the date of substitution) not higher than the then current Loan-to-Value Ratio
of the Deleted Mortgage Loan; (vii) will comply with all of the representations
and warranties relating to Mortgage Loans set forth in the related Mortgage Loan
Purchase Agreement, as of the date of substitution; (viii) has an Environmental
Assessment relating to the related Mortgaged Property in its Servicing File;
(ix) has a Debt Service Coverage Ratio equal to or greater than that of the
Deleted Mortgage Loan; (x) has been approved by the Majority Certificateholder
of the Controlling Class (and the applicable Mortgage Loan Seller shall pay the
reasonable expenses of the due diligence (including reasonable legal fees)
incurred by the Majority Certificateholder of the Controlling Class in reviewing
any proposed Qualifying Substitute Mortgage Loan); and (xi) as to which the
Trustee has received an Opinion of Counsel, at the related Mortgage Loan
Seller's expense, that such Qualifying Substitute Mortgage Loan is a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided that no Qualifying Substitute Mortgage Loan may have a Maturity Date
after the date three years prior to the Rated Final Distribution Date, and
provided, further, that no such Qualifying Substitute Mortgage Loan shall be
substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained. In the event that either one mortgage loan is substituted for more
than one Deleted Mortgage Loan or more than one mortgage loan is substituted for
one or more Deleted Mortgage Loans, then (a) the principal balance referred to
in clause (i) above shall be determined on the basis of aggregate principal
balances and (b) the rates referred to in clauses (ii) and (iii) above and the
remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis. Whenever a Qualifying Substitute
Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to this
Agreement, the party effecting such substitution shall certify that such
52
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
October 2038.
"Rating Agency": Each of Moody's and Standard & Poor's.
"Rating Agency Confirmation": With respect to any matter and
any Rating Agency, where required under this Agreement, confirmation in writing
by such Rating Agency that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade
or qualification of the rating assigned by such Rating Agency to any Class of
Certificates then rated by such Rating Agency. For all purposes of this
Agreement, the placement by a Rating Agency of any Class of Certificates on
"negative credit watch" shall constitute a qualification of such Rating Agency's
rating of such Certificates.
"Realized Loss": With respect to each defaulted Mortgage Loan
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 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).
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 3.21, 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 3.21, the amount of
the consequent reduction in the interest portion of each successive Monthly
Payment due thereon. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
53
"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
A-3, 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 June 20, 2002 under the column heading "Related Group."
"Release Date": As defined in Section 3.08(d)
"Remaining Certificateholder": Any Holder (or Holders provided
they act in unanimity) holding 100% of the Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates and Class X Certificates or an
assignment of the voting rights thereof; provided, however, that the Certificate
Balances of the Class A, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates have been reduced to zero.
"REMIC": A "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to which a REMIC election is to be made, consisting of: (i) the
Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of such Mortgage Loans received or receivable after
the Cut-off Date (other than (a) Excess Interest and (b) payments of principal,
interest and other amounts due and payable on the Mortgage Loans on or before
the Cut-off Date), together with the rights under all documents delivered or
caused to be delivered under the Mortgage Loan Purchase Agreements with respect
to the Mortgage Loans by the Mortgage Loan Sellers; (ii) the Certificateholders'
interest in any REO Properties acquired in respect of the Mortgage Loans; (iii)
the Certificateholders' interest in such funds or assets (other than Excess
Interest) as from time to time are deposited in the Distribution Account, the
Certificate Account and the REO Account (if established); and (iv) the rights of
the Depositor under Sections 2, 4(a) and 6 of each Mortgage Loan Purchase
Agreement and the rights of the Depositor under Sections 2 and 4 of each
Supplemental Agreement assigned by the Depositor to the Trustee.
"REMIC I Regular Interest": With respect to each Mortgage Loan
(and any successor REO Loan), the separate non-certificated beneficial ownership
interest in REMIC I issued hereunder and designated as a "regular interest" in
REMIC I. Each REMIC I Regular Interest shall accrue interest at the related
REMIC I Remittance Rate and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance (which shall equal the Cut-off Date
Principal Balance of the related Mortgage Loan). The designation for each REMIC
I Regular Interest shall be the loan number for the initial related Mortgage
Loan set forth in the Mortgage Loan
54
Schedule. If a Replacement Mortgage Loan or Loans are substituted for any
Deleted Mortgage Loan, the REMIC I Regular Interest that related to the Deleted
Mortgage Loan shall thereafter relate to such Replacement Mortgage Loan(s).
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, a rate per annum equal to the Net Mortgage
Rate in effect for the related Mortgage Loan or REO Loan, as the case may be. If
any Mortgage Loan included in the Trust Fund as of the Closing Date is replaced
by a Replacement Mortgage Loan or Loans, the REMIC I Remittance Rate for the
related REMIC I Regular Interest shall still be calculated in accordance with
the preceding sentence based on the Net Mortgage Rate for the Deleted Mortgage
Loan.
"REMIC II": The segregated pool of assets consisting of all of
the REMIC I Regular Interests, with respect to which a separate REMIC election
is to be made.
"REMIC II Distribution Amount": As defined in Section 4.01(a).
"REMIC II Regular Interest": Any of the twenty (20) separate
non-certificated beneficial ownership interests in REMIC II issued hereunder
designated as a "regular interest" in REMIC II and identified individually as
REMIC II Regular Interests XX-0, XX-0-0, XX-0-0, XX-0-0, LA3-2, LB, LC, LD, LE,
LF, XX-0, XX-0, XX, XX, XX, XX, XX, LN, LO and LP. Each REMIC II Regular
Interest shall accrue interest at the related REMIC II Remittance Rate in effect
from time to time and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto. The designations for the respective REMIC II Regular Interests are set
forth in the Preliminary Statement hereto.
Each REMIC II Regular Interest corresponds to a Class of
Principal Balance Certificates and a Class X Component as follows; provided,
that REMIC II Regular Interests LA-2-1 and LA-2-2 shall both correspond to the
Class A-2 Certificates, REMIC II Regular Interests LA-3-1 and LA-3-2 shall both
correspond to the Class A-3 Certificates, and REMIC II Regular Interests LG-1
and LG-2 shall both correspond to the Class G Certificates:
REMIC II CLASS OF PRINCIPAL CLASS X
REGULAR INTEREST BALANCE CERTIFICATES COMPONENT
------------------------- ---------------------------- -------------------------------------
Class LA-1 Class A-1 Class LA-1 Component(1)
Class LA-2-1 Class A-2 Class LA-2-1 Component(1)
Class LA-2-2 Class A-2 Class LA-2-2 Component(1)(2)
------------------------- ---------------------------- -------------------------------------
Class LA-3-1 Class A-3 Class LA-3-1 Component(1)(2)
------------------------- ---------------------------- -------------------------------------
Class LA-3-2 Class A-3 Class LA-3-2 Component(1)(2)
Class LB Class B Class LB Component(1)(2)
Class LC Class C Class LC Component(1)(2)
-------------
1 Applicable to the Class X-1 Certificates.
2 Applicable to the Class X-2 Certificates.
55
Class LD Class D Class LD Component(1)(2)
Class LE Class E Class LE Component(1)(2)
Class LF Class F Class LF Component(1)(2)
Class LG-1 Class G Class LG-1 Component(1)(2)
Class LG-2 Class G Class LG-2 Component(1)(2)
Class LH Class H Class LH Component(1)(2)
Class LJ Class J Class LJ Component(1)(2)
Class LK Class K Class LK Component(1)(2)
Class LL Class L Class LL Component(1)
Class LM Class M Class LM Component(1)
Class LN Class N Class LN Component(1)
Class LO Class O Class LO Component(1)
Class LP Class P Class LP Component(1)
"REMIC II Remittance Rate": With respect to each REMIC II
Regular Interest, for any Distribution Date, the weighted average of the
respective REMIC I Remittance Rates for all REMIC I Regular Interests for such
Distribution Date (weighted on the basis of the respective Uncertificated
Principal Balances of the related REMIC I Regular Interests immediately prior to
such Distribution Date).
"REMIC III": The segregated pool of assets consisting of all
of the REMIC II Regular Interests, with respect to which a separate REMIC
election is to be made.
"REMIC III Certificate": Any Certificate, other than a Class
R-I or Class R-II Certificate.
"REMIC III Regular Certificate": Any REMIC III Certificate,
other than a Class R-III Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (and, to the extent not
inconsistent with such temporary and final regulations, proposed regulations)
and any published rulings, notices and announcements, promulgated thereunder, as
the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code, which
income, subject to the terms and conditions of that Section of the Code in its
present form, does not include:
56
(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 2002-C2.
"REO Acquisition": The acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO
Property pursuant to Section 3.19.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
provide for monthly payments of principal and/or interest equal to the
applicable Assumed Monthly Payment and otherwise to have the same terms and
conditions as its predecessor Mortgage Loan, including, without limitation, with
respect to the calculation of the Mortgage Rate in effect from time to time
(such terms and conditions to be applied without regard to the default on such
predecessor Mortgage Loan). 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
57
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, the Trustee or the
Fiscal Agent 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, the Trustee or the Fiscal Agent, as the case may
be, in respect of an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf and in the name of the Trustee for the benefit of the
Certificateholders 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 Tax": As defined in Section 3.17(a)(i).
"Replacement Mortgage Loan": Any Qualifying Substitute
Mortgage Loan that is substituted for one or more Deleted Mortgage Loans.
"Request for Release": A release signed by a Servicing
Officer, in the form of Exhibit D attached hereto.
"Required Appraisal Loan": As defined in Section 3.20(d).
"Reserve Account": The account or accounts created and
maintained pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any cash
amounts or instruments convertible into cash delivered by the related Mortgagor
to be held in escrow by or on behalf of the mortgagee representing reserves for
items such as repairs, replacements, capital improvements and/or environmental
testing and remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I, Class R-II or Class
R-III Certificate.
"Resolution Extension Period": With respect any Mortgage Loan
and any Material Document Defect or Material Breach which would require the
related Mortgage Loan Seller to cure, repurchase or substitute for such Mortgage
Loan pursuant to the terms of the related Mortgage Loan Purchase Agreement or
Supplemental Agreement, as applicable:
(i) with respect to a Material Breach or a Material Document
Defect relating to any Mortgage Loan, the ninety (90) day period following the
end of the applicable Initial Resolution Period;
58
(ii) with respect to a Material Document Defect relating to
any Mortgage Loan that is not a Specially Serviced Mortgage Loan at any time
during the applicable Initial Resolution Period, the period commencing at the
end of the applicable Initial Resolution Period and ending on, and including,
the earlier of: (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following the applicable Mortgage Loan Seller's
receipt of written notice from the Master Servicer or the Special Servicer of
the occurrence of any Servicing Transfer Event with respect to such Mortgage
Loan subsequent to the end of such Initial Resolution Period;
(iii) with respect to a Material Document Defect relating to
any Mortgage Loan that is not a Specially Serviced Mortgage Loan as of the
commencement of the applicable Initial Resolution Period but is subject to a
Servicing Transfer Event during such Initial Resolution Period, the period
commencing at the end of the applicable Initial Resolution Period and ending on,
and including, the 90th day following the applicable Mortgage Loan Seller's
receipt of written notice from the Master Servicer or the Special Servicer of
the occurrence of such Servicing Transfer Event; and
(iv) with respect to a Material Document Defect relating to
any Mortgage Loan that is a Specially Serviced Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, thirty (30) days,
provided that, if the applicable Mortgage Loan Seller did not receive written
notice from the Master Servicer or the Special Servicer of the relevant
Servicing Transfer Event as of the commencement of the applicable Initial
Resolution Period, then such Servicing Transfer Event will be deemed to have
occurred during such Initial Resolution Period and clause (iii) of this
definition will be deemed to apply.
"Responsible Officer": When used with respect to the initial
Trustee, any officer of its Asset-Backed Securities Trust Services Group with
direct responsibility for the transaction contemplated by this Agreement and
with respect to any successor Trustee, any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any trust officer
or assistant trust officer, or any assistant controller in its corporate trust
department or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers to whom a
particular matter is referred by the Trustee because of such officer's knowledge
of and familiarity with the particular subject.
"Revised Rate": With respect to any ARD Loan, the increased
interest rate after the Anticipated Repayment Date (in the absence of a default)
for such ARD Loan, as calculated and as set forth in the related Mortgage Note
or Mortgage.
"Securities Act": The Securities Act of 1933, as amended.
"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, Class A-2 or
Class A-3 Certificate.
59
"Servicer Reports": The CMSA Delinquent Loan Status Report,
the CMSA Historical Loan Modification Report, the CMSA Historical Liquidation
Report, the CMSA REO Status Report, the CMSA Servicer Watch List, the CMSA NOI
Adjustment Worksheet, the CMSA Comparative Financial Status Report and the CMSA
Operating Statement Analysis Report.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses (including attorneys' fees and expenses and
fees of real estate brokers) incurred by the Master Servicer, or if applicable,
the Trustee or the Fiscal Agent 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 any REO Property, (iv) any enforcement or judicial proceedings with respect
to a Mortgaged Property, including foreclosures, and (v) the operation,
management, maintenance and liquidation of any REO Property. All Emergency
Advances made by the Master Servicer hereunder shall be considered "Servicing
Advances" for the purposes hereof.
"Servicing Fee Rate": With respect to any Mortgage Loan
(including any REO Loan), the percentage rate per annum set forth with respect
to such Mortgage Loan (including any REO Loan) on the Mortgage Loan Schedule.
"Servicing Fees": With respect to any Distribution Date and
each Mortgage Loan and each REO Loan, the fee payable to the Master Servicer
pursuant to Section 3.11(a).
"Servicing File": Any documents (including copies of the
documents required to be part of the related Mortgage File), including but not
limited to appraisals, environmental reports, engineering reports, legal
opinions, the applicable Mortgage Loan Seller's asset summary and original
underwriting, delivered to the Master Servicer or the Special Servicer and
relating to the origination and servicing of any Mortgage Loan; provided that no
information that is proprietary to the related Mortgage Loan Seller shall be
considered part of the Servicing File.
"Servicing Officer": Any officer of the Master Servicer or the
Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, 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".
60
"Special Reserve Account ": A segregated custodial account or
accounts created and maintained by the Trustee or the Master Servicer pursuant
to Section 2.02(e) on behalf of the Trustee in trust for the Certificateholders,
which shall be entitled "[LaSalle Bank National Association] [GMAC Commercial
Mortgage Corporation, as Master Servicer], in trust for the registered holders
of GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2002-C2." Any such account shall be an Eligible Account and
shall be an "outside reserve fund" for purposes of the REMIC Provisions, which
is not held by REMIC 1.
"Special Servicer": GMACCM, or any successor special servicer
appointed as herein provided.
"Special Servicing Fee": With respect to each Specially
Serviced Mortgage Loan (including any Mortgage Loan) and REO Loan, the fee
designated as such and payable to the Special Servicer pursuant to Section
3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan (including any Mortgage Loan) and REO Loan, 0.250% per
annum.
"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) with respect to a Balloon Mortgage Loan, a payment default
shall have occurred with respect to the related Balloon Payment; provided,
however, that if the Mortgagor continues to make its Assumed Monthly Payment and
diligently pursues refinancing, a Servicing Transfer Event shall not occur with
respect to such Mortgage Loan until 90 days following such default (or, if the
Mortgagor has produced a written refinancing commitment that is reasonably
acceptable to the Special Servicer and the Majority Certificateholder of the
Controlling Class has given its consent, 150 days following such default); or
(2) the related Mortgagor has failed to make when due any
Monthly Payment (other than a Balloon Payment) or any other payment required
under the related Mortgage Note or the related Mortgage, which failure continues
unremedied for 60 days; or
(3) the Master Servicer or the Majority Certificateholder of
the Controlling Class, as applicable, has determined in its good faith and
reasonable judgment, that a default in the making of a Monthly Payment or any
other payment required under the related Mortgage Note or the related Mortgage
is likely to occur within 30 days and is likely to remain unremedied for at
least 60 days or, except as provided in clause (1) above, in the case of a
Balloon Payment, for at least 30 days; or
(4) there shall have occurred a default, other than as
described in clause (1) or (2) above, that materially impairs the value of the
related Mortgaged Property as security for the Mortgage Loan 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
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bankruptcy, insolvency or similar law or the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the related
Mortgagor and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(6) the related Mortgagor shall have consented to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to such Mortgagor or of or relating to all or
substantially all of its property; or
(7) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition to
take advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended payment of
its obligations; or
(8) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the related
Mortgaged Property;
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 3.21);
(x) with respect to the circumstances described in clauses
(3), (5), (6) and (7) above, such circumstances cease to exist in the
good faith and reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (4)
above, such default is cured; and
(z) with respect to the circumstances described in clause
(8) above, such proceedings are terminated.
"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
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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 3.21 or, in the case
of any ARD Loan, the Anticipated Repayment Date for such Mortgage Loan.
"Stated Principal Balance": With respect to any Mortgage Loan
(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 any
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.
"Strip Holder": The related entity set forth on the Broker
Strip Schedule for each Mortgage Loan listed thereon, or any heir, successor or
assign; provided, however, that if the agreement which entitles the Strip Holder
to receive the applicable Broker Strip is terminated in either case, the
applicable Strip Holder shall thereafter be the party designated as such in
writing by Xxxxxxx Xxxxx Mortgage Company to the Master Servicer.
"Subordinated Certificate": Any Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P or Residual Certificate.
"Sub-Servicer": Any Person with which the Master Servicer has
entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Master Servicer and any Sub-Servicer relating to servicing and administration of
Mortgage Loans as provided in Section 3.23.
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"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).
"Summit REMIC": The single-asset REMIC established with
respect to the mortgage loan identified on the Mortgage Loan Schedule as loan
number 09-0001518 which REMIC was created by a REMIC declaration made by Xxxxxxx
Sachs Mortgage Company on June 1, 2002.
"Summit REMIC Regular Interest": The REMIC regular interest in
the Summit REMIC, which regular interest was transferred and assigned by Xxxxxxx
Xxxxx Mortgage Company to the Depositor pursuant to the Mortgage Loan Purchase
Agreement between the Depositor and Xxxxxxx Sachs Mortgage Company.
"Summit REMIC Residual Interest": The REMIC residual interest
in the Summit REMIC, which residual interest was transferred and assigned by
Xxxxxxx Xxxxx Mortgage Company to the Depositor pursuant to the Mortgage Loan
Purchase Agreement between the Depositor and Xxxxxxx Sachs Mortgage Company.
"Supplemental Agreement": Each of (i) the Supplemental
Agreement dated as of June 20, 2002 between GMACCM and Xxxxxxx Xxxxx Mortgage
Company and (ii) the Supplemental Agreement dated as of June 20, 2002 between
GMACCM and German American Capital Corporation, as amended, restated or
otherwise supplemented from time to time.
"Tax Returns": The federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I, REMIC II and REMIC III due to its
classification as a REMIC under the REMIC Provisions, and the federal income tax
return to be filed on behalf of the Grantor Trust due to its classification as a
grantor trust under the Grantor Trust Provisions, together with any and all
other information, reports or returns that may be required to be furnished to
the Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, or
Applicable State Law.
"Tenant": With respect to any Credit Lease Loan, the lessee
thereunder.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in
Section 5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
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"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust Fund": Collectively, the Excess Interest and all of
the assets of REMIC I, REMIC II and REMIC III.
"Trustee": LaSalle Bank National Association, in its
capacity as Trustee under this Agreement, its successor in interest, or any
successor trustee appointed as herein provided.
"Trustee Fee": With respect to any Distribution Date and each
Mortgage Loan and REO Loan, an amount equal to one-twelfth of the product of the
Trustee Fee Rate and the aggregate Stated Principal Balance of each Mortgage
Loan and each REO Loan immediately following the prior Distribution Date.
"Trustee Fee Rate": 0.0032%. The Trustee Fee Rate is
included in the Servicing Fee Rate set forth for each Mortgage Loan on the
Mortgage Loan Schedule.
"UCC": The Uniform Commercial Code of any applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana, the comparable provisions of
Louisiana law.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest (calculated on
the basis of a 360 day year consisting of twelve 30-day months) at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
I Regular Interest outstanding immediately prior to such Distribution Date. With
respect to any REMIC II Regular Interest, for any Distribution Date, one month's
interest (calculated on the basis of a 360-day year consisting of twelve 30-day
months) at the REMIC II Remittance Rate applicable to such REMIC II Regular
Interest for such Distribution Date, accrued on the Uncertificated Principal
Balance of such REMIC II Regular Interest outstanding immediately prior to such
Distribution Date. The Uncertificated Accrued Interest in respect of any REMIC I
Regular Interest or REMIC II Regular Interest for any Distribution Date shall be
deemed to accrue during the applicable Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any
REMIC I Regular Interest for any Distribution Date, the Uncertificated Accrued
Interest in respect of such REMIC I Regular Interest for such Distribution Date,
reduced (to not less than zero) by the product of (i) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is the
Uncertificated Accrued Interest in respect of such REMIC I Regular Interest for
such Distribution Date, and the denominator of which is the aggregate
Uncertificated Accrued Interest in respect of all the REMIC I Regular Interests
for such Distribution Date. With respect to any REMIC II Regular Interest for
any Distribution Date, an amount equal to: (a) the Uncertificated Accrued
Interest in respect of such REMIC II Regular Interest for such Distribution
Date; reduced (to not less than zero) by (b) the portion, if any, of the Net
Aggregate Prepayment Interest Shortfall, if any, for such Distribution Date
allocated to such REMIC II Regular Interest which shall be allocated in
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the same manner as such Net Aggregate Prepayment Interest Shortfall is allocated
amongst the corresponding REMIC III Regular Certificates.
"Uncertificated Principal Balance": The principal amount of
any REMIC I Regular Interest or REMIC II Regular Interest outstanding as of any
date of determination. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall equal the Cut-off Date Principal
Balance of the related Mortgage Loan. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall be
reduced by all distributions of principal deemed to have been made thereon on
such Distribution Date pursuant to Section 4.01(a) and, if and to the extent
appropriate, shall be further reduced on such Distribution Date as provided in
Section 4.04(a). As of the Closing Date, the Uncertificated Principal Balance of
each REMIC II Regular Interest shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated Principal Balance. On
each Distribution Date, the Uncertificated Principal Balance of each such REMIC
II Regular Interest shall be reduced by all distributions of principal deemed to
have been made thereon on such Distribution Date pursuant to Section 4.01(b)
and, if and to the extent appropriate, shall be further reduced on such
Distribution Date as provided in Section 4.04(b).
"Underwriter": Each of Deutsche Bank Securities Inc. and
Xxxxxxx, Sachs & Co.
"Uninsured Cause": Any cause of damage to property subject to
a Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"United States Person": A citizen or resident of the United
States, a corporation or partnership (unless, in the case of a partnership,
Treasury regulations are adopted that provide otherwise) created or organized in
or under the laws of the United States, any State thereof or the District of
Columbia, including an entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
"USPAP": The Uniform Standards of Professional Appraisal
Practices.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 98% of the Voting Rights shall be allocated among the
Holders of the various outstanding Classes of Principal Balance Certificates in
proportion to the respective Class Principal Balances of their Certificates, 1%
of the Voting Rights shall be allocated among the Holders of the Class X-1 and
Class X-2 Certificates in proportion to the respective Class Notional Amounts of
such Certificates and the remaining Voting Rights shall be allocated equally
among the Holders of the respective Classes of the Residual Certificates. Voting
Rights allocated to a Class of Certificateholders shall be
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allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the REMIC II Remittance Rate for each REMIC II Regular
Interest for such Determination Date.
"Withheld Amount": With respect to (a) each Interest Reserve
Loan and (b) each Distribution Date occurring in (i) January of each calendar
year that is not a leap year and (ii) February of each calendar year, an amount
equal to one day's interest at the related Mortgage Rate (less any Servicing Fee
payable therefrom) on the respective Stated Principal Balance as of the Due Date
in the month in which such Distribution Date occurs, to the extent that a
Monthly Payment or Delinquency Advance is made in respect thereof.
"Workout": Any written modification, waiver, amendment,
restructuring or workout of a Specially Serviced Mortgage Loan or a related
Mortgage Note entered into with a Mortgagor in accordance with Section 3.09
hereof.
"Workout Fee": With respect to each Corrected Mortgage Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
third paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage
Loan as to which a Workout Fee is payable, 1.00%.
SECTION 1.02 Certain Calculations in Respect of the Mortgage
Pool
(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
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
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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 any REO Property pursuant to paragraphs (a) and (b) of this
Section 1.02 shall be determined by the Master Servicer in its good faith
judgment.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
SECTION 2.01 Establishment of Trust; Conveyance of Mortgage
Loans.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby establish a trust, appoint the Trustee to serve as
trustee of such trust and assign to the Trustee without recourse for the benefit
of the Certificateholders all the right, title and interest of the Depositor,
including any security interest therein for the benefit of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
Sections 2, 4(a), 6 and 13 of each Mortgage Loan Purchase Agreement and Sections
2, 4 and 6 of each Supplemental Agreement and (iii) all other assets included or
to be included in REMIC I. Such assignment includes all interest and principal
received or receivable on or with respect to the Mortgage Loans (other than
payments of principal, interest and other amounts due and payable on the
Mortgage Loans on or before the Cut-off Date). The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant
to subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be
delivered to and deposited with, the Trustee or the Custodian
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(with a copy to the Master Servicer), on or before the Closing Date, the
Mortgage File for each of such Mortgage Loan Seller's Mortgage Loans so
assigned. Further, each of the Mortgage Loan Sellers pursuant to the applicable
Mortgage Loan Purchase Agreement has agreed to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage Note, a copy of
the Mortgage, a copy of any related Ground Leases, the originals or copies of
any related letters of credit (and any transfer or assignment documents) and the
lender's title insurance policy (original or copy or marked-up title commitment
marked as binding and countersigned by the title company or its authorized agent
either on its face or by an acknowledged closing instruction or escrow letter)
for each Mortgage Loan so assigned; provided, however, that if any Mortgage Loan
Seller fails to deliver on or before the Closing Date, with respect to any
Mortgage Loan so assigned, a copy of the Mortgage, a copy of any related Ground
Lease, the originals of any related letters of credit or the lender's title
policy (original or copy or marked-up title commitment marked as binding and
countersigned by the title company or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter), the delivery
requirements of this Section 2.01(b) shall be deemed satisfied with respect to
such missing document if the Mortgage Loan Seller delivers such document to the
Trustee within 15 Business Days following the Closing Date. If the related
Mortgage Loan Seller cannot deliver, or cause to be delivered as to any Mortgage
Loan, the original Mortgage Note, the Mortgage Loan Seller shall deliver a copy
or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed (and including
an indemnification provision). If the related Mortgage Loan Seller cannot
deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (2), (4), (11) and (12) of the
definition of "Mortgage File", with evidence of recording or filing, as the case
may be, thereon, because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, or because such original recorded document has been lost or returned
from the recording or filing office and subsequently lost, as the case may be,
the delivery requirements of the related Mortgage Loan Purchase Agreement and
this Section 2.01(b) shall be deemed to have been satisfied as to such missing
document or instrument, and such missing document or instrument shall be deemed
to have been included in the Mortgage File, provided that a photocopy of such
missing document or instrument (without evidence of recording or filing thereon,
but certified (which certification may relate to multiple documents or
instruments) by the related Mortgage Loan Seller to be a true and complete copy
of the original thereof submitted for recording or filing, as the case may be)
is delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date and either the original of such missing document or instrument, or
a copy thereof, with evidence of recording or filing, as the case may be,
thereon, is delivered to or at the direction of the Trustee within 180 days of
the Closing Date (or within such longer period after the Closing Date as the
Trustee may consent to, which consent shall not be unreasonably withheld so long
as the related Mortgage Loan Seller has provided the Trustee with evidence of
such recording or filing, as the case may be, or has certified to the Trustee as
to the occurrence of such recording or filing, as the case may be, and is, as
certified to the Trustee no less often than quarterly, in good faith attempting
to obtain from the appropriate county recorder's or filing office such original
or copy). Upon request, the Trustee shall provide a copy of any such
certification, promptly after receipt thereof, to any Certificate Owner holding
a Certificate in the Controlling Class that has provided a certification to the
Trustee in the form attached hereto as Exhibit H. If the related
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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 pro
forma title policy or commitment for title insurance "marked-up" at the closing
of such Mortgage Loan, marked as binding by the insurer or its agent, and the
related Mortgage Loan Seller shall deliver to the Trustee or such Custodian,
promptly following the receipt thereof, the original related lender's title
insurance policy (or a copy thereof). In addition, notwithstanding anything to
the contrary contained herein, if there exists with respect to any group of
related Cross-Collateralized Mortgage Loans only one original of any document
referred to in the definition of "Mortgage File" covering all the Mortgage Loans
in such group, then the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
Neither the Trustee nor any Custodian shall in any way be liable for any failure
by the Mortgage Loan Seller or the Depositor to comply with the delivery
requirements of the Mortgage Loan Purchase Agreement and this Section 2.01(b).
If any of the endorsements referred to in clause (1) of the
definition of "Mortgage File" are delivered to the Trustee in blank, the Trustee
shall be responsible for promptly (and in any event within 45 days of the
Closing Date) completing the related endorsement and if any of the assignments
referred to in clauses (3), (5) and (7) of the definition of "Mortgage File" are
delivered to the Trustee in blank, the related Mortgage Loan Seller shall be
responsible for completing the related assignment, in the name of the Trustee
(in such capacity) and in any event prior to releasing possession thereof.
Notwithstanding anything herein to the contrary, with respect to the documents
referred to in clause (18) of the definition of Mortgage File, the Master
Servicer may hold the original of such document in trust on behalf of the
Trustee in order to draw on such letter of credit and the applicable Mortgage
Loan Seller shall be deemed to have satisfied the delivery requirements of this
Section 2.01(b) by delivering the original of such document to the (x) Master
Servicer in the case of Mortgage Loans sold or originated by GMACCM or (y)
Trustee, in the case of loans sold by GSMC or German American Capital
Corporation, who will certify receipt of such document by the Closing Date and
send a copy of the applicable document to the other party, and the Trustee shall
appoint the Master Servicer as custodian with respect to any such letters of
credit. The applicable Mortgage Loan Seller shall pay any costs of assignment of
such letter of credit required in order for the Master Servicer to draw on such
letter of credit. In the event that the related transfer documents specified in
clause (18) of the definition of Mortgage File are missing because the related
assignment documents have not been completed, the applicable Mortgage Loan
Seller shall take all necessary steps to enable the Master Servicer to draw on
the related letter of credit including, if necessary, drawing on the letter of
credit in its own name pursuant to written instructions from the Master Servicer
and immediately remitting such funds (or causing such funds to be remitted) to
the Master Servicer.
Notwithstanding the above, the related Mortgage Loan Seller
shall handle the processing of the assignment and transfer of the original
letters of credit. The related Mortgage
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Loan Seller shall have up to forty-five (45) days following the Closing Date to
complete such transfer; and provided, further, in the event the Master Servicer
determines to make a draw under any letter of credit prior to the time it has
been assigned and/or transferred to the Trustee on behalf of the Trust Fund or
the Master Servicer, as applicable, then the related Mortgage Loan Seller agrees
to cooperate with the Master Servicer in making any presentation and draw
concerning such letter of credit, on behalf of the Trust Fund (and if necessary
the related Mortgage Loan Seller shall make such draw in its own name pursuant
to the written instructions of the Master Servicer and deliver the proceeds to
the Master Servicer on behalf of the Trust Fund). In the event a draw is not
honored or able to be processed as a result of the transfer process being
incomplete, the related Mortgage Loan Seller shall be liable to the Trust Fund
for all expenses, damages or losses, including, but not limited to reimbursement
of interest charged by the Master Servicer for any Advance made in lieu of such
draw, up to an amount not to exceed the amount of such draw plus Advance
Interest and related expenses resulting from the failure of the draw to occur .
(c) The related Mortgage Loan Seller shall, as to each
Mortgage Loan, at its own expense, promptly (and in any event within 60 days of
the Closing Date) cause to be submitted for recording or filing, as the case may
be, in the appropriate public office for real property records or UCC Financing
Statements, as appropriate, each assignment referred to in clauses (3) and (5)
of the definition of "Mortgage File" and each UCC-2 and UCC-3 referred to in
clause (11)(B) of the definition of "Mortgage File". Each such assignment shall
reflect that it should be returned by the public recording office or the
Mortgage Loan Seller to the Trustee or its designee following recording, and
each such UCC-2 and UCC-3 shall reflect that the file copy thereof should be
returned to the Trustee or its designee following filing. Promptly following
receipt, the Trustee shall, at the expense of the respective Mortgage Loan
Seller, deliver a copy of any such document or instrument to the Master
Servicer. If any such document or instrument is lost or returned to the Trustee
unrecorded or unfiled, as the case may be, because of a defect therein, the
Trustee shall direct the Mortgage Loan Seller, pursuant to the related Mortgage
Loan Purchase Agreement promptly to prepare or cause to be prepared a substitute
therefor or cure such defect, as the case may be and the Mortgage Loan Seller
shall comply with such direction.
(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. Such
documents and records shall be any documents and records that would otherwise be
part of a Servicing File. If the Sub-Servicer shall hold any original documents
and records delivered to it pursuant to this clause (d) then the Sub-Servicer
shall deliver copies thereof to the Master Servicer.
(e) In connection with the Depositor's assignment pursuant
to subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Master Servicer, on or
before the Closing Date, a fully executed original counterpart of each Mortgage
Loan Purchase Agreement and each Supplemental Agreement, as in full force and
effect, without amendment or modification, on the Closing Date.
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(f) In addition to the Depositor's assignment pursuant to
subsection (a), the Depositor, concurrently with the execution and delivery
hereof, hereby assigns to the Trustee without recourse all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in, to and under the Xxxx REMIC Residual Interest, the
Xxxxxxx REMIC Residual Interest, the Central REMIC Residual Interest, the
Gateway REMIC Residual Interest and the Summit REMIC Residual Interest, and the
Trustee shall hold such REMIC Residual Interests on behalf of the
Certificateholder of the Class R-I Certificate. 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. Such REMIC Residual
Interests shall be represented by the same Certificate representing the REMIC I
residual interest and any transfer of the Class R-I Residual Certificate shall
include, and references herein to the Class R-I Certificate shall include, where
appropriate, such REMIC residual interests.
SECTION 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this
Agreement, hereby certifies receipt by it or a Custodian on its behalf, subject
to the provisions of Section 2.01 and the further review provided for in this
Section 2.02, and further subject to any exceptions noted on any exception
report prepared by the Trustee or such Custodian and attached hereto as Schedule
II, of the documents specified in clauses (1), (2), (9), (13) and (18) (other
than the related transfer documents) of the definition of "Mortgage File" with
respect to each Mortgage Loan, of a fully executed original counterpart of each
Mortgage Loan Purchase Agreement and 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.
Further, the Trustee hereby certifies to each of the
Depositor, the Master Servicer, the Special Servicer and each Mortgage Loan
Seller that except as identified in the exception report, which is attached
hereto as Schedule II, without regard to the proviso in the definition of
"Mortgage File", each of the original executed Mortgage Notes and endorsements
as described in clause (1) of the definition of Mortgage File and the documents
or instruments referred to in clauses (2), (9), (13) and (18) (solely with
respect to letters of credit and not the related transfer documents) of the
definition of Mortgage File are in its possession; provided that with respect to
clause (13) of the definition of Mortgage File, the Trustee certification shall
relate only to copies of Ground Leases if any, and, with respect to clause (18)
of the definition of Mortgage File, the Trustee's certification shall relate
only to copies of any letter of credit and transfer documents, if any. With
respect to the schedule of exceptions described in the preceding sentence,
within fifteen (15) Business Days of the Closing Date, with respect to the
documents specified in clauses (2), (9), (13) and (18) (solely with respect to
letters of credit and not the related transfer documents) of the definition of
Mortgage File, the related Mortgage Loan Seller shall cure any
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exception listed therein (for the avoidance of doubt, any deficiencies with
respect to the documents specified in clause (2) resulting solely from a delay
in the return of the related documents from the applicable recording office or
loss of such documents, shall be cured in the time and manner described in
Section 2.01(b)). If such exception is not so cured, the related Mortgage Loan
Seller shall either (x) repurchase the related Mortgage Loan, (y) with respect
to exceptions relating to clause (18) of the definition of "Mortgage File",
deposit with the Master Servicer an amount, to be held in a Special Reserve
Account, equal to the amount of the undelivered letter of credit (in the
alternative, the related Mortgage Loan Seller may deliver to the Master
Servicer, with a copy to the Trustee, a letter of credit for the benefit of the
Master Servicer on behalf of the Trustee and upon the same terms and conditions
as the undelivered letter of credit) which the Master Servicer on behalf of the
Trustee may use (or draw upon, as the case may be) under the same circumstances
and conditions as the Master Servicer would have been entitled to draw on the
undelivered letter of credit, or (z) with respect to any exceptions relating to
clauses (2) and (9), deposit with the Trustee an amount, to be held in trust in
a Special Reserve Account, equal to 25% of the Stated Principal Balance of the
related Mortgage Loan. Any funds or letter of credit deposited pursuant to
clauses (y) and (z) shall be held pursuant to the related Mortgage Loan Purchase
Agreement by the Trustee or the Master Servicer, as applicable, until the
earlier of (i) the date on which the Master Servicer certifies to the Trustee
and the Majority Certificateholder of the Controlling Class that such exception
has been cured (or the Trustee certifies the same to the Majority
Certificateholder of the Controlling Class), at which time such funds or letter
of credit, as applicable, shall be returned to the related Mortgage Loan Seller
and (ii) thirty (30) Business Days after the Closing Date; provided, however,
that if such exception is not cured within such thirty (30) Business Days, (A)
in the case of clause (y), the Master Servicer shall retain the funds or the
letter of credit on deposit in the related Special Reserve Account until such
exception is cured or the Mortgage Loan is repurchased, or (B) in the case of
clause (z), the related Mortgage Loan Seller shall repurchase the related
Mortgage Loan in accordance with the terms and conditions of Section 2.03 or the
related Mortgage Loan Purchase Agreement, at which time such funds shall be
applied to the Purchase Price of the related Mortgage Loan. Any funds or letter
of credit deposited pursuant to clauses (y) or (z) shall be treated as an
"outside reserve fund" for purposes of the REMIC Provisions, and the related
Mortgage Loan Seller shall be treated as the beneficial owner thereof (and any
amounts reimbursed by REMIC I or REMIC II) and shall be taxed on any
reinvestment income with respect to such funds.
(b) Within 60 days of the Closing Date, the Trustee or a
Custodian on its behalf shall review each of the Mortgage Loan documents
delivered or caused to be delivered by the Mortgage Loan Sellers constituting
the Mortgage Files; and, promptly following such review, the Trustee shall
certify in writing in the form attached hereto as Schedule III to each of the
Depositor, the Master Servicer, the Special Servicer, each Certificateholder in
the Controlling Class, each Mortgage Loan Seller and, upon request, any
Certificateholder that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in any exception report annexed thereto as not being
covered by such certification), (i) all documents specified in clauses (1)
through (5), (9), (11), (12), (13) and (18) (in the case of clause (11), without
regard to whether such UCC financing statements were in the possession of the
Mortgage Loan Seller (or its agent)) of the definition of "Mortgage File" are in
its possession or the related Mortgage Loan Seller has otherwise satisfied the
delivery requirements in accordance with Section 2.01(b) and (ii) all
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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 such exceptions are cured, and following the date
which is two years after the Closing Date, annually) to each of the Depositor,
the Master Servicer, the Special Servicer, the Majority Certificateholder of the
Controlling Class and, upon request, any Certificateholder. At any time after
the date which is two years after the Closing Date, the Depositor, the Master
Servicer, the Special Servicer and any Certificateholder may receive, upon
request, an updated exception report (which may be in electronic format).
(c) The Trustee or a Custodian on its behalf shall review
each of the Mortgage Loan documents received thereby subsequent to the Closing
Date; and, on or about the first anniversary of the Closing Date, the Trustee
shall certify in writing in the form attached hereto as Schedule III to each of
the Depositor, the Master Servicer, the Special Servicer, the Majority
Certificateholder of the Controlling Class and each Mortgage Loan Seller that,
as to each Mortgage Loan listed on the Mortgage Loan Schedule (other than any
Mortgage Loan as to which a Liquidation Event has occurred) and except as
specifically identified in any exception report annexed to such certification,
(i) all documents specified in clauses (1) through (5), (9), (11), (12), (13)
and (18) (in the case of clause (11), without regard to whether such UCC
financing statements were in the possession of the Mortgage Loan Seller (or its
agent)) of the definition of "Mortgage File" are in its possession or the
related Mortgage Loan Seller has otherwise satisfied the delivery requirements
in accordance with Section 2.01(b), (ii) it or a Custodian on its behalf has
received either a recorded original of each of the assignments specified in
clause (3) and, insofar as an unrecorded original thereof had been delivered or
caused to be delivered by the related Mortgage Loan Seller, clause (5) of the
definition of "Mortgage File" or a copy of such recorded original certified by
the applicable public recording office or, if such public recording office does
not provide a certified original, the Mortgage Loan Seller to be true and
complete and (iii) all Mortgage Loan documents received by it or any Custodian
have been reviewed by it or by such Custodian on its behalf and (A) appear
regular on their face and relate to such Mortgage Loan, (B) appear to have been
executed (where appropriate) and (C) purport to relate to such Mortgage Loan.
It is acknowledged that neither the Trustee nor any Custodian is under any duty
or obligation (i) to determine whether any of the documents specified in clauses
(6), (7), (8), (10), (14), (15), (16), (17) and (19) of the definition of
"Mortgage File" exist or are required to be delivered by the Depositor, any
Mortgage Loan Seller or any other Person or (ii) to inspect, review or
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examine any of the documents, instruments, certificates or other papers relating
to the Mortgage Loans delivered to it to determine that the same are genuine,
enforceable, in recordable form or appropriate for the represented purpose or
that they are other than what they purport to be on their face. Further, with
respect to the documents described in clause (11) of the definition of "Mortgage
File", absent actual knowledge to the contrary or copies of UCC Financing
Statements delivered to the Trustee as part of the Mortgage File indicating
otherwise, the Trustee may assume, for the purposes of certification and
recordation delivered in Section 2.02(b), that the related Mortgage File should
include one UCC Financing Statement filed in the office designated for the
filing in the state of incorporation for the Mortgagor of the Mortgage on the
related Mortgaged Property. The UCC Financing Statements will be delivered on
the new national filing forms, in recordable form and will be filed in the
relevant central office of such state as referred to herein or on the face of
such documents.
(d) If, in the process of reviewing the Mortgage Files or at
any time thereafter, the Trustee or any Custodian finds (or, if at any time, any
other party hereto finds) any document or documents constituting a part of a
Mortgage File to have not been properly executed or, subject to Section 2.01(b),
to have not been delivered, to contain information that does not conform in any
material respect with the corresponding information set forth in the Mortgage
Loan Schedule, or to be defective on its face (each, a "Document Defect" in the
related Mortgage File) the Trustee (or such other party) shall promptly so
notify each of the other parties hereto and the related Mortgage Loan Seller. If
and when notified of any error in the Mortgage Loan Schedule, the Depositor
shall promptly correct such error and distribute a new, corrected Mortgage Loan
Schedule to each of the other parties hereto, and upon receipt by the Trustee of
such a corrected Mortgage Loan Schedule so identified, such new, corrected
Mortgage Loan Schedule shall be deemed to amend and replace the existing
Mortgage Loan Schedule for all purposes.
(e) The Master Servicer may establish one or more Special
Reserve Accounts, each of which shall be an Eligible Account, and the Master
Servicer or its designee shall deposit any amount required to be deposited in a
Special Reserve Account within two Business Days of receipt. The Trustee may
also establish one or more Special Reserve Accounts, each of which shall be an
Eligible Account, and the Trustee or its designee shall deposit any amount
required to be deposited in a Special Reserve Account within two Business Days
of receipt. The related Mortgage Loan Seller may direct the Master Servicer or
Trustee, as applicable, to invest or cause the investment of the funds deposited
in the Special Reserve Account in one or more Permitted Investments that bear
interest or are sold at a discount and that mature, unless payable on demand, no
later than the Business Day prior to the next Delinquency Advance Date. The
Master Servicer or the Trustee, as applicable, shall act upon the written
instructions of the Mortgage Loan Seller with respect to the investment of the
funds in the Special Reserve Account in such Permitted Investments, provided
that in the absence of appropriate and timely written instructions from the
related Mortgage Loan Seller, neither the Master Servicer nor the Trustee shall
invest or direct the investment of funds in such Special Reserve Account. All
income and gain realized from the investment of funds deposited in such Special
Reserve Account shall be for the benefit of the related Mortgage Loan Seller
(which shall be taxable with respect thereto) and shall be withdrawn by the
Master Servicer, the Trustee or their designees and remitted to the related
Mortgage Loan Seller on each Delinquency Advance Date (net of any losses
incurred), and the related Mortgage Loan Seller shall remit to the Master
Servicer or the Trustee from the
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related Mortgage Loan Seller's own funds for deposit into such Special Reserve
Account the amount of any Net Investment Loss (net of Net Investment Earnings)
in respect of such Permitted Investments immediately upon realization of such
Net Investment Losses and receipt of written notice thereof from the Master
Servicer or the Trustee, as applicable.
SECTION 2.03 Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Document Defects in Mortgage Files and
Breaches of Representations and Warranties.
(a) If the Trustee discovers or receives notice of a
Document Defect in any Mortgage File or a breach of any representation or
warranty set forth in or made pursuant to Section 4(a) of each Mortgage Loan
Purchase Agreement or Section 2(a) of each Supplemental Agreement (a "Breach"),
and if such Document Defect or Breach is a Material Document Defect or Material
Breach, as the case may be, the Trustee shall give prompt written notice of such
Material Document Defect, or Material Breach, as the case may be, to the
Depositor, the Master Servicer, the Special Servicer, the Majority
Certificateholder of the Controlling Class, the Rating Agencies and the related
Mortgage Loan Seller (and GMACCM, in the case of such a Material Document Defect
or Material Breach under a Supplemental Agreement). The Special Servicer shall,
and the Trustee and Master Servicer may (provided that if the applicable
Mortgage Loan Seller is an Affiliate of the Special Servicer, the Trustee shall
pursue such action in consultation with the Majority Certificateholder of the
Controlling Class), request in writing (with a copy to the other parties hereto,
the Rating Agencies and the Majority Certificateholder of the Controlling Class)
that the applicable Mortgage Loan Seller, not later than ninety (90) days from
receipt of such written request, and the applicable Mortgage Loan Seller shall,
(i) cure such Material Document Defect or Material Breach, as the case may be,
in all material respects, (ii) repurchase the affected Mortgage Loan at the
Purchase Price, (iii) within two years of the Closing Date, substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan and pay the
Master Servicer for deposit into the Certificate Account any Substitution
Shortfall Amount in connection therewith, or (iv) at the sole discretion of the
Majority Certificateholder of the Controlling Class (so long as the Majority
Certificateholder of the Controlling Class is not the related Mortgage Loan
Seller or an Affiliate thereof), provide to the Master Servicer a letter of
credit or deposit in a Special Reserve Account an amount equal to 25% of the
Stated Principal Balance of any Mortgage Loan for which certain types of
Material Document Defects relating to delay in the return of documents from
local filing or recording offices remaining uncorrected for 18 months following
the Closing Date as provided in Section 2.02(a); provided, however, that if such
Material Document Defect or Material Breach is capable of being cured but not
cured within such ninety (90) day period (the "Initial Resolution Period"), such
Material Document Defect or Material Breach does not relate to the Mortgage Loan
not being treated as a "qualified mortgage" within the meaning of the REMIC
Provisions and the applicable Mortgage Loan Seller has commenced and is
diligently proceeding with the cure of such Material Document Defect or Material
Breach within such ninety (90) day period, the applicable Mortgage Loan Seller
shall have (x) with respect to any such Material Breach, an additional period
equal to the applicable Resolution Extension Period (and shall give notice to
the Trustee that it is using such additional period) to complete such cure (or,
failing such cure, to repurchase the related Mortgage Loan (or
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related REO Loan) or substitute a Qualified Substitute Mortgage Loan) and (y)
with respect to any such Material Document Defect, the applicable Resolution
Extension Period to complete such cure (or, failing such cure, to repurchase the
related Mortgage Loan (or related REO Loan) or substitute a Qualified Substitute
Mortgage Loan) or as described in clause (iv) above, provide a letter of credit
or deposit the requisite amount in the Special Reserve Account; and provided,
further, with respect to such Resolution Extension Period, the applicable
Mortgage Loan Seller shall have delivered an officer's certificate to the
Trustee setting forth the reasons such Material Document Defect or Material
Breach is not capable of being cured within the initial ninety (90) day period
and what actions the applicable Mortgage Loan Seller is pursuing in connection
with the cure thereof and stating that the applicable Mortgage Loan Seller
anticipates such Material Document Defect or Material Breach will be cured
within the Resolution Extension Period. If the affected Mortgage Loan is to be
repurchased or substituted, the Master Servicer shall designate the Certificate
Account as the account to which funds in the amount of the Purchase Price or the
Substitution Shortfall Amount, as applicable, are to be wired. Any such
repurchase or substitution of a Mortgage Loan shall be on a whole loan,
servicing released basis.
Notwithstanding the foregoing, if (x) there exists a Breach of any
representation or warranty on the part of a Mortgage Loan Seller as set forth
in, or made pursuant to, Exhibit B, clauses 23, 28, 29 and 32 of the related
Mortgage Loan Purchase Agreement relating to fees and expenses payable by the
Mortgagor associated with the exercise of a defeasance option, a waiver of a
"due on sale" provision or a "due on encumbrance" provision or the release of
any Mortgaged Property, and (y) the related Mortgage Loan documents specifically
prohibit the Master Servicer or Special Servicer from requiring the related
Mortgagor to pay such fees and expenses, then, upon notice by the Master
Servicer or Special Servicer, the related Mortgage Loan Seller shall transfer to
the Collection Account, within 90 days of such Mortgage Loan Seller's receipt of
such notice, the amount of any such fees and expenses borne by the Trust Fund
that are the basis of such Breach. Upon its making such deposit, the related
Mortgage Loan Seller shall be deemed to have cured such Breach in all respects.
Provided such payment is made, this paragraph describes the sole remedy
available to the Certificateholders and the Trustee on their behalf regarding
any such Breach, regardless of whether it constitutes a Material Breach, and the
related Mortgage Loan Seller shall not be obligated to repurchase or otherwise
cure such Breach.
If a repurchase obligation arises for any Mortgage Loan such obligation
shall extend to, and the related Mortgage Loan Seller shall repurchase, any
related Cross-Collateralized Mortgage Loan; provided, that with respect to any
Mortgage Loan the Mortgage Loan Seller shall not be required to repurchase or
substitute for the affected Mortgage Loan for which the repurchase obligation
has arisen, or all of the related Cross-Collateralized Mortgage Loans, if the
Breach or Document Defect relates solely to one Mortgaged Property and if the
affected Mortgaged Property may be released pursuant to the specific terms of
any partial release provisions in the related Mortgage Loan documents and the
remaining Mortgaged Property(ies) satisfies the requirements, if any, set forth
in the Mortgage(s) for the Mortgaged Property(ies) remaining after application
of the partial release provisions or, in the alternative, at the sole discretion
of the Majority Certificateholder of the Controlling Class (so long as the
Majority Certificateholder of the Controlling Class is not the related Mortgage
Loan Seller or an Affiliate thereof), if the credit of the remaining Mortgage
Loans comprising the related pool of Cross-Collateralized Mortgage Loans shall
be reasonably acceptable; provided, however, that in connection with a partial
release, the related Mortgage Loan Seller shall obtain an Opinion of Counsel (at
such Mortgage Loan Seller's expense) to the effect that the contemplated action
will
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not, with respect to REMIC I, REMIC II or REMIC III, adversely affect REMIC
status and, unless such party determines in its sole discretion to indemnify the
Trust Fund on an after-tax basis with respect to any prohibited transaction; and
provided further, that if (i) the Debt Service Coverage Ratio of the remaining
Mortgaged Properties is less than the Debt Service Coverage Ratio of all such
Mortgaged Properties prior to the release, or (ii) the Loan-to-Value Ratio of
the remaining Mortgaged Properties is greater than the Loan-to-Value Ratio of
all such Mortgaged Properties prior to the release, Rating Agency Confirmation
shall be required.
As to any Qualifying Substitute Mortgage Loan or Loans, the Trustee
shall direct the related Mortgage Loan Seller (or GMACCM, in the case of such a
Document Defect, Breach or event under the related Supplemental Agreement) to
deliver to the Trustee for such Qualifying Substitute Mortgage Loan or Loans
(with a copy to the Master Servicer), the related Mortgage File(s) with the
related Mortgage Note(s) endorsed as required by clause (1) of the definition of
"Mortgage File". No substitution may be made in any calendar month after the
Determination Date for such month. Monthly Payments due with respect to
Qualifying Substitute Mortgage Loans in the month of substitution shall not be
part of the Trust Fund and will be retained by Master Servicer and remitted by
the Master Servicer to the related Mortgage Loan Seller (or GMACCM, in the case
of such a Document Defect, Breach or event under the related Supplemental
Agreement) on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the Monthly
Payment due on the related Deleted Mortgage Loan for such month and thereafter
the related Mortgage Loan Seller (or GMACCM, in the case of such a Document
Defect, Breach or event under the related Supplemental Agreement) shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan.
In any month in which the related Mortgage Loan Seller (or
GMACCM under the related Supplemental Agreement) substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the applicable Substitution Shortfall Amount. The
Trustee shall direct the related Mortgage Loan Seller (or GMACCM, as applicable)
to deposit cash equal to such amount into the Certificate Account concurrently
with the delivery of the Mortgage File(s) for the Qualifying Substitute Mortgage
Loan(s), without any reimbursement thereof. The Trustee shall also direct the
related Mortgage Loan Seller (or GMACCM, as applicable) to give written notice
to the Trustee and the Master Servicer of such deposit, accompanied by an
Officer's Certificate as to the calculation of the applicable Substitution
Shortfall Amount. The Trustee shall direct the related Mortgage Loan Seller (or
GMACCM, as applicable) to amend the Mortgage Loan Schedule to reflect the
removal of each Deleted Mortgage Loan and, if applicable, the substitution of
the Qualifying Substitute Mortgage Loan(s); and, upon such amendment, the
Trustee shall deliver or cause the delivery of such amended Mortgage Loan
Schedule to the other parties hereto. Upon any such substitution, the Qualifying
Substitute Mortgage Loan(s) shall be subject to the terms of this Agreement in
all respects.
(b) In connection with any repurchase or substitution of one
or more Mortgage Loans contemplated by this Section 2.03, upon receipt of a
Request for Release (in the form of Exhibit D attached hereto) of a Servicing
Officer of the Master Servicer certifying as to the receipt of the applicable
Purchase Price(s) in the Certificate Account (in the case of any such
repurchase) or the receipt of the applicable Substitution Shortfall Amount(s) in
the Certificate
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Account and upon the delivery of the Mortgage File(s) and the Servicing File(s)
for the related Qualified Substitute Mortgage Loan(s) to the Master Servicer (in
the case of any such substitution), (i) the Trustee shall promptly execute and
deliver such endorsements and assignments as are provided to it, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the applicable Mortgage Loan Seller the legal and beneficial ownership of each
repurchased Mortgage Loan or Deleted Mortgage Loan, as applicable, being
released pursuant to this Section 2.03, and (ii) the Trustee, the Master
Servicer and the Special Servicer shall each tender promptly to the applicable
Mortgage Loan Seller, upon delivery to each of them of a receipt executed by the
applicable Mortgage Loan Seller, all portions of the Mortgage File and other
documents pertaining to each such Mortgage Loan possessed by it and the Master
Servicer and the Special Servicer shall release or cause to be released to the
applicable Mortgage Loan Seller any Escrow Payments and Reserve Funds held by it
in respect of such repurchased or Deleted Mortgage Loan; provided that any such
tender by the Trustee shall be conditioned upon its receipt from the Master
Servicer or the Special Servicer of a Request for Release.
Thereafter, the Trustee, the Master Servicer and the Special
Servicer shall have no further responsibility with regard to the related
repurchased Mortgage Loan(s) or Deleted Mortgage Loan(s), as applicable, and the
related Mortgage File(s) and Servicing File(s). The Master Servicer shall, and
is hereby authorized and empowered by the Trustee to, prepare, execute and
deliver in its own name, on behalf of the Certificateholders and the Trustee or
any of them, the endorsements and assignments contemplated by this Section 2.03,
and the Trustee shall execute any powers of attorney that are prepared and
delivered to the Trustee by the Master Servicer and are necessary to permit the
Master Servicer to do so. At the time a substitution is made, the related
Mortgage Loan Purchase Agreement or Supplemental Agreement, as applicable, will
provide that the Mortgage Loan Seller shall deliver the related Mortgage File to
the Trustee and certify that the substitute Mortgage Loan is a Qualified
Substitute Mortgage Loan.
(c) The provisions of this Article II provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Document Defect in a Mortgage File
or any Material Breach of any representation or warranty set forth in or
required to be made pursuant to Section 4(a) of the applicable Mortgage Loan
Purchase Agreement or Section 2(a) of the applicable Supplemental Agreement.
(d) The Trustee with the cooperation of the Special Servicer
(in the case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of each Mortgage Loan Seller under
Section 6 of the related Mortgage Loan Purchase Agreement and the obligations of
GMACCM under Section 4 of the related Supplemental Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, shall be carried
out in such form, to such extent and at such time as the Trustee would require
were it, in its individual capacity, the owner of the affected Mortgage Loan(s).
The Trustee shall be reimbursed for the reasonable costs of such enforcement,
together with interest thereon at the Reimbursement Rate: first, from a specific
recovery of costs, expenses or attorneys' fees against the related Mortgage Loan
Seller (or GMACCM, in the case of enforcement under the related 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
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conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to Section
3.05(a)(xi) out of general collections on the Mortgage Loans on deposit in the
Certificate Account.
(e) Subject to the applicable time periods for cure,
substitution, repurchase or other remedy provided in this Agreement, if the
applicable Mortgage Loan Seller contests a repurchase claim for a Material
Breach or Material Document Defect and the Special Servicer determines that it
is in the best interest of the Certificateholders to proceed with a liquidation
or workout (any modification pursuant to which shall not constitute a defense
against a repurchase) of a Mortgage Loan that is in default while pursuing a
repurchase claim, provided that any such action is consistent with the Servicing
Standard, the Mortgage Loan Seller will be liable for the difference between the
aggregate of all Liquidation Proceeds, Insurance Proceeds, net REO Revenues and
all other amounts previously received from the liquidation of, or otherwise in
respect of, such Mortgage Loan and the Purchase Price to the extent the
repurchase claim is successful.
SECTION 2.04 Issuance of Class R-I Certificates; Creation of
REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder and the
Trustee has executed, and caused the Certificate Registrar to authenticate and
deliver, to or upon the order of the Depositor, the Class R-I Certificates in
authorized denominations. The interests evidenced by the Class R-I Certificates,
together with the REMIC I Regular Interests, constitute the entire beneficial
ownership of REMIC I. The rights of the Class R-I Certificateholders and REMIC
II to receive distributions from the proceeds of REMIC I in respect of the Class
R-I Certificates and the REMIC I Regular Interests, respectively, and all
ownership interests of the Class R-I Certificateholders and REMIC II in and to
such distributions, shall be as set forth in this Agreement.
SECTION 2.05 Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Class R-II Certificateholders
and REMIC III as holder of the REMIC II Regular Interests. The Trustee
acknowledges the assignment to it of the REMIC I Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future Class R-II Certificateholders and REMIC III as the
holder of the REMIC II Regular Interests.
SECTION 2.06 Issuance of Class R-II Certificates; Creation of
REMIC II Regular Interest.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of the Depositor,
the REMIC II Regular Interests have been issued hereunder and the Trustee has
executed, and caused the Certificate
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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 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
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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 direct the
Master Servicer to make Servicing Advances, (E) the right of the Master Servicer
(or any Affiliate thereof) or the Special Servicer (or any Affiliate thereof),
as the case may be, to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction and (F) the obligation of GMACCM to repurchase Mortgage Loans
pursuant to Section 4(b) of the related Supplemental Agreement (the conditions
set forth in the immediately foregoing clauses (i), (ii) and (iii), the
"Servicing Standard"). Without limiting the generality of the foregoing, each of
the Master Servicer and the Special Servicer, in its own name, in connection
with its servicing and administrative duties hereunder is hereby authorized and
empowered by the Trustee, to exercise efforts consistent with the foregoing
standard and to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them, any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; subject to Section
3.21, any and all modifications, waivers, amendments or consents to or with
respect to any documents contained in the related Mortgage File; and any and all
instruments of satisfaction or cancellation, or of full release or discharge,
and all other comparable instruments, with respect to the Mortgage Loans and the
Mortgaged Properties. Each of the Master Servicer and the Special Servicer is
also authorized to approve a request by a Mortgagor under a Mortgage Loan that
it is obligated to service and administer pursuant to this Agreement, for an
easement, consent to alteration or demolition, and for other similar matters,
provided that the Master Servicer or the Special Servicer, as the case may be,
determines, exercising its good faith business judgment and in accordance with
the Servicing Standard, that such approval will not affect the security for, or
the timely and full collectability of, the related Mortgage Loan. Subject to
Section 3.10, the Trustee shall furnish, or cause to be furnished, to the Master
Servicer and the Special Servicer any powers of attorney and other documents
necessary or appropriate to enable the Master Servicer or the Special Servicer,
as the case may be, to carry out its servicing and administrative duties
hereunder; provided, however, that the Trustee shall not be held liable, and
shall be indemnified by the Master Servicer or the Special Servicer, as
applicable, for any negligence with respect to, or willful misuse of, any such
power of attorney by the Master Servicer or the Special Servicer, as the case
may be; and further provided that neither the Master Servicer nor the Special
Servicer, without the written consent of the Trustee, shall initiate any action
in the name of the Trustee, without indicating its representative capacity or
cause the Trustee to be registered to do business in any state.
(b) Subject to Section 3.01(a) and Section 3.24(f) (taking
account of Section 3.24(g)), the Master Servicer and the Special Servicer each
shall have full power and authority, acting alone or, subject to Section 3.23,
through Sub-Servicers, to do or cause to be done any and
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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 in each case 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 Fiscal Agent, the Trustee and the Master Servicer,
in that order, as applicable, for any unreimbursed Servicing Advances made
thereby to cover any of the items described in the immediately preceding clause
(i); (iii) refund to the related Mortgagor any sums as may be determined to be
overages; (iv) pay interest, if required and as described below, to the related
Mortgagor on balances in the Servicing Account (or, if and to the extent not
payable to the related Mortgagor, to pay such interest to the Master Servicer or
Special Servicer, as applicable); (v) disburse Insurance Proceeds if required to
be applied to the repair or restoration of the related
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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.
(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
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remediation, replacements and/or capital improvements have been completed, and
such withdrawals are made, in accordance with the Servicing Standard and the
terms of the related Mortgage Note, Mortgage and any agreement with the related
Mortgagor governing such Reserve Funds. Subject to the terms of the related
Mortgage Note and Mortgage, all Reserve Accounts shall be Eligible Accounts. As
part of its servicing duties, the Master Servicer and the Special Servicer shall
pay or cause to be paid to the Mortgagors interest on funds in the Reserve
Accounts maintained thereby, to the extent required by applicable law or the
terms of the related Mortgage Loan. The Reserve Accounts shall not be considered
part of the segregated pool of assets comprising REMIC I, REMIC II, REMIC III or
the Grantor Trust.
SECTION 3.04 Certificate Account, Distribution Account and
Interest Reserve Account.
(a) The Master Servicer shall establish and maintain a
Certificate Account that shall be held in the name of the Master Servicer on
behalf of the Certificateholders. The Master Servicer shall deposit or cause to
be deposited into the Certificate Account on a daily basis, except as otherwise
specifically provided herein, the following payments and collections received or
made by or on behalf of it subsequent to the Cut-off Date (other than in respect
of principal and interest on the Mortgage Loans due and payable on or before the
Cut-off Date), and payments (other than Principal Prepayments) received by it on
or prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including
Principal Prepayments, on the Mortgage Loans;
(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 any REO Property (other than Excess
Liquidation Proceeds and Liquidation Proceeds that are received in connection
with the Master Servicer's or the Depositor's purchase of all the Mortgage Loans
and any REO Properties in the Trust Fund and that are to be deposited in the
Distribution Account pursuant to Section 9.01) and any Borrower Recoveries;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds relating to the Trust Fund held in the
Certificate Account;
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(vi) that portion of each Delinquency Advance that
represents (without duplication) the Servicing Fee; and
(vii) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection with
losses resulting from a deductible clause in a blanket hazard policy.
The foregoing requirements for deposit in the Certificate
Account shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, actual payments from Mortgagors in the
nature of Escrow Payments, Reserve Funds, charges for beneficiary statements or
demands, assumption fees, amounts collected for mortgagor checks returned for
insufficient funds, ancillary fees and any other amounts that the Master
Servicer and the Special Servicer are entitled to as additional servicing
compensation pursuant to Section 3.11 need not be deposited by the Master
Servicer in the Certificate Account. If the Master Servicer shall deposit in the
Certificate Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Certificate Account, any provision herein
to the contrary notwithstanding. The Master Servicer shall promptly deliver to
the Special Servicer, as additional servicing compensation in accordance with
Section 3.11(d), all assumption fees, modification fees, ancillary fees and
other transaction fees due to and received by the Master Servicer with respect
to Specially Serviced Mortgage Loans. The Certificate Account shall be
maintained as a segregated account, separate and apart from trust funds created
for mortgage pass-through certificates of other series serviced and the other
accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i),
(ii) and (iv) above with respect to any Mortgage Loan which is not an REO Loan,
the Special Servicer shall promptly, but in no event later than two Business
Days after receipt, remit such amounts to the Master Servicer for deposit into
the Certificate Account in accordance with the second preceding paragraph,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item should not be deposited because of a restrictive
endorsement or other appropriate reason. Any such amounts received by the
Special Servicer with respect to an REO Property shall be deposited by the
Special Servicer into the REO Account and remitted to the Master Servicer for
deposit into the Certificate Account pursuant to Section 3.16(c). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse such check to the order of the Master Servicer
and shall deliver promptly, but in no event later than two Business Days after
receipt, any such check to the Master Servicer by overnight courier, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item cannot be so endorsed and delivered because of a restrictive
endorsement or other appropriate reason.
Funds in the Certificate Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the Trustee, the Special Servicer and the
Depositor of the location of the Certificate Account as of the Closing Date and
of the new location of the Certificate Account prior to any change thereof.
(b) The Trustee shall establish and maintain the Distribution
Account in trust for the benefit of the Certificateholders. The Distribution
Account shall be maintained as a
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segregated account, separate and apart from trust funds for mortgage
pass-through certificates of other series administered by the Trustee and other
accounts of the Trustee.
The Master Servicer shall deliver to the Trustee each month on
or before the Master Servicer Remittance Date therein, for deposit in the
Distribution Account, that portion of the Available Distribution Amount
(calculated without regard to clauses (b)(iii) or (b)(iv) of the definition
thereof) for the related Distribution Date then on deposit in the Certificate
Account and the Trustee Fee collected with respect to each Mortgage Loan.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account:
(i) any Delinquency Advances required to be made by the
Master Servicer in accordance with Section 4.03 (in each case, net of the
portion thereof that represents Servicing Fees and/or Special Servicing Fees,
which is to be deposited in the Certificate Account);
(ii) any Compensating Interest Payments required to be
made by the Master Servicer pursuant to Section 3.20;
(iii) any Liquidation Proceeds paid by the Master
Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor in connection with the purchase of all of the Mortgage Loans and any
REO Properties in the Trust Fund pursuant to Section 9.01 (exclusive of that
portion thereof required to be deposited in the Certificate Account pursuant to
Section 9.01); and
(iv) any other amounts required to be so delivered for
deposit in the Distribution Account pursuant to any provision of this Agreement.
(c) The Trustee shall, upon receipt, deposit in the Distribution
Account any and all amounts received by the Trustee that are required by the
terms of this Agreement to be deposited therein. If, as of 3:00 p.m., New York
City time, on any Master Servicer Remittance Date or on such other date as any
amount is required to be delivered for deposit in the Distribution Account, the
Master Servicer shall not have delivered to the Trustee for deposit in the
Distribution Account the relevant portion of the Available Distribution Amount,
or any of the other amounts required to be deposited therein, then the Trustee
shall provide notice of such failure to a Servicing Officer of the Master
Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such
alternative number provided by the Master Servicer to the Trustee in writing)
and by telephone at telephone no. (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) as soon as possible,
but in any event before 5:00 p.m., New York City time, on such day. To the
extent the Master Servicer has not delivered to the Trustee for deposit in the
Distribution Account such amounts as are required to be delivered on the Master
Servicer Remittance Date, the Master Servicer shall pay interest thereon to the
Trustee at an interest rate equal to the Reimbursement Rate then in effect for
the period from and including the Master Servicer Remittance Date to and
excluding the date such amounts are deposited.
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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.
(d) The Trustee shall establish (upon an event occurring that
generates Excess Liquidation Proceeds) and maintain the Excess Liquidation
Proceeds Reserve Account in trust for the benefit of the Certificateholders. The
Excess Liquidation Proceeds Reserve Account shall be maintained as a segregated
account, separate and apart from trust funds for mortgage pass-through
certificates of other series administered by the Trustee and other accounts of
the Trustee. Funds in the Excess Liquidation Proceeds Reserve Account may be
invested by the Trustee in Permitted Investments in accordance with the
provisions of Section 3.06 and the Trustee shall be required to deposit an
amount equal to the Net Investment Loss, if any, in such account, all as
provided in accordance with the provisions of Section 3.06.
Upon the disposition of any REO Property in accordance with
Section 3.19, the Special Servicer will calculate the Excess Liquidation
Proceeds, if any, realized in connection with such sale and deposit such amount
in the Excess Liquidation Proceeds Reserve Account.
(e) The Trustee shall establish and maintain the Interest
Reserve Account in trust for the benefit of the Certificateholders. The Interest
Reserve Account shall be maintained as a segregated account, separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Trustee and other accounts of the Trustee. Funds in the
Interest Reserve Account may be invested in Permitted Investments in accordance
with the provisions of Section 3.06 and the Trustee shall be required to deposit
an amount equal to the Net Investment Loss, if any, in such account, all as
provided in accordance with the provisions of Section 3.06.
On each Master Servicer Remittance Date occurring in (i) January
of each calendar year that is not a leap year and (ii) February of each calendar
year, the Trustee shall calculate the Withheld Amount with respect to each
Interest Reserve Loan. On each such Master Servicer Remittance Date, the Trustee
shall withdraw from the Distribution Account and deposit in the Interest Reserve
Account an amount equal to the aggregate of the Withheld Amounts calculated in
accordance with the previous sentence. If the Trustee shall deposit in the
Interest Reserve Account any amount not required to be deposited therein, it may
at any time withdraw such amount from the Interest Reserve Account, any
provision herein to the contrary notwithstanding. On or prior to the Master
Servicer Remittance Date in March of each calendar year, the Trustee shall
transfer to the Distribution Account the aggregate of all Withheld Amounts on
deposit in the Interest Reserve Account.
SECTION 3.05 Permitted Withdrawals From the Certificate Account,
the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Reserve Account.
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(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes:
(i) to remit to the Trustee for deposit in the
Distribution Account the amounts required to be remitted pursuant to the second
paragraph of Section 3.04(b) or that may be applied to make Delinquency Advances
pursuant to Section 4.03(a);
(ii) to pay itself unpaid Servicing Fees payable to
itself earned thereby in respect of each Mortgage Loan and related REO Loan, the
Master Servicer's rights to payment pursuant to this clause (ii) being limited
to amounts received or advanced on or in respect of such Mortgage Loan or such
REO Loan that are allocable as a recovery or advance of interest thereon;
(iii) to pay to the Special Servicer, out of general
collections on the Mortgage Loans and any related REO Properties, earned and
unpaid Special Servicing Fees in respect of any Mortgage Loan that is a
Specially Serviced Mortgage Loan or REO Loan;
(iv) to pay to the Special Servicer earned and unpaid
Workout Fees and Liquidation Fees with respect to the Mortgage Loans to which it
is entitled pursuant to, and from the sources contemplated by, Section 3.11(c);
(v) to reimburse the Fiscal Agent, the Trustee and
itself, in that order, as applicable, for unreimbursed Delinquency Advances made
thereby, the Master Servicer's, the Fiscal Agent'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 Fiscal Agent, the Trustee and
itself, in that order, as applicable, for unreimbursed Servicing Advances made
thereby, the Master Servicer's, the Trustee's or the Fiscal Agent's respective
rights to be reimbursed pursuant to this clause (vi) with respect to any
Mortgage Loan or REO Property being limited to, as applicable, related payments,
Liquidation Proceeds, Insurance Proceeds and REO Revenues attributable to such
Mortgage Loan;
(vii) to reimburse the Fiscal Agent, the Trustee, itself
and the Special Servicer, in that order, as applicable, out of general
collections on the Mortgage Loans and related REO Properties, for Nonrecoverable
Advances made thereby;
(viii) to pay the Fiscal Agent, the Trustee, itself or
the Special Servicer, in that order as the case may be, any related Advance
Interest accrued and payable on any unreimbursed Advance in accordance with
Section 3.11(f) and 4.03(d), first out of Penalty Charges received on the
Mortgage Loan or REO Loan as to which such Advance was made and then, at or
following such time as it reimburses the Fiscal Agent, the Trustee, itself and
the Special Servicer, in that order, as applicable, for such Advance pursuant to
clause (v), (vi) or (vii) above or Section 3.03, out of general collections on
the Mortgage Loans and related REO Properties;
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(ix) to reimburse itself (if it is not the affected
Mortgage Loan Seller) or the Trustee, as the case may be, for any unreimbursed
expenses reasonably incurred by such Person in respect of any Breach or Document
Defect giving rise to a repurchase obligation of a Mortgage Loan Seller under
Section 6 of the related Mortgage Loan Purchase Agreement (or Section 4 of the
related Supplemental Agreement), including, without limitation, any expenses
arising out of the enforcement of the repurchase obligation, together with
interest thereon at the Reimbursement Rate, each such Person's right to
reimbursement pursuant to this clause (ix) with respect to any Mortgage Loan
being limited to that portion of the Purchase Price paid for such Mortgage Loan
that represents such expense in accordance with clause (d) of the definition of
Purchase Price;
(x) in accordance with Section 2.03(d), to reimburse the
Trustee, out of general collections on the Mortgage Loans and related REO
Properties for any unreimbursed expense reasonably incurred by the Trustee in
connection with the enforcement of a Mortgage Loan Seller's obligations under
Section 6(a) of the related Mortgage Loan Purchase Agreement (or Section 4 of
the related Supplemental Agreement), together with interest thereon at the
Reimbursement Rate, but only to the extent that such expenses are not
reimbursable pursuant to clause (ix) above or otherwise;
(xi) to pay out of general collections on the Mortgage
Loans and related REO Properties, for costs and expenses incurred by the Trust
Fund with respect to the Mortgage Loans and related REO Properties pursuant to
Section 3.09(c) and to pay Liquidation Expenses out of related Liquidation
Proceeds pursuant to Section 3.09;
(xii) to pay itself, as additional servicing
compensation in accordance with Section 3.11(b), (A) interest and investment
income earned in respect of amounts relating to the Trust Fund held in the
Certificate Account, any Lock Box Account and Cash Collateral Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the Certificate Account, any Lock Box Account and Cash
Collateral Account for any Collection Period), (B) Prepayment Interest Excesses
and Balloon Payment Interest Excess received on the Mortgage Loans and (C)
Penalty Charges received on Mortgage Loans that are not Specially Serviced
Mortgage Loans (but only to the extent not otherwise allocable to cover Advance
Interest in respect of the related Mortgage Loan);
(xiii) to pay to the Special Servicer, as additional
servicing compensation, all Penalty Charges received on any Specially Serviced
Mortgage Loan (but only to the extent not otherwise allocable to pay Advance
Interest in respect of the related Specially Serviced Mortgage Loan);
(xiv) to pay itself, the Depositor, or any of their
respective directors, officers, employees and agents, as the case may be, out of
general collections on the Mortgage Loans and REO Properties, any amounts
payable to any such Person pursuant to Section 6.03;
(xv) to pay, out of general collections on the Mortgage
Loans and REO Properties, for (A) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b)(ii) and 3.16(a), (B) the cost of the advice of
counsel contemplated by Section 3.17(a), (C) the cost of any Opinion of Counsel
contemplated by Section 11.01(a) in connection with an amendment to
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this Agreement, which amendment is in furtherance of the rights and interests of
Certificateholders, (D) the cost of obtaining the REO Extension contemplated by
Section 3.16(a), (E) the cost of recording this Agreement in accordance with
Section 11.02(a) and (F) the cost of a new Appraisal obtained pursuant to
Section 3.11(h) or Section 4.03(c);
(xvi) to pay itself, the Special Servicer, any Mortgage
Loan Seller, GMACCM or the Majority Certificateholder of the Controlling Class,
as the case may be, with respect to each Mortgage Loan, if any, previously
purchased by such Person pursuant to or as contemplated by this Agreement, all
amounts received on such Mortgage Loan subsequent to the date of purchase;
(xvii) to withdraw funds deposited into the Certificate
Account in error; and
(xviii) to clear and terminate the Certificate Account
at the termination of this Agreement pursuant to Section 9.01.
For each Mortgage Loan, the Master Servicer shall keep and
maintain separate accounting records, on a loan-by-loan basis (and for each REO
Loan, on a property-by-property basis) when appropriate, for the purpose of
justifying any withdrawal from the Certificate Account.
The Master Servicer shall pay to the Special Servicer (or to
third party contractors at the direction of the Special Servicer) from the
Certificate Account amounts permitted to be paid to it (or to such third party
contractors) therefrom promptly upon receipt of a certificate of a Servicing
Officer of the Special Servicer describing the item and amount to which the
Special Servicer (or such third party contractors) is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Property, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Certificate Account.
(b) The Trustee may, from time to time, make withdrawals from
the Distribution Account for any of the following purposes (but not necessarily
in the following order of priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 and to deposit the Withheld Amounts
in the Interest Reserve Account pursuant to Section 3.04(d);
(ii) to pay itself interest and investment income earned
in respect of amounts relating to the Trust Fund held in the Distribution
Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the Distribution Account for any Collection
Period);
(iii) to pay itself unpaid Trustee Fees pursuant to
Section 8.05(a);
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(iv) to pay itself or the Fiscal Agent or any of their
respective directors, officers, employees and agents, as the case may be, any
amounts payable or reimbursable to any such Person pursuant to Section 8.05(b);
(v) to pay for (A) the cost of the Opinion of Counsel
contemplated by Section 11.01(a) or (c) in connection with any amendment to this
Agreement requested by the Trustee, which amendment is in furtherance of the
rights and interests of Certificateholders, (B) the cost of the Opinion of
Counsel contemplated by Section 11.02(a) in connection with any recordation of
this Agreement and (C) to the extent payable out of the Trust Fund, the cost of
the Opinion of Counsel contemplated by Section 10.01(f);
(vi) to (A) pay any and all federal, state and local
taxes imposed on REMIC I, REMIC II or REMIC III or on the assets or transactions
of any such REMIC, together with all incidental costs and expenses, and any and
all reasonable expenses relating to tax audits, if and to the extent that either
(1) none of the Trustee, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(g) or (2) any such Person that may be so
liable has failed to make the required payment, and (B) reimburse the Trustee
for reasonable expenses incurred by and reimbursable to it by the Trust Fund
pursuant to Section 10.01(c);
(vii) to withdraw funds deposited into the Distribution
Account in error; and
(viii) to clear and terminate the Distribution Account
at the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may, from time to time, make withdrawals from
the Interest Reserve Account to pay itself interest and investment income earned
in respect of amounts relating to the Trust Fund held in the Interest Reserve
Account (but only to the extent of Net Investment Earnings with respect to the
Interest Reserve Account for any Collection Period).
(d) The Trustee shall, on any Distribution Date, make
withdrawals from the Excess Liquidation Proceeds Reserve Account to the extent
required to make the distributions from the Excess Liquidation Proceeds Reserve
Account required by Section 4.01(c).
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 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
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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 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
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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 (to the extent such
insurance coverage is available at commercially reasonable terms as determined
by the Master Servicer or Special Servicer, as applicable, provided that any
such determination that such insurance is not available at commercially
reasonable terms shall be consented to by the Majority Certificateholder of the
Controlling Class); provided that if any Mortgage permits the holder thereof to
dictate to the Mortgagor the insurance coverage to be maintained on such
Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate,
shall impose such insurance requirements as are consistent with the Servicing
Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer
(at the direction of the Special Servicer in the case of a Specially Serviced
Mortgage Loan) shall (to the extent available at commercially reasonable terms
as determined by the Master Servicer, which shall be entitled to rely on an
opinion of counsel or insurance consultants in making such determination,
provided that, subject to the Servicing Standard, such final determination shall
be consented to by the Majority Certificateholder of the Controlling Class)
obtain such insurance (which may be through a master or single interest policy)
and the cost (including any deductible relating to such insurance and any out of
pocket cost incurred by the Master Servicer in obtaining advice of
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counsel or insurance consultants) of such insurance (or in the case of a master
or single interest policy, the incremental cost (including any deductible
relating to such insurance) of such insurance relating to the specific Mortgaged
Property), shall be a Servicing Advance and shall be recoverable by the Master
Servicer pursuant to Section 3.05(a). If at any time a Mortgaged Property is
located in an area identified in the Flood Hazard Boundary Map or Flood
Insurance Rate Map issued by the Federal Emergency Management Agency as having
special flood hazards or it becomes located in such area by virtue of remapping
conducted by such agency (and flood insurance has been made available), the
Master Servicer (or in the case of a Specially Serviced Mortgage Loan, the
Special Servicer) shall, if and to the extent that the Mortgage Loan 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 Mortgage Loan, the Special Servicer) shall obtain such insurance, the
cost of which shall be a Servicing Advance and shall be recoverable by the
Master Servicer pursuant to Section 3.05(a); provided that the Master Servicer
or Special Servicer shall not be required to incur any such cost if such Advance
would constitute a Nonrecoverable Servicing Advance; provided further, if the
Master Servicer or Special Servicer, as applicable, shall determine that the
payment of such amount is (i) necessary to preserve the related Mortgaged
Property and (ii) would be in the best interest of the Certificateholders, then
the Master Servicer shall make such payment from amounts in the Certificate
Account. Subject to Section 3.17(a), the Special Servicer shall also use
reasonable efforts to cause to be maintained for each REO Property (to the
extent available at commercially reasonable terms) no less insurance coverage
than was previously required of the Mortgagor under the related Mortgage or as
is consistent with the Servicing Standard. All such insurance policies shall
contain a "standard" mortgagee clause, with loss payable to the Master Servicer
(in the case of Mortgaged Properties) or the Special Servicer (in the case of
REO Properties) on behalf of the Trustee, and shall be issued by an insurer
authorized under applicable law to issue such insurance. Any amounts collected
by the Master Servicer or the Special Servicer under any such policies (other
than amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Mortgagor, in
each case in accordance with applicable law, the terms of the related Mortgage
Loan 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
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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 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 the 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 the
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
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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 the REO Properties for which it is
responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the
Special Servicer under a policy or bond obtained by an Affiliate of such Person
and providing the coverage required by this Section 3.07(c) shall satisfy the
requirements of this Section 3.07(c).
(d) All insurance coverage required to be maintained by the
Master Servicer or Special Servicer, as applicable, under this Section 3.07
shall be obtained from Qualified Insurers having a claims paying ability rating
(or the obligations of which are guaranteed or backed by a company having such
claims paying ability rating or insurance financial strength rating, as
applicable) of not less than (x) "A" by Standard & Poor's and (y) "A2" by
Xxxxx'x; provided, however, that the requirements of clauses (x) and (y) shall
not be applicable with respect to Standard & Poor's or Xxxxx'x, as applicable,
if the related Rating Agency shall have confirmed in writing that an insurance
company with a lower claims paying ability rating shall not result, in and of
itself, in a downgrade, qualification or withdrawal of the then current ratings
by such Rating Agency of any Class of Certificates.
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing; Defeasance.
(a) As to each Mortgage Loan 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 3.21(a)(iv), waive its right to exercise) any
right it may have with respect to such Mortgage Loan (x) to accelerate the
payments thereon, or (y) to withhold its consent to 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
97
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 3.21(a), if the Special Servicer intends or is required to permit the
transfer of any Mortgaged Property and enter into an assumption agreement or a
substitution of liability agreement, as the case may be, in accordance with the
foregoing, the Special Servicer shall submit to (A) Xxxxx'x, in the case of any
Mortgage Loan (x) that has an outstanding principal balance in excess of the
lesser of (1) $20,000,000 or (2) 5% of the then outstanding principal balance of
the Mortgage Pool or (y) represents one of the 10 largest Mortgage Loans based
on Stated Principal Balance; and (B) Standard & Poor's, in the case of any
Mortgage Loan or any group of Cross-Collateralized Mortgage Loans that has, or
any Mortgage Loan that is part of a Related Borrower Group that has, an
outstanding principal balance in excess of 5% of the then outstanding principal
balance of the Mortgage Pool a copy of such documentation and any information
with respect to such action as the Special Servicer deems appropriate or as such
Rating Agency may reasonably request, and shall obtain Rating Agency
Confirmation from Xxxxx'x (in the case of any Mortgage Loan described in clause
(A) above) and Standard & Poor's (in the case of any Mortgage Loan described in
clause (B) above) prior to executing such assumption agreement or substitution
of liability agreement.
(b) As to each Mortgage Loan 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 3.21(a)(iv), waive its right to exercise) any
right it may have with respect to such Mortgage Loan (x) to accelerate the
payments thereon, or (y) to withhold its consent to the creation of any such
additional lien or other encumbrance, in a manner consistent with the Servicing
Standard; provided, however that the Special Servicer shall not waive its right
to exercise any such right when such right arises as a result of the imposition
of a lien against a Mortgaged Property which lien secures additional
indebtedness or a mechanic's or similar lien not permitted under the related
Mortgage Loan documents unless the Special Servicer shall submit to (A) Xxxxx'x
(in the case of any Mortgage Loan (x) that has an outstanding principal balance
in excess of the lesser of (1) $20,000,000 or (2) 5% of the then outstanding
principal balance of the Mortgage Pool or (y) represents one of the 10 largest
Mortgage Loans based on Stated Principal Balance) 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
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Special Servicer deems appropriate or as such Rating Agency may reasonably
request, and shall obtain Rating Agency Confirmation from Xxxxx'x (in the case
of any Mortgage Loan described in clause (A) above) and Standard & Poor's prior
to waiving any such right.
(c) Notwithstanding the foregoing, the Master Servicer shall not
waive any rights under a "due-on-sale" or "due-on-encumbrance" clause with
respect to any Mortgage Loan unless (i) the Master Servicer shall have notified
the Special Servicer of such waiver, (ii) the Master Servicer shall have
submitted the Master Servicer's written recommendation and analysis to the
Special Servicer, (iii) the Master Servicer shall have submitted to the Special
Servicer the documents within the possession of the Master Servicer that are
reasonably requested by the Special Servicer, (iv) the Special Servicer shall
have approved such waiver, notified the Majority Certificateholder of the
Controlling Class of the request for the waiver and of the Master Servicer's and
its own approval and submitted to the Majority Certificateholder of the
Controlling Class each of the documents submitted to the Special Servicer by the
Master Servicer and (v) the Majority Certificateholder of the Controlling Class
shall have informed the Special Servicer that it has approved such waiver;
provided, however, that the Special Servicer shall advise the Majority
Certificateholder of the Controlling Class of its approval (if any) of such
waiver promptly upon (but in no case to exceed 10 Business Days) its receipt of
such notice, recommendations, analysis, and reasonably requested documents from
the Master Servicer; and, provided, further, that if the Majority
Certificateholder of the Controlling Class does not reject such recommendation
within 5 Business Days of its receipt of the Special Servicer's recommendation
and any additional documents and information that the Majority Certificateholder
of the Controlling Class may reasonably request, then the waiver shall be deemed
approved. Neither the Master Servicer nor the Special Servicer shall approve
such waiver unless the Mortgagor shall agree to pay all fees and costs
associated with such waiver (unless such condition shall have been waived by the
Majority Certificateholder of the Controlling Class or the related Mortgage Loan
Documents specifically preclude this requirement).
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 and permitted by the applicable Mortgage Loan documents, permit
(or, if the terms of such Mortgage Loan permit the lender to require defeasance,
the Master Servicer shall require) the exercise of such Defeasance Option on any
Due Date occurring more than two years after the Startup Day or, in the case of
a Mortgage Loan owned by the Xxxx REMIC, the Xxxxxxx REMIC, the Central REMIC,
the Gateway REMIC or the Summit REMIC, more than two years after the "startup
day" for such REMIC (in each case, the "Release Date"), subject to the following
conditions:
(i) No event of default exists under the related
Mortgage Note;
(ii) The Mortgagor pays on such Release Date (A) all
interest accrued and unpaid on the Principal Balance of the Mortgage Note to and
including the Release Date; (B) all other sums, excluding scheduled interest or
principal payments due under the Mortgage Note and (C) any costs and expenses
incurred in connection with such release;
(iii) The Mortgagor has delivered Defeasance Collateral
providing payments on or prior to all successive scheduled payment dates from
the Release Date to the
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related Maturity Date, and in an amount equal to or greater than the scheduled
payments due on such dates under the applicable Mortgage Loan;
(iv) The Mortgagor shall have delivered a security
agreement granting the Trustee (on behalf of 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 Trustee (on behalf of 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 related borrower shall have provided evidence
to the Master Servicer demonstrating that the lien of the related Mortgage is
being released to facilitate the disposition of the Mortgaged Property or
another customary commercial transaction, and not as part of an arrangement to
collateralize the Certificates issued by the related REMIC with obligations that
are not real estate mortgages;
(ix) If required by the terms of such Mortgage Loan, (A)
the Master Servicer shall have received Rating Agency Confirmation from each of
Xxxxx'x and Standard & Poor's with respect to the exercise of such Defeasance
Option, provided that if the Master Servicer provides Standard & Poor's with the
written certification substantially in the form of Exhibit J attached hereto,
the Master Servicer shall be required to have received such Rating Agency
Confirmation from Standard & Poor's only as to any Mortgage Loan that has an
outstanding principal balance in excess of the lesser of (1) $5,000,000 or (2)
1% of the then outstanding principal balance of the Mortgage Pool, and (B) the
Master Servicer shall have received Rating Agency Confirmation from Xxxxx'x with
respect to the exercise of such Defeasance Option only as to any Mortgage Loan
(x) that has an outstanding principal balance in excess of the lesser of (1)
$20,000,000 or (2) 5% of the then outstanding principal balance of the Mortgage
Pool or (y) represents one of the 10 largest Mortgage Loans based on Stated
Principal Balance; and
(x) if the Defeasance Option is being exercised to
release less than all of the Mortgaged Properties securing either a
Cross-Collateralized Mortgage Loan or a Mortgage Loan secured by multiple
Mortgaged Properties, the related borrower shall have provided evidence
satisfactory to both the Master Servicer and the Special Servicer that
demonstrates compliance with any debt service coverage ratio, loan-to-value
ratio or other financial tests or
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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 3.21, 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 may be, out of the proceeds of liquidation of such
Mortgaged Property, as contemplated in Section 3.05(a). The Master Servicer
shall advance all other costs and expenses incurred by the Special Servicer in
any such proceedings, subject to its being entitled to reimbursement therefor as
a Servicing Advance as provided in Section 3.05(a) and further subject to the
Special Servicer being required to pay out of the related Liquidation Proceeds
any Liquidation Expenses incurred
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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 3.19 and the
results of any Appraisal obtained pursuant to this Agreement, all such bids to
be made in a manner consistent with the Servicing Standard. If and when the
Master Servicer or the Special Servicer deems it necessary and prudent for
purposes of establishing the fair market value of any Mortgaged Property
securing a Defaulted Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, the Master Servicer or the Special Servicer, as the
case may be, is authorized to have an Appraisal performed with respect to such
property (the cost of which Appraisal shall be covered by, and reimbursable as,
an Additional Trust Fund Expense.
(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 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
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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 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, upon request, forward such reports to the Certificateholders) regarding
any actions taken by the Special Servicer with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan as to which the environmental testing
contemplated in subsection (c) above has revealed that either of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof has not been
satisfied, in each case until the earliest to occur of satisfaction of both such
conditions, removal of the related Mortgage Loan from the Trust Fund and release
of the lien of the related Mortgage on such Mortgaged Property.
(f) The Special Servicer shall report to the Internal Revenue
Service and the related Mortgagor, in the manner required by applicable law, the
information required to be reported regarding any Mortgaged Property which is
abandoned or foreclosed, information returns with respect to the receipt of
mortgage interests received in a trade or business and the information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property required by Sections 6050J, 6050H and 6050P, respectively, of the Code.
Such reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050J, 6050H and 6050P of the Code. The Special
Servicer shall deliver a copy of any such report upon request to the Trustee.
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(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 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
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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 each REO Loan. As to each Mortgage Loan and each REO Loan, the
Servicing Fee shall accrue from time to time at the Servicing Fee Rate and shall
be computed on the same basis and the same principal amount respecting which any
related interest payment due on such Mortgage Loan or deemed to be due on such
REO Loan is computed. The Servicing Fee with respect to any Mortgage Loan or any
REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
The Servicing Fee shall be payable monthly, on a loan-by-loan basis, from
payments of interest on each Mortgage Loan, REO Revenues allocable as interest
on each REO Loan and the interest portion of Delinquency Advances on such
Mortgage Loan and REO Loan. The Master Servicer shall be entitled to recover
unpaid Servicing Fees in respect of any Mortgage Loan 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
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
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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 further compensation for its activities hereunder, the
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the Workout
Fee shall be payable from, and shall be calculated by application of the Workout
Fee Rate to, each collection of interest and principal received on such
Corrected Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The
Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable
if a Servicing Transfer Event occurs with respect thereto or if the related
Mortgaged Property becomes an REO Property; provided that a new Workout Fee will
become payable if and when such Mortgage Loan again becomes a Corrected Mortgage
Loan. If the Special Servicer is terminated or resigns in accordance with
Section 6.04, it shall retain the right to receive any and all Workout Fees
payable in respect of (i) any Mortgage Loan that became a Corrected Mortgage
Loan during the period that it acted as Special Servicer and were still such at
the time of such termination or resignation and (ii) any Specially Serviced
Mortgage Loan for which the Special Servicer has resolved the circumstances
and/or conditions causing any such Mortgage Loan to be a Specially Serviced
Mortgage Loan such that the related Mortgagor has made at least one timely
Monthly Payment as of the date of such termination or resignation and such
Mortgage Loan otherwise meets the requirements of a Corrected Mortgage Loan,
with the Workout Fee with respect to such Mortgage Loan payable only after such
requirements have been met (including the requirement that three payments be
made) (and any successor Special Servicer shall not be entitled to any portion
of such Workout Fees), in each case until the Workout Fee for any such loan
ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the
Special Servicer shall also be entitled to receive a Liquidation Fee with
respect to each Specially Serviced Mortgage Loan or REO Property as to which it
receives any full or discounted payoff or any Liquidation Proceeds (other than
in connection with the purchase of any such Specially Serviced Mortgage Loan or
REO Property by the Majority Certificateholder of the Controlling Class, the
Majority Certificateholder of the Controlling Class, the Special Servicer or a
Mortgage Loan Seller pursuant to Section 3.18 or by the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor pursuant to
Section 9.01). As to each such Specially Serviced Mortgage Loan or REO Property,
the Liquidation Fee shall be payable from, and shall be
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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 Mortgage Loan,
and the Special Servicer is properly entitled to a Workout Fee therefrom, such
Workout Fee will be payable based on and from the portion of such Liquidation
Proceeds that constitute principal and/or interest.
Notwithstanding anything to the contrary herein, a Liquidation
Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from
the same proceeds on or with respect to such Mortgage Loan.
Subject to the Special Servicer's right to receive the Special
Servicing Fee, the Workout Fee and/or the Liquidation Fee may not be transferred
in whole or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement.
(d) Additional servicing compensation in the form of (i) all
assumption fees, modification fees and earnout fees received on or with respect
to Specially Serviced Mortgage Loans and (ii) fifty percent (50%) of all
assumption fees, modification fees and earnout fees received on or with respect
to any Mortgage Loan that is not a Specially Serviced Mortgage Loan shall be
promptly paid by the Master Servicer to the Special Servicer and shall not be
required to be deposited in the Certificate Account pursuant to Section 3.04(a).
Additional servicing compensation in the form of assumption fees, earnout fees
and modification fees that the Master Servicer is entitled to and that are
collected by the Special Servicer, shall be paid promptly to the Master Servicer
by the Special Servicer. The Special Servicer shall also be entitled to
additional servicing compensation in the form of: (i) to the extent not required
to be paid to any Mortgagor under applicable law, any interest or other income
earned on deposits in the REO Account, any Servicing Accounts and any Reserve
Accounts maintained thereby; and (ii) to the extent not required to be paid to
the Master Servicer as additional servicing compensation pursuant to Section
3.11(b), any Penalty Charges (to the extent not allocable to pay Advance
Interest) collected on the Specially Serviced Mortgage Loans and REO Loans. The
Special Servicer shall be required to pay out of its own funds all overhead and
general and administrative expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, the premiums for
any blanket policy obtained by it insuring against hazard losses pursuant to
Section 3.07(b)), 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 is required under this Agreement to
make a Servicing Advance, but does not make such Servicing Advance within 15
days after such Advance is required to be made, the Trustee shall, to the extent
a Responsible Officer of the Trustee has actual knowledge of such failure by the
Master Servicer or the Special Servicer to make such Advance (subject to Section
3.11(h) below), make such Advance. If the Trustee fails
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to make a Servicing Advance required to be made by it, the Fiscal Agent shall
make such advance (subject to Section 3.11(h) below) within one (1) Business Day
of such failure by the Trustee. The making of such Advance by the Fiscal Agent
shall cure the failure by the Trustee to make such Advance.
(f) The Master Servicer, the Trustee and the Fiscal Agent shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of each Servicing Advance made thereby for
so long as such Servicing Advance is outstanding, payable, first, out of Penalty
Charges received on the Mortgage Loan or REO Loan as to which such Servicing
Advance was made and, then, once such Servicing Advance has been reimbursed
pursuant to Section 3.05, out of general collections on the Mortgage Loans and
REO Properties.
(g) On each Master Servicer Remittance Date, the Master Servicer
shall pay from the related Servicing Fee each Broker Strip Amount by wire
transfer in immediately available funds to an account designated by the Strip
Holder.
(h) Notwithstanding anything to the contrary set forth herein,
none of the Master Servicer, the Trustee or the Fiscal Agent shall be required
to make any Servicing Advance that it determines in its reasonable, good faith
judgment would constitute a Nonrecoverable Servicing Advance; provided, however,
that the Master Servicer may make an Emergency Advance notwithstanding that, at
the time such Advance is made, the Master Servicer or Special Servicer may not
have adequate information available in order to make a determination whether or
not such advance would, if made, be a Nonrecoverable Servicing Advance.
Notwithstanding the previous sentence, if the Master Servicer or Special
Servicer, as applicable, shall determine that the payment of any such amount is
(i) necessary to preserve the related Mortgaged Property and (ii) would be in
the best interest of the Certificateholders, then the Master Servicer shall make
such payment from amounts in the Certificate Account. In addition,
Nonrecoverable Servicing Advances (including any Emergency Advances made
pursuant to the proviso of the preceding sentence which are ultimately
determined to be Nonrecoverable Servicing Advances) shall be reimbursable
pursuant to Section 3.05 out of general collections on the Mortgage Loans and
REO Properties on deposit in the Certificate Account. The determination by the
Master Servicer, the Special Servicer (only in the case of clause (ii) of this
sentence) or, if applicable, the Trustee or the Fiscal Agent, (i) that it has
made a Nonrecoverable Servicing Advance or (ii) that any proposed Servicing
Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be
evidenced by an Officer's Certificate delivered promptly to the Trustee (or, if
applicable, retained thereby) and the Depositor, setting forth the basis for
such determination, together with (if such determination is prior to the
liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal
of the related Mortgaged Property or REO Property, as the case may be, if an
Appraisal shall have been performed within the twelve months preceding such
determination, and further accompanied by any other information, including,
without limitation, engineering reports, environmental surveys, inspection
reports, rent rolls, income and expense statements or similar reports, that the
Master Servicer or the Special Servicer may have obtained and that supports such
determination. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to
its reasonable and good faith determination that such Appraisal will
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demonstrate the nonrecoverability of the related Advance, obtain an Appraisal
for such purpose at the expense of the Trust Fund. The Trustee or the Fiscal
Agent shall be entitled to rely on any determination of nonrecoverability that
may have been made by the Master Servicer or the Special Servicer with respect
to a particular Servicing Advance, and the Master Servicer shall be entitled to
rely on any determination of nonrecoverability that may have been made by the
Special Servicer with respect to a particular Servicing Advance.
(i) In determining the compensation of the Master Servicer or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
since the prior Distribution Date shall be applied to reimburse (i) the Master
Servicer, the Trustee or the Fiscal Agent for interest on Advances with respect
to such related Mortgage Loan due with respect to such Distribution Date and
(ii) the Trust Fund for any Advance Interest or Additional Trust Fund Expenses
(excluding any Special Servicing Fees, Workout Fees and Liquidation Fees) with
respect to the related Mortgage Loan incurred since the Closing Date and not
previously reimbursed out of Penalty Charges, and any Penalty Charges remaining
thereafter shall be distributed pro rata to the Master Servicer and the Special
Servicer based upon the amount of Penalty Charges the Master Servicer or the
Special Servicer would otherwise have been entitled to receive during such
period with respect to such Mortgage Loan without any such application.
SECTION 3.12 Inspections; Collection of Financial Statements.
(a) The Master Servicer shall perform (or cause to be performed)
a physical inspection of each Mortgaged Property (other than Mortgaged
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
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Mortgaged Property evident from such inspection that the Special Servicer deems
material, or (iv) any waste committed on the Mortgaged Property evident from
such inspection. The Special Servicer, upon request, shall deliver to the
Trustee and the Master Servicer a copy of each such written report.
(c) The Master Servicer (or, in the case of Specially Serviced
Mortgage Loans, the Special Servicer) shall make reasonable efforts to collect
promptly from each Mortgagor (other than a Mortgagor on any Credit Lease Loan)
quarterly and annual operating statements and rent rolls of the related
Mortgaged Property. In addition, the Special Servicer shall make reasonable
efforts to obtain quarterly and annual operating statements and rent rolls with
respect to each REO Property. The Master Servicer and 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 2003, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of the Master Servicer or the
Special Servicer, as the case may be, during the preceding calendar year and of
its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
in all material respects its obligations under this Agreement throughout such
year, or, if there has been a material default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof and (iii) the Master Servicer or the Special Servicer, as the
case may be, has received no notice regarding qualification, or challenging the
status, of the Trust Fund as a REMIC or of the Grantor Trust as a "grantor
trust" under the Grantor Trust Provisions from the Internal Revenue Service or
any other governmental agency or body or, if it has received any such notice,
specifying the details thereof. A copy of such Officer's Certificate may be
obtained by Certificateholders upon written request to the Trustee pursuant to
Section 8.12 hereof.
SECTION 3.14 Reports by Independent Public Accountants.
On or before April 30th of each year, beginning in 2003, the
Master Servicer at its expense shall cause a firm of independent public
accountants (which may also render other services to the Master Servicer) that
is a member of the American Institute of Certified Public Accountants to furnish
a statement to the Trustee and 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
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qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of commercial and
multifamily mortgage loans by Sub-Servicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of examinations
conducted in accordance with the same standards (rendered within one year of
such report) with respect to those Sub-Servicers.
The Special Servicer will deliver an annual accountants' report
only if, and in such form as may be, requested by the Rating Agencies or if the
Special Servicer and the Master Servicer are not the same Person.
The Master Servicer and the Special Servicer, to the extent
applicable, will use reasonable efforts to cause the accountants referred to
above to cooperate with the Depositor in conforming any reports delivered
pursuant to this Section 3.14 to requirements imposed by the Commission on the
Depositor in connection with the Commission's issuance of a no-action letter
relating to the Depositor's reporting requirements in respect of the Trust Fund
pursuant to the Exchange Act.
SECTION 3.15 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall
provide or cause to be provided to the Trustee, and to the OTS, the FDIC, and
any other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to any documentation
regarding the Mortgage Loans and the Trust Fund within its control which may be
required by this Agreement or by applicable law. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it; provided, however, that applicable
Certificateholders shall be required to pay any photocopying costs. The Master
Servicer and the Special Servicer shall each be entitled to affix a reasonable
disclaimer to any information provided by it for which it is not the original
source (without suggesting liability on the part of any other party hereto). The
Master Servicer and the Special Servicer may each deny any of the foregoing
persons access to confidential information or any intellectual property which
the Master Servicer or the Special Servicer is restricted by license, contract
or otherwise from disclosing. Neither the Master Servicer nor the Special
Servicer shall be liable for providing or disseminating information in
accordance with the terms of this Agreement.
SECTION 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders. 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 ownership of such REO
Property is acquired for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) is granted an extension of time (an "REO Extension")
by the Internal Revenue Service to sell such REO Property is acquired or (ii)
obtains for the Trustee an Opinion of Counsel, addressed to the Trustee and the
Special Servicer, to the effect that the holding by the Trust Fund of such REO
Property subsequent to the close of such period will not (subject to Section
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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 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
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reserve not to exceed an amount sufficient to cover such items to be incurred
during the following twelve-month period.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or (c).
SECTION 3.17 Management of REO Property; Independent
Contractors.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a Defaulted Mortgage Loan, the Special Servicer shall review the
operation of such Mortgaged Property and determine the nature of the income that
would be derived from such property if it were acquired by the Trust Fund. If
the Special Servicer determines from such review, in its good faith and
reasonable judgment, that:
(i) None of the income from Directly Operating such
Mortgaged Property would be subject to tax as "net income from foreclosure
property" within the meaning of the REMIC Provisions or would be subject to the
tax imposed on "prohibited transactions" under Section 860F of the Code (either
such tax referred to herein as an "REO Tax"), such Mortgaged Property may be
Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an
REO Property could result in income from such property that would be subject to
an REO Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor with
respect to such property, or another method of operating such property would not
result in income subject to an REO Tax, then the Special Servicer may (provided,
that in the good faith and reasonable judgment of the Special Servicer, it is
commercially feasible) acquire such Mortgaged Property as REO Property and so
lease or operate such REO Property; or
(iii) Directly Operating such property as REO Property
could result in income subject to an REO Tax and, in the good faith and
reasonable judgment of the Special Servicer, that no commercially feasible means
exists to operate such property as REO Property without the Trust Fund incurring
or possibly incurring an REO Tax on income from such property, the Special
Servicer shall deliver to the Trustee, in writing, a proposed plan (the
"Proposed Plan") to manage such property as REO Property (such plan to be
approved by the Majority Certificateholder of the Controlling Class pursuant to
Section 3.24(f)). 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
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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 performing their respective responsibilities under this Section
3.17(a) or, to the extent it relates to federal income tax consequences for the
Trust Fund, Section 3.17(b) below. Nothing in this Section 3.17(a) is intended
to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the
terms and subject to the conditions of Section 3.18 or 3.19.
(b) If title to any REO Property is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders solely for the purpose of its prompt
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or, except as permitted by Section 3.17(a), result in the receipt of
any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or any "net income from foreclosure property" which is
subject to taxation under the REMIC Provisions. Subject to the foregoing,
however, the Special Servicer shall have full power and authority to do any and
all things in connection therewith as are in the best interests of and for the
benefit of the Certificateholders (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, lease
and dispose of such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in the prior sentence with
respect to such REO Property,
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the Master Servicer (at the direction of the Special Servicer) shall advance
such amount as is necessary for such purposes (which advances shall be Servicing
Advances) unless (as evidenced by an Officer's Certificate delivered to the
Trustee) such advances would, if made, constitute Nonrecoverable Servicing
Advances; provided, however, that the Master Servicer (at the direction of the
Special Servicer) shall make any such Servicing Advance if it is a necessary fee
or expense incurred in connection with the defense or prosecution of legal
proceedings and such advance will be deemed to constitute a recoverable
Servicing Advance.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided 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;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor (A) pay, out of related
REO Revenues, all costs and expenses incurred in connection with the operation
and management of such REO Property, including, without limitation, those listed
in subsection (b) hereof, and (B) remit all related REO Revenues (net of its
fees and such costs and expenses) to the Special Servicer;
(iv) none of the provisions of this Section 3.17(c)
relating to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its duties
and obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into an agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 3.18 Sale of Defaulted Mortgage Loans.
(a) The parties hereto may sell or purchase, or permit the sale
or purchase of, a Mortgage Loan only on the terms and subject to the conditions
set forth in this Section 3.18 or as otherwise expressly provided in or
contemplated by Sections 2.03(a) and 9.01.
(b) In the event that any Mortgage Loan becomes 60 days
delinquent as to any Monthly Payment (or if such Mortgage Loan is a Balloon
Mortgage Loan and is delinquent as to its Balloon Payment, only if such Mortgage
Loan is also a Specially Serviced Mortgage Loan), the Special Servicer shall
promptly so notify (an "Option Notice"), in writing, the Master
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Servicer and the Trustee, and the Trustee shall promptly notify, in writing, the
Holders of the Controlling Class. Each of the Majority Certificateholder of the
Controlling Class and the applicable Mortgage Loan Seller with respect to such
Mortgage Loan (in such capacity, together with any assignee, the "Option
Holder") shall, in that order, have the right, at its option (the "Option"), to
purchase such Mortgage Loan from the Trust Fund at a price equal to the Option
Purchase Price (as defined in clause (c) below) upon receipt of such Option
Notice. The Option is exercisable from that date until terminated pursuant to
clause (f) below, and during that period the Option shall be exercisable in any
month only during the period from the 10th calendar day of such month through
the 25th calendar day, inclusive, of such month. The Trustee on behalf of the
Trust Fund shall be obligated to sell the Mortgage Loan upon the exercise of the
Option (whether exercised by the original Holder thereof or by an assignee of
such Holder), but shall have no authority to sell the Mortgage Loan other than
in connection with the exercise of an Option (or as otherwise expressly provided
in or contemplated by Section 2.03(a) or Section 9.01). Any Option Holder that
exercises the Option shall be required to purchase the Mortgage Loan within four
Business Days of such exercise. If any Option Holder assigns the Option to a
third party pursuant to clause (d) below, then it shall so notify the Trustee in
writing, and the Trustee shall promptly notify the next party eligible to hold
the Option set forth above of its rights hereunder. Any of the other parties
eligible to hold the Option set forth above may at any time notify the Trustee
in writing and the Trustee will notify the current Option Holder and the other
parties eligible to hold the Option of such party's desire to exercise the
Option. If the Option Holder neither (i) exercises the Option nor (ii)
surrenders its right to exercise the Option within thirty (30) days of its
receipt of that notice, then the Option Holder's right to exercise the Option
shall lapse, and the Trustee shall promptly notify the next party eligible to
hold the Option (and the other parties eligible to hold the Option) of its
rights thereunder.
Notwithstanding the foregoing paragraph, the Majority
Certificateholder of the Controlling Class or its assignee shall have the right
to exercise its Option prior to any exercise of the Option by the applicable
Mortgage Loan Seller or its assignee; provided, however, if the Option is not
exercised by the Majority Certificateholder of the Controlling Class or any
assignee thereof within thirty (30) days of the Option Notice, then the
applicable Mortgage Loan Seller or its assignee shall have the right to exercise
its Purchase Option prior to any exercise by the Majority Certificateholder of
the Controlling Class and the applicable Mortgage Loan Seller or its assignee
may exercise such Option at any time during the thirty (30) day period
immediately following the expiration of such initial 30-day period. Following
the expiration of such thirty (30) day period, the Majority Certificateholder of
the Controlling Class shall again have the exclusive right to exercise the
Purchase Option.
(c) The "Option Purchase Price" shall be an amount equal to the
fair market value of the Mortgage Loan, as determined by the Special Servicer.
Prior to the Special Servicer's determination of fair market value referred to
above, the fair market value of the Mortgage Loan shall be deemed to be an
amount equal to the Purchase Price, including any Prepayment Premium or Yield
Maintenance Charge then payable upon the prepayment of the Mortgage Loan. The
Special Servicer shall determine the fair market value of the Mortgage Loan as
soon as reasonably practical upon the Mortgage Loan becoming 60 days delinquent
or delinquent in respect of its Balloon Payment (but in any event, not earlier
than 75 days after the receipt by the Special Servicer of the Mortgage Loan File
and Servicing File relating to such Mortgage Loan), and the Special Servicer
shall promptly notify the Option Holder (and the
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Trustee and each of the other parties set forth above that could become the
Option Holder) of the Option Purchase Price. The Special Servicer is required to
recalculate the fair market value of the Mortgage Loan based upon a material
change in circumstances or the receipt of new information, provided that the
Special Servicer shall be required to recalculate the fair market value of the
Mortgage Loan if the time between the date of last determination of the fair
market value of the Mortgage Loan and the date of the exercise of the Option has
exceeded 60 days. Upon any recalculation, the Special Servicer shall be required
to promptly notify in writing each Option Holder (and the Trustee and each of
the other parties set forth above that could become the Option Holder) of the
revised Option Purchase Price. Any such recalculation of the fair market value
of the Mortgage Loan shall be deemed to renew the Option in its original
priority at the recalculated price with respect to any party as to which the
Option had previously expired or been waived, unless the Option has previously
been exercised by an Option Holder at a higher Option Purchase Price. In
determining fair market value, the Special Servicer shall take into account,
among other factors, the results of any Appraisal or updated Appraisal that it,
or the Master Servicer, may have obtained in accordance with this Agreement
within the prior twelve months; any views on fair market value expressed by
investors in mortgage loans comparable to the Mortgage Loan (provided that the
Special Servicer shall not be required to solicit such views); the period and
amount of any delinquency on the Mortgage Loan; whether the Mortgage Loan, in
the Special Servicer's actual knowledge and reasonable and good faith judgment,
is in default to avoid a prepayment restriction; the physical condition of the
related Mortgaged Property; the state of the local economy; the expected
recoveries from the Mortgage Loan if the Special Servicer were to pursue a
workout or foreclosure strategy instead of the Option being exercised; and the
Trust Fund's obligation to dispose of any foreclosed Mortgaged Property as soon
as practicable consistent with the objective of maximizing proceeds for all
Certificateholders.
(d) Any Option relating to a Mortgage Loan shall be assignable
to a third party by the Option Holder at its discretion at any time after its
receipt of the Option Notice, and upon such assignment such third party shall
have all of the rights granted to the Option Holder hereunder in respect of the
Option. Such assignment shall only be effective upon notice (together with a
copy of the executed assignment and assumption agreement) being delivered to the
Trustee, the Master Servicer and the Special Servicer, and none of such parties
shall be obligated to recognize any entity as an Option Holder absent such
notice.
(e) If the Majority Certificateholder of the Controlling Class,
the applicable Mortgage Loan Seller or an Affiliate of any of them elects to
exercise the Option, the Trustee shall be required to determine whether the
Option Purchase Price constitutes a fair price for the Mortgage Loan. Upon
request of the Special Servicer to make such a determination, the Trustee will
do so within a reasonable period of time (but in no event more than 15 Business
Days). In doing so, the Trustee may rely on the most recent Appraisal or the
opinion of another expert in real estate matters retained by the Trustee at the
expense of the party exercising the Option. The Trustee may also rely on the
most recent Appraisal of the related Mortgaged Property that was prepared in
accordance with the requirements of this Agreement. If the Trustee were to
conclude that the Option Purchase Price does not constitute a fair price, then
the Special Servicer shall determine the fair market value taking into account
the objections of the Trustee hereunder.
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(f) The Option shall terminate, and shall not be exercisable as
set forth in clause (b) above (or if exercised, but the purchase of the Mortgage
Loan has not yet occurred, shall terminate and be of no further force or effect)
if the Mortgage Loan is no longer delinquent as set forth above because (i) the
Mortgage Loan ceases to be a Specially Serviced Mortgage Loan, (ii) the Mortgage
Loan has been subject to a workout arrangement, (iii) the Mortgage Loan has been
foreclosed upon, or otherwise resolved (including by a full or discounted
pay-off) or (iv) the Mortgage Loan has been purchased by the applicable Mortgage
Loan Seller pursuant to Section 2.03 or by the Depositor or the Master Servicer
or otherwise pursuant to Section 9.01.
(g) Unless and until an Option Holder exercises an Option, the
Special Servicer shall continue to service and administer the Mortgage Loan in
accordance with the Servicing Standard and this Agreement and shall pursue such
other resolutions or recovery strategies including Workout or foreclosure, as is
consistent with this Agreement and the Servicing Standard.
(h) Subject to subsections (a) through (g) above, the Special
Servicer shall act on behalf of the Trust Fund in negotiating and taking any
other action necessary or appropriate in connection with the sale of any
Mortgage Loan pursuant to this Section 3.18, and the collection of all amounts
payable in connection therewith. In connection therewith, the Special Servicer
may charge prospective offerors, and may retain, fees that approximate the
Special Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or exchanging offers without obligation to deposit such
amounts into the Certificate Account. Any sale of a Mortgage Loan shall be final
and without recourse to the Trustee or the Trust Fund (except such recourse to
the Trust Fund imposed by those representations and warranties typically given
in such transactions, any prorations applied thereto and any customary closing
matters), and if such sale is consummated in accordance with the terms of this
Agreement, none of the Special Servicer, the Master Servicer, the Depositor or
the Trustee shall have any liability to any Certificateholder with respect to
the purchase price therefor accepted by the Special Servicer or the Trustee.
(i) Any sale of a Mortgage Loan pursuant to this Section 3.18
shall be for cash only (unless, as evidenced by an Opinion of Counsel, a sale
for other consideration will not cause an Adverse REMIC Event). The Option
Purchase Price for any Mortgage Loan purchased under this Section 3.18 shall be
deposited into the Certificate Account, and the Trustee, upon receipt of an
Officer's Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the purchaser of the
Mortgage Loan the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in such purchaser ownership of such Mortgage Loan (subject,
in the case of an Additional Servicing Fee Mortgage Loan, to the rights of the
applicable Designated Sub-Servicer to sub-service such Mortgage Loan and the
rights of the applicable Designated Sub-Servicer, Archon, GSMC and the Master
Servicer, as applicable, to receive or retain their applicable portion of the
Additional Servicing Fee, in each case, pursuant to the related Designated
Sub-Servicer Agreement). In connection with any such purchase, the Special
Servicer and the Master Servicer shall deliver the related Servicing File (to
the extent either has possession of such file) to such purchaser.
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SECTION 3.19 Sale of REO Property.
(a) The parties hereto may sell or purchase, or permit the sale
or purchase of, an REO Property only on the terms and subject to the conditions
set forth in this Section 3.19.
(b) The Special Servicer shall use reasonable efforts to solicit
offers for each REO Property on behalf of the Certificateholders in such manner
as will be reasonably likely to realize a fair price within the time period
specified by Section 3.16(a). The Special Servicer shall accept the first (and,
if multiple bids are contemporaneously received, highest) cash bid received from
any Person that constitutes a fair price for such REO Property. If the Special
Servicer determines, in its good faith and reasonable judgment, that it will be
unable to realize a fair price for any REO Property within the time constraints
imposed by Section 3.16(a), then the Special Servicer shall dispose of such REO
Property upon such terms and conditions as the Special Servicer shall deem
necessary and desirable to maximize the recovery thereon under the circumstances
and, in connection therewith, shall accept the highest outstanding cash bid,
regardless from whom received. The Liquidation Proceeds (net of related
Liquidation Expenses) for any REO Property purchased hereunder shall be
deposited in the Certificate Account, except that portion of any proceeds
constituting Excess Liquidation Proceeds shall be deposited in the Excess
Liquidation Proceeds Reserve Account.
(c) The Special Servicer shall give the Trustee and the Master
Servicer not less than three Business Days' prior written notice of its
intention to sell any REO Property. No Interested Person shall be obligated to
submit a bid to purchase any REO Property, and notwithstanding anything to the
contrary contained herein, neither the Trustee, in its individual capacity, nor
any of its Affiliates may bid for or purchase any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any REO
Property for purposes of Section 3.19(b) shall be determined by the Special
Servicer, if the highest bidder is a Person other than an Interested Person, and
by the Trustee, if the highest bidder is an Interested Person; provided,
however, that no bid from an Interested Person shall constitute a fair price
unless (i) it is the highest bid received and (ii) at least two other bids are
received from independent third parties. In determining whether any offer
received from an Interested Person represents a fair price for any such REO
Property, the Trustee shall be supplied with and shall rely on the most recent
Appraisal or updated Appraisal conducted in accordance with this Agreement
within the preceding 12 month period or, in the absence of any such Appraisal,
on a narrative appraisal prepared by a Qualified Appraiser retained by the
Special Servicer. Such appraiser shall be selected by the Special Servicer if
the Special Servicer is not making an offer with respect to an REO Property and
shall be selected by the Master Servicer if the Special Servicer is making such
an offer. The cost of any such narrative appraisal shall be covered by, and
shall be reimbursable as, a Servicing Advance. In determining whether any such
offer from a Person other than an Interested Person constitutes a fair price for
any such REO Property, the Special Servicer shall take into account (in addition
to the results of any Appraisal, updated Appraisal or narrative appraisal that
it may have obtained pursuant to this Agreement within the prior 12 months), and
in determining whether any offer from an Interested Person constitutes a fair
price for any such REO Property, any appraiser shall be instructed to take into
account, as applicable, among other factors, the period and amount of any
delinquency on the affected Mortgage Loan, the occupancy level and physical
condition of the REO Property, the state of the
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local economy and the obligation to dispose of any REO Property within the time
period specified in Section 3.16(a). The Purchase Price for any REO Property
shall in all cases be deemed a fair price.
(e) Subject to subsections (a) through (d) above, the Special
Servicer shall act on behalf of the Trust Fund in negotiating and taking any
other action necessary or appropriate in connection with the sale of any REO
Property, and the collection of all amounts payable in connection therewith. In
connection therewith, the Special Servicer may charge prospective offerors, and
may retain, fees that approximate the Special Servicer's actual costs in the
preparation and delivery of information pertaining to such sales or exchanging
offers without obligation to deposit such amounts into the Certificate Account.
Any sale of any REO Property shall be final and without recourse to the Trustee
or the Trust Fund (except such recourse to the Trust Fund imposed by those
representations and warranties typically given in such transactions, any
prorations applied thereto and any customary closing matters), and if such sale
is consummated in accordance with the terms of this Agreement, none of the
Special Servicer, the Master Servicer, the Depositor or the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(f) Any sale of any REO Property shall be for cash only (unless,
as evidenced by an Opinion of Counsel, a sale for other consideration will not
cause an Adverse REMIC Event).
(g) Notwithstanding any of the foregoing paragraphs of this
Section 3.19, the Special Servicer shall not be obligated to accept the highest
cash offer if the Special Servicer determines, in its reasonable and good faith
judgment, that rejection of such offer would be in the best interests of the
Certificateholders, and 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 3.20 Additional Obligations of the Master Servicer and
the Special Servicer.
(a) In connection with any Adjustable Rate Mortgage Loan (and,
if and to the extent applicable, any successor REO Loan), the Master Servicer
shall calculate adjustments in the Mortgage Rate and the Monthly Payment and
shall notify the Mortgagor of such adjustments, all in accordance with the
Mortgage Note and applicable law. In the event the Index for any Adjustable Rate
Mortgage Loan (or successor REO Loan) is not published or is otherwise
unavailable, the Master Servicer shall select a comparable alternative index
with respect to such Adjustable Rate Mortgage Loan (or successor REO Loan) over
which it has no direct control, which is readily verifiable and which is
acceptable under the terms of the related Mortgage Note.
(b) The Master Servicer and the Special Servicer, as applicable,
shall each deliver to the other and to the Trustee (for inclusion in the
Mortgage File) copies of all
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Appraisals, environmental reports and engineering reports (or, in each case,
updates thereof) obtained with respect to any Mortgaged Property or REO
Property.
(c) Subject to the following paragraph, the Master Servicer
shall have the obligation to make any Servicing Advance that it is requested by
the Special Servicer to make within ten days of the Master Servicer's receipt of
such request. The Special Servicer shall be relieved of any obligations with
respect to an Advance that it requests the Master Servicer to make (regardless
of whether or not the Master Servicer shall make such Advance). The Master
Servicer shall be entitled to reimbursement for any Servicing Advance made by it
at the direction of the Special Servicer, together with Advance Interest
thereon, at the same time, in the same manner and to the same extent as the
Master Servicer is entitled with respect to any other Servicing Advance made
thereby.
Notwithstanding the foregoing provisions of this Section
3.20(c), the Master Servicer shall not be required to make at the Special
Servicer's direction any Servicing Advance, if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to make either (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
(or the 150th day with respect to a Balloon Payment for which the Mortgagor has
produced a written refinancing commitment pursuant to clause (1) of the
definition of "Specially Serviced Mortgage Loan"), (iii) the date on which a
receiver is appointed and continues in such capacity in respect of the Mortgaged
Property securing any Mortgage Loan, (iv) the 60th day following any bankruptcy
or similar proceedings involving a Mortgagor and (v) the date on which the
Mortgaged Property securing any Mortgage Loan 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 such Mortgaged Property
had previously been obtained within the prior twelve months, unless the Special
Servicer determines that such previously obtained Appraisal is materially
inaccurate. The cost of any such Appraisal shall be covered by, and reimbursable
as, a Servicing Advance.
With respect to each Required Appraisal Loan (unless such loan
has become a Corrected Mortgage Loan and no other Servicing Transfer Event, or
other event that would cause the loan to be a Required Appraisal Loan, has
occurred), the Special Servicer shall, within 30 days of each anniversary of
such loan's becoming a Required Appraisal Loan, order an update of the prior
Appraisal (the cost of which will be covered by, and reimbursable as, a
Servicing Advance by the Master Servicer). Based upon such Appraisal, the
Special Servicer shall
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determine and report to the Trustee the Appraisal Reduction Amount, if any, with
respect to such loan. The Special Servicer shall deliver a copy of any such
Appraisal to the Master Servicer.
Notwithstanding the foregoing, if a Required Appraisal Loan has
a principal balance of less than $2,000,000, a desktop estimation of value may
be substituted for any Appraisal otherwise required pursuant to this Section
3.20(d); provided that the Special Servicer may, with the consent of the
Majority Certificateholder of the Controlling Class, order an Appraisal at the
expense of the Trust Fund.
(e) The Master Servicer shall deliver to the Trustee for deposit
in the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the aggregate of all Balloon
Payment Interest Shortfalls incurred in connection with Balloon Payments
received in respect of the Mortgage Loans during the most recently ended
Collection Period.
(f) The Master Servicer shall deliver to the Trustee for deposit
in the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate of all Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of the Mortgage Loans during the most
recently ended Collection Period, the aggregate Master Servicing Fees received
by the Master Servicer during such Collection Period.
(g) With respect to all ARD Loans, if any, the Master Servicer
shall apply all Monthly Payments and any other sums due, in accordance with the
terms of the related ARD Loan.
(h) Subject to Section 3.21(a)(iv), with respect to all ARD
Loans, if any, the Master Servicer and the Special Servicer shall not take any
enforcement action with respect to the payment of Excess Interest or principal
in excess of the principal component of the constant Monthly Payment, other than
request for collection, until the maturity date of the related Mortgage Loan.
The foregoing shall not limit the Master Servicer's and Special Servicer's
obligation to establish or direct the related Mortgagor to establish a Lock-Box
Account pursuant to Section 3.25.
(i) The Master Servicer shall be entitled to waive the
application of any provision in any ARD Loan that requires that the property
manager of the related Mortgaged Property be discharged if such ARD Loan is not
paid in full on its Anticipated Repayment Date.
(j) With respect to each Mortgage Loan that upon the occurrence
of certain events permits the Master Servicer to apply the proceeds of the
release of any earnout reserve to the exercise of a Defeasance Option, the
Master Servicer shall only exercise such Defeasance Option in accordance with
Section 3.08 of this Agreement.
(k) To the extent consistent with the terms of the applicable
Mortgage Loan, the Master Servicer shall exercise its option to apply any
proceeds of the release of the related earnout reserve to prepayment or
defeasance, as applicable, of such Mortgage Loan.
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(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.
(o) With respect to any fees payable to a Rating Agency in
connection with an assumption the Master Servicer or Special Servicer, as
applicable, shall not approve any assumption without requiring the Mortgagor to
pay any fees associated with any Rating Agency Confirmation, to the extent
permitted or required under the applicable Mortgage Loan documents and otherwise
consistent with the Servicing Standard.
SECTION 3.21 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer and the Special Servicer each may agree
to any modification, waiver or amendment of any term of, forgive interest on and
principal of, capitalize interest on, permit the release, addition or
substitution of collateral securing, and/or permit the release of the Mortgagor
on or any guarantor of any Mortgage Loan 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) subject to Section 3.21(i), other than as provided
in Sections 3.02 and 3.08, the Master Servicer (in such capacity) shall not
agree to any modification, waiver or amendment of any term of, or take any of
the other acts referenced in this Section 3.21(a) with respect to, any Mortgage
Loan 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 acts referenced in
this Section 3.21(a) with respect to, a Specially Serviced Mortgage Loan that
would have any such effect, but only if, in
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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 3.21(a) or clause
(h) of Section 3.20 with respect to, any Mortgage Loan that would (A) cause
REMIC I, REMIC II or REMIC III (or any of the Xxxx REMIC, the Xxxxxxx REMIC, the
Central REMIC, the Gateway REMIC and the Summit REMIC) to fail to qualify as a
REMIC under the Code or (subject to Section 10.01(f)) result in the imposition
of any tax on "prohibited transactions" or "contributions" after the Startup Day
of any such REMIC under the REMIC Provisions or (B) cause any Mortgage Loan 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;
(vi) neither the Master Servicer nor the Special
Servicer shall, with respect to a Mortgage Loan, other than a Specially Serviced
Mortgage Loan release or substitute
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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
3.21(a) that is required under the terms of such Mortgage Loan in effect on the
Closing Date and that is solely within the control of the related Mortgagor, and
(y) notwithstanding clauses (i) through (vi) above, neither the Master Servicer
nor the Special Servicer shall be required to oppose the confirmation of a plan
in any bankruptcy or similar proceeding involving a Mortgagor if in their
reasonable and good faith judgment such opposition would not ultimately prevent
the confirmation of such plan or one substantially similar. Neither the Master
Servicer nor the Special Servicer may extend the Maturity Date on any Mortgage
Loan except pursuant to this Section 3.21(a) or as otherwise required under the
related loan documents; and
(vii) the Master Servicer shall not consent to (A) any
waivers relating to the establishment of reserves, (B) waivers of any
requirements regarding additional collateral or (C) waivers of any lock-box
requirements, unless the Special Servicer has approved such waiver in writing.
(b) Neither the Master Servicer nor the Special Servicer shall
have any liability to the Trust Fund, the Certificateholders or any other Person
if its analysis and determination that the modification, waiver, amendment or
other action contemplated by Section 3.21(a) is reasonably likely to produce a
greater recovery to Certificateholders on a present value basis than would
liquidation, should prove to be wrong or incorrect, so long as the analysis and
determination were made on a reasonable basis in good faith by the Master
Servicer or Special Servicer and the Master Servicer or Special Servicer was not
negligent in ascertaining the pertinent facts. The Master Servicer shall not
have any liability to the Trust Fund, the Certificateholders or any other Person
with respect to the Special Servicer's approval, disapproval or delay in
processing any assumption or earnout release as provided in Section
3.21(a)(vii).
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, 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.
(d) The Master Servicer and, with respect to a Specially
Serviced Mortgage Loan, the Special Servicer each may, as a condition to its
granting any request by a Mortgagor
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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 3.21 shall be in writing.
(f) Each of the Master Servicer and the Special Servicer shall
notify the Trustee and such other party, in writing, of any modification, waiver
(other than a waiver of Penalty Charges) or amendment of any term of any
Mortgage Loan and the date thereof, and shall deliver to the Trustee or the
related Custodian for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly (and in any event within 10 Business Days) following the execution
thereof.
(g) The Master Servicer or Special Servicer, as applicable,
shall not waive the payment of any fees by a Mortgagor that may be due or
partially due to the other party without such other party's consent.
(h) The failure of the Special Servicer to respond to the Master
Servicer within ten (10) Business Days of the Master Servicer's written request
(such request to include sufficient information regarding the applicable
Mortgage Loan and a written recommendation and rationale therefore with respect
to such request) for any approval or consent required hereunder, shall be deemed
to constitute a grant of such request for approval or consent.
(i) Notwithstanding the foregoing provisions of this Section
3.21, the Master Servicer shall not agree to any material modification, material
waiver or material amendment of any term of any Mortgage Loan unless (a) the
Master Servicer shall have notified the Special Servicer of the request for the
material modification and provided its written recommendation, analysis and any
other related documents in the possession or control of the Master Servicer
reasonably requested by the Special Servicer to the Special Servicer, (b) the
Special Servicer shall have approved such material modification, notified the
Majority Certificateholder of the Controlling Class of the request for such
approval and of the Master Servicer's and its own approval of such material
modification and shall have submitted to the Majority Certificateholder of the
Controlling Class each of the documents submitted to the Special Servicer by the
Master Servicer and (c) the Majority Certificateholder of the Controlling Class
shall have also approved such material modification; provided, however, that the
Special Servicer shall advise the Majority Certificateholder of the Controlling
Class of its approval (if any) of such material modification promptly upon (but
in no case to exceed 10 Business Days) its receipt of such notice,
recommendation, analysis and any reasonably requested documents from the Master
Servicer; and, provided, further, that if the Majority Certificateholder of the
Controlling Class does not reject such recommendation within 5 Business Days of
its receipt of the Special Servicer's recommendation and any additional
documents or information that the Majority
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Certificateholder of the Controlling Class may reasonably request, then the
material modification shall be deemed approved. Unless required by the related
Mortgage Loan documents or the Servicing Standard, neither the Master Servicer
nor Special Servicer shall approve such material modification unless the
Mortgagor shall agree to pay all fees and costs associated with such material
modification (unless such condition shall have been waived by the Majority
Certificateholder of the Controlling Class).
(j) Permitted modifications and other similar actions with
respect to the Mortgage Loans of the Xxxx REMIC, Xxxxxxx REMIC, Central REMIC,
Gateway REMIC, and Summit REMIC as described in this Section 3.21 shall refer to
the Mortgage Loans held by such REMIC and not the Regular Interests issued by
such REMICs.
SECTION 3.22 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Mortgage Loan 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.
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.
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(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 3.23 Sub-Servicing Agreements.
(a) The Master Servicer may enter into Sub-Servicing Agreements
for the servicing and administration of all or a part of the Mortgage Loans for
which it is responsible hereunder, provided that, in each case, the
Sub-Servicing Agreement: (i) is not inconsistent with this Agreement and shall
provide that the Sub-Servicer will maintain errors and omissions insurance and
fidelity bond coverage as required of the Master Servicer under Section 3.07
hereof; (ii) provides that if the Master Servicer, shall for any reason no
longer be the Master Servicer hereunder (including, without limitation, by
reason of an Event of Default or their termination hereunder), the Trustee, its
designee or any successor Master Servicer may thereupon assume all of the rights
and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer, under such agreement; (iii) 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, GSMC and the Master Servicer, as the case may be, shall be
entitled to continue to receive or retain their applicable portion of the
Additional Servicing Fee with respect to such Mortgage Loan pursuant to the
related Designated Sub-Servicer Agreement); (iv) requires that the Master
Servicer consent to any modification to the terms of a Mortgage Loan pursuant to
Section 3.21; and (v) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund.
Termination penalties or fees incurred under any such Sub-Servicing Agreement
shall not be an obligation of, or expense chargeable to, the Certificateholders
or the Trust Fund. References in this Agreement to actions taken or to be taken
by the Master Servicer include actions taken or to be taken by a Sub-Servicer on
behalf of the Master Servicer; and, in connection therewith, all amounts
advanced by any Sub-Servicer to satisfy the obligations of the Master Servicer
hereunder to make Servicing Advances and Delinquency Advances shall be deemed to
have been advanced by the Master Servicer, out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were the Master
Servicer, and, for so long as they are outstanding, such Advances shall accrue
interest in accordance with Section 3.11(f) or Section 4.03(d), as applicable,
such interest to be allocable between the Master Servicer and such Sub-Servicer
as they may agree. For purposes of this Agreement, the Master Servicer shall be
deemed to have received any payment when the Sub-Servicer receives such payment.
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(b) Each Sub-Servicer shall be authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Master
Servicer, for the benefit of the Trustee and the Certificateholders, 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 in accordance with the Servicing
Standard.
(d) In the event the Trustee, its designee or any successor
Master Servicer assumes the rights and obligations of the Master Servicer under
any Sub-Servicing Agreement, the Master Servicer at its expense shall, upon
request of the Trustee, deliver to the assuming party all documents and records
relating to such Sub-Servicing Agreement and the Mortgage Loans then being
serviced thereunder and an accounting of amounts collected and held on behalf of
it thereunder, and otherwise use reasonable efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer shall remain obligated and liable to the Trustee 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.
SECTION 3.24 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class; 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
Master Servicer and the Special Servicer. The designated Person shall become the
Special Servicer as of the date the Trustee shall have received: (i) written
confirmation from the Rating Agencies stating that if the designated Person were
to serve as Special Servicer hereunder, none of the then-current ratings of the
outstanding Classes of the Certificates would be qualified (including by
placement on "negative credit watch"), downgraded or withdrawn; (ii) a written
acceptance of all obligations of the Special Servicer under this Agreement,
executed by the designated Person; and (iii) an Opinion of Counsel (at the
expense of the Person designated to become the Special Servicer or the Holders
that made the designation) to the effect that the designation of such Person to
serve as Special Servicer is in compliance with this Section 3.24 and all other
applicable provisions of this Agreement, that upon the execution and delivery of
the written acceptance referred to in the
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immediately preceding clause (ii), the designated Person shall be bound by the
terms of this Agreement and that this Agreement shall be enforceable against the
designated Person in accordance with its terms. The existing Special Servicer
shall be deemed to have resigned simultaneously with such designated Person's
becoming the Special Servicer hereunder; provided, however, that (i) the
resigning Special Servicer shall continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the effective date of
such resignation, and (ii) it and its directors, officers, employees and agents
shall continue to be entitled to the benefits of Section 6.03, notwithstanding
any such resignation. Such resigning Special Servicer shall cooperate with the
Trustee, the Master Servicer and the replacement Special Servicer in effecting
the termination of the resigning Special Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer within two Business Days
to the replacement Special Servicer for administration by it of all cash amounts
that shall at the time be or should have been deposited in the REO Account or
delivered by the Special Servicer to the Master Servicer or that are thereafter
received with respect to Specially Serviced Mortgage Loans and REO Properties.
The Majority Certificateholder of the Controlling Class shall be responsible for
paying any costs associated with such replacement, including the reasonable
costs of any servicing transfer other than in the case of a replacement due to
the Special Servicer being terminated for cause or as a result of an assignment
pursuant to Section 6.02(c).
(b) The Majority Certificateholder of the Controlling Class will
have no liability to the Trust or the Certificateholders for any action taken,
or for refraining from the taking of any action, in good faith pursuant to this
Agreement, or for errors in judgment. Each Holder and Certificate Owner
acknowledges and agrees, by its acceptance of its Certificates or an interest
therein, that the Majority Certificateholder of the Controlling Class may have
special relationships and interests that conflict with those of Holders and
Certificate Owners of one or more Classes of Certificates, that the Majority
Certificateholder of the Controlling Class may act solely in the interests of
the Holders and Certificate Owners of the Controlling Class, that the Majority
Certificateholder of the Controlling Class does not have any duties to the
Holders and Certificate Owners of any Class of Certificates other than the
Controlling Class, that the Majority Certificateholder of the Controlling Class
may take actions that favor interests of the Holders and Certificate Owners of
the Controlling Class over the interests of the Holders and Certificate Owners
of one or more other Classes of Certificates, and that the Majority
Certificateholder of the Controlling Class shall have no liability whatsoever
for having so acted, and no Certificateholder may take any action whatsoever
against the Majority Certificateholder of the Controlling Class or any director,
officer, employee, agent or principal thereof for having so acted.
(c) Notwithstanding the foregoing, if the Controlling Class
consists of Book-Entry Certificates, then the rights of the Holders of the
Controlling Class set forth above in this Section 3.24 may be exercised directly
by the relevant Certificate Owners, provided that the identity of such
Certificate Owners has been confirmed to the Trustee to its reasonable
satisfaction.
(d) The Majority Certificateholder of the Controlling Class
shall be provided access on the website of the Master Servicer or Trustee, as
applicable, to all reports and notices required to be submitted to the Rating
Agencies by the terms hereof by any of the Trustee or the Master Servicer (or in
lieu of providing such access the Master Servicer or Trustee, as
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applicable, may provide copies (including electronic copies) of such reports and
notices directly to the Majority Certificateholder of the Controlling Class).
The Special Servicer shall provide copies of any reports and notices it is
required to send to the Majority Certificateholder of the Controlling Class
directly to the Majority Certificateholder of the Controlling Class.
(e) Each of the Master Servicer and Special Servicer, as
appropriate, shall, without charge, make a knowledgeable Servicing Officer
available to answer questions from the Majority Certificateholder of the
Controlling Class regarding, on no more often than a monthly basis, during
regular business hours at such time and for such duration as the Master
Servicer, the Special Servicer and the Majority Certificateholder of the
Controlling Class shall reasonably agree, the performance of any Mortgage Loan
that is delinquent, Specially Serviced Mortgage Loans, Mortgage Loans on the
CMSA Servicer Watch List, or Mortgage Loans otherwise reasonably identified as
exhibiting deteriorating performance. The Majority Certificateholder of the
Controlling Class agrees to identify for the Master Servicer and the Special
Servicer in advance (but at least two (2) Business Days prior to the related
monthly conference) the Mortgage Loans it intends to discuss. As a condition to
such disclosure, the Majority Certificateholder of the Controlling Class shall
execute a confidentiality agreement substantially in the form attached hereto as
Exhibit H-2 and an Investor Certification.
(f) The Majority Certificateholder of the Controlling Class
shall be entitled to advise the Special Servicer with respect to the following
actions of the Special Servicer, and notwithstanding anything herein to the
contrary except as necessary or advisable to avoid an Adverse REMIC Event and
except as set forth in, and in any event subject to, Section 3.24(g), the
Special Servicer will not be permitted to take any of the following actions as
to which the Majority Certificateholder of the Controlling Class has objected in
writing within five Business Days of being notified thereof and/or receipt of
all reasonably requested documents in the Special Servicer's possession
(provided that if such written objection has not been received by the Special
Servicer within such five Business Day period, then the Majority
Certificateholder of the Controlling Class's approval will be deemed to have
been given):
(i) any actual or proposed foreclosure upon or
comparable conversion (which may include acquisitions of an REO Property) of the
ownership of properties securing such of the Specially Serviced Mortgage Loans
as come into and continue in default;
(ii) any modification or waiver of any term of the
related Mortgage Loan documents of a Mortgage Loan that relates to the Maturity
Date, the Mortgage Rate, the Stated Principal Balance, amortization term or
payment frequency thereof or any provision requiring the payment of a Prepayment
Premium, other than a modification consisting of the extension of the maturity
date of a Mortgage Loan for one year or less;
(iii) any proposed or actual sale of an REO Property
(other than in connection with the termination of the Trust Fund or pursuant to
Section 3.18);
(iv) any determination to bring an REO Property into
compliance with applicable environmental laws or to otherwise address Hazardous
Materials located at an REO Property;
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(v) any acceptance of substitute or additional
collateral for a Mortgage Loan unless required by the underlying Mortgage Loan
documents;
(vi) any waiver of a "due-on-sale" clause or
"due-on-encumbrance" clause;
(vii) any release of any performance or "earn-out"
reserves, escrows or letters of credit; and
(viii) any acceptance of an assumption agreement
releasing a Mortgagor from liability under a Mortgage Loan.
(g) Notwithstanding anything contained in this Agreement to the
contrary, no advice, direction or objection from or by the Majority
Certificateholder of the Controlling Class, as contemplated by this Agreement
may (and the Special Servicer and the Master Servicer shall ignore and act
without regard to any such advice, direction or objection that the Special
Servicer or the Master Servicer, as applicable, has determined, in its
reasonable, good faith judgment, would) (A) require or cause the Master Servicer
or the Special Servicer, as applicable, to violate the terms of any Mortgage
Loan then serviced by it, applicable law or any provision of this Agreement,
including the Master Servicer's obligation or the Special Servicer's obligation
to act in accordance with the Servicing Standard and to maintain the REMIC
status of REMIC I, REMIC II or REMIC III or (B) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (C) expose the Master Servicer, the Special Servicer, the
Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Fiscal Agent
or their officers, directors, employees or agents to any claim, suit or
liability, or (D) materially expand the scope of the Special Servicer's or the
Master Servicer's responsibilities under this Agreement.
SECTION 3.25 Lock-Box Accounts and Servicing Accounts.
(a) The Master Servicer shall administer each Lock-Box Account,
Cash Collateral Account and Servicing Account in accordance with the related
Mortgage Loan, 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 Mortgage Loan, the Special Servicer) shall use reasonable
efforts to establish or cause to be established such Lock-Box Account upon the
occurrence of such events unless the Master Servicer (or the Special Servicer,
as applicable) determines, in accordance with the Servicing Standards, that such
Lock-Box Account should not be established. Notwithstanding the foregoing, the
Master Servicer (or the Special Servicer, as applicable) shall use reasonable
efforts to establish or cause to be established a Lock-Box Account for any ARD
Loan no later than its Anticipated Repayment Date.
SECTION 3.26 Representations and Warranties of the Master
Servicer and the Special Servicer.
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GMACCM, in its capacity as both Master Servicer and Special
Servicer hereunder hereby represents and warrants to the Trustee, for its own
benefit and the benefit of the Certificateholders, and to the Depositor, as of
the Closing Date, that:
(i) GMACCM is a corporation, duly organized, validly
existing and in good standing under the laws of the State of California, and
GMACCM is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to perform its obligations under
this Agreement.
(ii) The execution and delivery of this Agreement by
GMACCM, and the performance and compliance with the terms of this Agreement by
GMACCM, will not violate GMACCM's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material agreement
or other instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) GMACCM has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(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
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the consummation by GMACCM of any transaction contemplated hereby, other than
(1) such consents, approvals, authorizations, qualifications, registrations,
filings, or notices as have been obtained or made and (2) where the lack of such
consent, approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by GMACCM under this
Agreement.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
AND RELATED MATTERS
SECTION 4.01 Distributions.
(a) On each Distribution Date, the Trustee shall be deemed to
apply the Available Distribution Amount (after apportionment of any expenses
under this Agreement properly allocable to the Xxxx REMIC, the Xxxxxxx REMIC,
the Central REMIC, the Gateway REMIC, and the Summit REMIC so as to result in
the deemed payment of the amounts payable with respect to the Regular Interests
of such REMICs to be in accordance with their REMIC Declarations) for such date
for the following purposes and in the following order of priority:
(i) to pay interest to REMIC II in respect of the
various REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest for each such REMIC I
Regular Interest for such Distribution Date and, to the extent not previously
deemed paid, for all prior Distribution Dates;
(ii) to pay principal to REMIC II in respect of the
various REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, in the case of each such REMIC I Regular Interest for such
Distribution Date, the excess, if any, of the Uncertificated Principal Balance
of such REMIC I Regular Interest outstanding immediately prior to such
Distribution Date, over the Stated Principal Balance of the related Mortgage
Loan, REO Loan or, if applicable, Replacement Mortgage Loan(s), as the case may
be, that will be outstanding immediately following such Distribution Date; and
(iii) to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to the various REMIC
I Regular Interests, up to an amount equal to, and pro rata in accordance with,
the Loss Reimbursement Amount for each such REMIC I Regular Interest immediately
prior to such Distribution Date.
On each Distribution Date, the Trustee shall be deemed to apply
any amounts withdrawn from the Excess Liquidation Proceeds Reserve Account for
such Distribution Date to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to the various REMIC
I Regular Interests and unreimbursed pursuant to Section 4.01(a)(iii), up to an
amount equal to, and pro rata in accordance with, the Loss Reimbursement Amount
for each such REMIC I Regular Interest immediately prior to such Distribution
Date.
On each Distribution Date, the Trustee shall pay to the Holders
of the Class R-I Certificates, in accordance with Section 4.01(c), that portion,
if any, of the Available Distribution
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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:
(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); provided, that, (A) with respect to
distributions of principal in respect of REMIC II Regular Interests LA-2-1 and
LA-2-2, the aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests LA-2-1 and LA-2-2 shall correspond with the outstanding Class
Principal Balance of the Class A-2 Certificates and the Uncertificated Principal
Balance of the REMIC II Regular Interest LA-2-2 will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LA-2-1 has
been reduced to zero, (B) with respect to distributions of principal in respect
of REMIC II Regular Interests LA-3-1 and LA-3-2, the aggregate Uncertificated
Principal Balance of the REMIC II Regular Interests LA-3-1 and LA-3-2 shall
correspond with the outstanding Class Principal Balance of the Class A-3
Certificates and the Uncertificated Principal Balance of the REMIC II Regular
Interest LA-3-2 will only be reduced after the Uncertificated Principal Balance
of the REMIC II Regular Interest LA-3-1 has been reduced to zero, and (C) with
respect to distributions of principal in respect of REMIC II Regular Interests
LG-1 and LG-2, the aggregate Uncertificated Principal Balance of the REMIC II
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Regular Interests LG-1 and LG-2 shall correspond with the outstanding Class
Principal Balance of the Class G Certificates and the Uncertificated Principal
Balance of the REMIC II Regular Interest LG-2 will only be reduced after the
Uncertificated Principal Balance of the REMIC II Regular Interest LG-1 has been
reduced to zero; and
(iii) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II Regular
Interests, apportioned among the REMIC II Regular Interests consistent with the
reimbursement payments made on the corresponding Classes of Principal Balance
Certificates on such Distribution Date under Section 4.01(c) below; provided,
that, (A) with respect to REMIC II Regular Interests LA-2-1 and LA-2-2, any
Realized Losses and Additional Trust Fund Expenses shall be allocated and
reimbursed to the REMIC II Regular Interests LA-2-1 and LA-2-2 on a pro rata
basis, (B) with respect to REMIC II Regular Interests LA-3-1 and LA-3-2, any
Realized Losses and Additional Trust Fund Expenses shall be allocated and
reimbursed to the REMIC II Regular Interests LA-3-1 and LA-3-2 on a pro rata
basis, and (C) with respect to REMIC II Regular Interests LG-1 and LG-2, any
Realized Losses and Additional Trust Fund Expenses shall be allocated and
reimbursed first to the REMIC II Regular Interest LG-1 and then to the REMIC II
Regular Interest LG-2.
On each Distribution Date, the Trustee shall be deemed to apply
any amounts withdrawn from the Excess Liquidation Proceeds Reserve Account for
such Distribution Date to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II Regular
Interests and unreimbursed pursuant to Section 4.01(b)(iii), consistent with the
reimbursement payments made on the corresponding Classes of Principal Balance
Certificates on such Distribution Date under Section 4.01(c) below.
On each Distribution Date, the Trustee shall pay to the Holders
of the Class R-II Certificates, in accordance with Section 4.01(c), that
portion, if any, of the REMIC II Distribution Amount for such date that has not
otherwise been deemed paid to REMIC III in respect of the REMIC II Regular
Interests pursuant to the foregoing provisions of this Section 4.01(b) (such
portion, the "Class R-II Distribution Amount" for such Distribution Date).
On each Distribution Date, the Trustee shall be deemed to apply
all amounts relating to Prepayment Premiums then on deposit in the Distribution
Account and received during or prior to the related Collection Period, to pay
additional interest to REMIC III in respect of REMIC II Regular Interests
allocable among the REMIC II Regular Interests in an amount with respect to each
REMIC II Regular Interest equal to the amount allocable to the corresponding
Class of Principal Balance Certificates and Class X Component outstanding after
all subsequent adjustments made on such Distribution Date under Section 4.01(c)
below.
(c) On each Distribution Date, following the deemed payments to
REMIC III in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(b), the Trustee shall withdraw from the Distribution Account the
Available Distribution Amount for such Distribution Date and shall apply such
amount for the following purposes and in the following order of priority:
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(i) to pay interest to the Holders of the respective
Classes of Senior Certificates, in an amount equal to, and pro rata in
accordance with, all Distributable Certificate Interest in respect of each such
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(ii) to pay principal first to the Holders of the Class
A-1 Certificates, second to the Holders of the Class A-2 Certificates and third
to the Holders of the Class A-3 Certificates in each case, up to an amount equal
to the lesser of (1) the then outstanding Class Principal Balance of such Class
of Certificates and (2) the remaining portion, if any, of such Principal
Distribution Amount;
(iii) to reimburse the Holders of the respective Classes
of Class A Certificates, up to an amount equal to and pro rata as among such
Classes in accordance with, the respective amounts of Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to such
Classes of Certificates and for which no reimbursement has previously been paid;
and
(iv) to make payments on the Subordinated Certificates
pursuant to the following paragraph;
provided that, on each Distribution Date after the aggregate of the Class
Principal Balances of the Subordinated Certificates has been reduced to zero,
and in any event on the Final Distribution Date, the payments of principal to be
made pursuant to clause (ii) above, will be so made to the Holders of the
respective Classes of Class A Certificates, up to an amount equal to, and pro
rata as among such Classes in accordance with, the respective then outstanding
Class Principal Balances of such Classes of Certificates. References to
"remaining Principal Distribution Amount" shall be to the Principal Distribution
Amount net of any distributions of principal made in respect thereof to the
Holders of each Class of Class A Certificates that, pursuant to clause (ii)
above, have a prior right to payment with respect thereto.
On each Distribution Date, following the foregoing series of
payments on the Senior Certificates, the Trustee shall apply the remaining
portion, if any, of the Available Distribution Amount for such date for the
following purposes and in the following order of priority:
(i) to pay interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(ii) if the Class Principal Balances of the Class A
Certificates have been reduced to zero, to pay principal to the Holders
of the Class B Certificates, up to an amount equal to the lesser of (A)
the then outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Principal Distribution Amount for
such Distribution Date;
(iii) to reimburse the Holders of the Class B
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any,
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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;
(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,
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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;
(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,
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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 pay interest to the Holders of the Class P
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class P Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xli) if the Class Principal Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M , Class N and Class O Certificates have been
reduced to zero, to pay principal to the Holders of the Class P
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class P Certificates and
(B) the remaining Principal Distribution Amount for such Distribution
Dates;
(xlii) to reimburse the Holders of the Class P
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to
such Class P Certificates and for which no reimbursement has previously
been received;
(xliii) to make payments to the Holders of the Class R-I
Certificates up to the amount of the Class R-I Distribution Amount for
such Distribution Date;
(xliv) to make payments to the Holders of the Class R-II
Certificates up to the amount of the Class R-II Distribution Amount for
such Distribution Date; and
(xlv) to pay to the Holders of the Class R-III
Certificates the balance, if any, of the Available Distribution Amount
for such Distribution Date;
provided that, on the Final Distribution Date, the payments of principal to be
made pursuant to any of clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii) and (xli) above with respect
to any Class of Principal Balance Certificates, will be so made to the Holders
thereof, up to an amount equal to the entire then outstanding Class Principal
Balance of such Class of Certificates. References to "remaining Principal
Distribution Amount" in any of clauses (ii), (v), (viii), (xi), (xiv), (xvii),
(xx), (xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii) and (xli) above, in
connection with the payments of principal to be made to the Holders of any Class
of Principal Balance Certificates, shall be to the Principal Distribution Amount
for such Distribution Date, net of any payments of principal made in respect
thereof to the Holders of each Class of Principal Balance Certificates that have
a higher Payment Priority.
On each Distribution Date, the Trustee shall withdraw any
amounts then on deposit in the Distribution Account that represent Prepayment
Premiums collected during or
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prior to the related Collection Period and shall distribute such amounts, in
each case, subject to available funds, as additional interest, as follows:
(i) to the Holders of the Class A, Class B, Class C,
Class D, Class E, Class F, Class G and Class H Certificates up to an amount
equal to, in the case of each such Class, the product of (a) such Prepayment
Premiums, (b) the applicable Discount Rate Fraction and (c) the Principal
Allocation Fraction of such Class; and
(ii) then, to the Holders of the Class X-1 Certificates.
All of the foregoing distributions to be made from the
Distribution Account on any Distribution Date with respect to the REMIC III
Certificates shall be deemed made from the payments deemed made to REMIC II in
respect of the REMIC II Regular Interests on such Distribution Date pursuant to
Section 4.01(b).
On each Distribution Date, the Trustee shall withdraw from the
Distribution Account, as Grantor Trust Assets, any amounts that represent Excess
Interest actually collected on any ARD Loans and any related REO Loans during
the related Collection Period and shall distribute with respect to their
interests in the Grantor Trust, such amounts to the holders of the Class P
Certificates, without regard to whether any such Class is entitled to
distributions of interest or principal on such Distribution Date (whether by
reason of its Class Principal Balance having been reduced to zero, by reason of
it not yet being entitled to distributions of principal, or for any other
reason).
On each Distribution Date, the Trustee shall withdraw amounts
from the Excess Liquidation Proceeds Reserve Account and shall distribute such
amounts in the following priority:
(i) first, to reimburse the Holders of the Principal
Balance Certificates (in order of alphabetical Class designation) up to an
amount equal to all Realized Losses or Additional Trust Fund Expenses, if any,
previously deemed allocated to them and unreimbursed after application of the
Available Distribution Amount for such Distribution Date;
(ii) second, for distribution to the Special Servicer as
additional servicing compensation, the excess, if any, of (x) the balance of the
Excess Liquidation Proceeds Reserve Account on such Distribution Date over (y)
the aggregate Certificate Principal Balance of the Principal Balance
Certificates as of such Distribution Date;
(iii) third, upon the reduction of the aggregate Class
Principal Balance of the Principal Balance Certificates to zero, to pay any
amounts remaining on deposit in such account to the Special Servicer as
additional compensation.
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided in the last paragraph of Section 4.01(c) or as provided
below, all such distributions with respect to each Class on each Distribution
Date shall be made to the Certificateholders of the respective Class of record
at the close of business on the related Record Date and shall be made by wire
transfer of immediately
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available funds to the account of any such Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent Distribution Dates) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution. Any
distribution that is to be made with respect to a Certificate in reimbursement
of a Realized Loss or Additional Trust Fund Expense previously allocated
thereto, which reimbursement is to occur after the date on which such
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Certificateholder that surrendered
such Certificate as such address last appeared in the Certificate Registrar or
to any other address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer or the Special
Servicer shall have any responsibility therefor except as otherwise provided by
this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(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
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surrender of such Certificates at the offices of the Certificate Registrar or
such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and
after the applicable Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates, shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute all unclaimed
funds and other assets which remain subject hereto in accordance with applicable
laws.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. All amounts withheld shall be deemed to have been paid to
such Certificateholders.
SECTION 4.02 Statements to Certificateholders; Certain Reports by
the Master Servicer and the Special Servicer.
(a) Subject to Section 8.02(v), based on information received from
the Master Servicer, on each Distribution Date, the Trustee shall provide or
make available as provided herein to all of the Holders of each Class of
Certificates (and, in the case of a Class of Book-Entry Certificates, to each
Person that provides the Trustee with an Investor Certification), to the parties
hereto and to the Rating Agencies written reports, including reports in
substantially the form attached hereto as Exhibit G (the "Distribution Date
Statement"), setting forth, among other things, the following information:
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(A) the amount of distributions, if any, made on such
Distribution Date to the holders of each Class of Principal Balance
Certificates and applied to reduce the respective Class Principal
Balances thereof;
(B) the amount of distributions, if any, made on such
Distribution Date to the Holders of each Class of REMIC III Regular
Certificates allocable to (A) Distributable Certificate Interest,
(B) Prepayment Premiums and (C) Excess Interest;
(C) the amount of any distributions made on such Distribution
Date to the Holders of each Class of Residual Certificates;
(D) the aggregate amount of outstanding Delinquency Advances
as of the related Determination Date;
(E) the aggregate amount of Servicing Fees retained by or paid
to the Master Servicer and the Special Servicer in respect of the
related Collection Period;
(F) the aggregate Stated Principal Balance of the Mortgage
Pool immediately before and after such Distribution Date and the
percentage of the Cut-off Date Principal Balance of the Mortgage
Pool which remains outstanding immediately after such Distribution
Date;
(G) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
outstanding Mortgage Loans in the Mortgage Pool at the close of
business on the related Determination Date;
(H) as of the Determination Date, the number and aggregate
unpaid principal balance of Mortgage Loans in the Mortgage Pool (A)
delinquent one month, (B) delinquent two months, (C) delinquent
three or more months, (D) that are Specially Serviced Mortgage Loans
but are not delinquent or (E) as to which foreclosure proceedings
have been commenced;
(I) with respect to the Mortgage Pool, the aggregate Stated
Principal Balance of Mortgage Loans as to which the related borrower
is subject or is expected to be subject to a bankruptcy proceeding;
(J) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related
Collection Period, the Stated Principal Balance and unpaid principal
balance of such Mortgage Loan as of the date such Mortgaged Property
became an REO Property and the most recently determined Appraised
Value and date upon which the Appraisal was performed;
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(K) as to any Mortgage Loan repurchased or otherwise
liquidated or disposed of during the related Collection Period, the
loan number thereof and the amount of any Liquidation Proceeds
and/or other amounts, if any, received thereon during the related
Collection Period and the portion thereof included in the Available
Distribution Amount for such Distribution Date;
(L) with respect to any REO Property included in the Trust
Fund as of the close of business on the last day of the related
Collection Period, the loan number of the related Mortgage Loan, the
book value of such REO Property and the amount of any income
collected with respect to such REO Property (net of related
expenses) and other amounts, if any, received on such REO Property
during the related Collection Period and the portion thereof
included in the Available Distribution Amount for such Distribution
Date and the most recently determined Appraised Value and date upon
which the Appraisal was performed;
(M) with respect to any REO Property sold or otherwise
disposed of during the related Collection Period, the loan number of
the related Mortgage Loan, and the amount of Liquidation Proceeds
and other amounts, if any, received in respect of such REO Property
during the related Collection Period, the portion thereof included
in the Available Distribution Amount for such Distribution Date and
the balance of the Excess Liquidation Proceeds Reserve Account for
such Distribution Date;
(N) the Distributable Certificate Interest in respect of each
Class of REMIC III Regular Certificates for such Distribution Date;
(O) any unpaid Distributable Certificate Interest in respect
of each Class of REMIC III Regular Certificates after giving effect
to the distributions made on such Distribution Date;
(P) the Pass-Through Rate for each Class of REMIC III Regular
Certificates for such Distribution Date;
(Q) the original Class Principal Balance or Class Notional
Amount as of the Closing Date and the Class Principal Balance or
Class Notional Amount, as the case may be, of each Class of REMIC
III Regular Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction in the
Class Principal Balance or Class Notional Amount, as the case may
be, of each such Class due to Realized Losses and Additional Trust
Fund Expenses;
(R) the Certificate Factor for each Class of REMIC III Regular
Certificates immediately following such Distribution Date;
(S) the Principal Distribution Amount for such Distribution
Date;
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(T) the aggregate amount of Principal Prepayments made during
the related Collection Period, and the aggregate amount of any
Prepayment Interest Excesses received and Prepayment Interest
Shortfalls incurred in connection therewith;
(U) the aggregate amount of Realized Losses and Additional
Trust Fund Expenses, if any, incurred with respect to the Trust Fund
during the related Collection Period;
(V) any Appraisal Reduction Amounts on a loan-by-loan basis,
and the total Appraisal Reduction Amounts, as of the related
Determination Date; and
(W) such additional information as contemplated by Exhibit G
hereto.
In the case of information furnished pursuant to subclauses (A), (B), (C) and
(Q) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per single Certificate of a
specified minimum denomination. The form of any Distribution Date Statement may
change over time.
The Trustee shall make available each month to any interested person
the related Distribution Date Statement, the CMSA Bond Level File, the CMSA
Collateral Summary File and the CMSA Loan Setup File via its internet website
initially located at "xxx.xxxxxxxx.xxx". In addition, the Trustee shall make
available each month, on a restricted basis, solely to each Privileged Person,
(i) the CMSA Loan Periodic Update File delivered for each Distribution Date, the
CMSA Property File, the CMSA Comparative Financial Status Report and the CMSA
Financial File, (ii) the Servicer Reports, and (iii) as a convenience to such
Privileged Persons (and not in furtherance of the distribution thereof under the
securities laws), the Prospectus and this Agreement. At the direction of the
Depositor, the Trustee shall remove any or all of such restrictions and make any
or all of such information available to any person. The Trustee makes no
representations or warranties as to the accuracy or completeness of such
information and assumes no responsibility therefor. In addition, the Trustee may
disclaim responsibility for any information distributed by the Trustee for which
it is not the original source. In connection with providing access to the
Trustee's internet website, the Trustee may require registration and acceptance
of a disclaimer. The Trustee shall not be liable for the dissemination of
information in accordance with this Agreement.
The Trustee may provide such information through means other than (and
in lieu of) its website provided that (i) GMACCM shall have consented to such
alternative means and (ii) Certificateholders shall have received notice of such
alternative means.
The provisions in this Section shall not limit the Master Servicer's
ability to make accessible certain information regarding the Mortgage Loans 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
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Certificate a statement containing the information as to the applicable Class
set forth in clauses (A), (B) and (C) of the description of Distribution Date
Statements above aggregated for such calendar year or applicable portion thereof
during which such person was a Certificateholder, together with such other
information as the Trustee determines to be necessary to enable
Certificateholders to prepare their tax returns for such calendar year. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code as from time to time are in force.
Upon filing with the Internal Revenue Service, the Trustee shall
furnish to the Holders of the Residual Certificates the Form 1066 and shall
furnish their respective Schedules Q thereto at the times required by the Code
or the Internal Revenue Service, and shall provide from time to time such
information and computations with respect to the entries on such forms as any
Holder of the Residual Certificates may reasonably request.
The specification of information to be furnished by the Trustee to the
Certificateholders in this Section 4.02 (and any other terms of this Agreement
requiring or calling for delivery or reporting of information by the Trustee to
Certificateholders and Certificate Owners) shall not limit the Trustee in
furnishing, and the Trustee is hereby authorized to furnish, to
Certificateholders, Certificate Owners and/or to the public any other
information (such other information, collectively, "Additional Information")
with respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund
as may be provided to it by the Depositor, the Master Servicer or the Special
Servicer or gathered by it in any investigation or other manner from time to
time, provided that (A) while there exists any Event of Default, any such
Additional Information shall only be furnished with the consent or at the
request of the Depositor (except pursuant to clause (E) below), (B) the Trustee
shall be entitled to indicate the source of all information furnished by it, and
the Trustee may affix thereto any disclaimer it deems appropriate in its sole
discretion (together with any warnings as to the confidential nature and/or the
uses of such information as it may, in its sole discretion, determine
appropriate), (C) the Trustee may notify Certificateholders and Certificate
Owners of the availability of any such information in any manner as it, in its
sole discretion, may determine, (D) the Trustee shall be entitled (but not
obligated) to require payment from each recipient of a reasonable fee for, and
its out-of-pocket expenses incurred in connection with, the collection,
assembly, reproduction or delivery of any such Additional Information, (E)
without the consent of the Depositor, the Trustee may, in its sole discretion,
furnish Additional Information to a Rating Agency in any instance, and to the
Certificateholders, Certificate Owners and/or the public-at-large if it
determines that the furnishing of such information would assist in the
evaluation of the investment characteristics or valuation of the Certificates or
would be in the best interests of the Certificateholders or is required by
applicable law and, in the case of any Additional Information requested by a
Certificate Owner or Certificateholder, such Certificate Owner or
Certificateholder has delivered an executed certificate in the form of Exhibit H
hereto and (F) the Trustee shall be entitled to distribute or make available
such Additional Information in accordance with such reasonable rules and
procedures as it may deem necessary or appropriate (which may include the
requirement that an agreement that provides such information shall be used
solely for purposes of evaluating the investment characteristics or valuation of
the Certificates be executed by the recipient, if and to the extent the Trustee
deems the same to be necessary or appropriate). Nothing herein shall be
construed to impose upon the Trustee any
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obligation or duty to furnish or distribute any Additional Information to any
Person in any instance, and the Trustee shall neither have any liability for
furnishing nor for refraining from furnishing Additional Information in any
instance. The Trustee shall be entitled (but not required) to request and
receive direction from the Depositor as to the manner of delivery of any such
Additional Information, if and to the extent the Trustee deems necessary or
advisable, and to require that any consent, direction or request given to it
pursuant to this Section be made in writing.
Upon the authorization of the Depositor, the Trustee shall make
available to Bloomberg Financial Markets, L.P. ("Bloomberg") or such other
vendor chosen by the Depositor, all the electronic reports delivered or made
available pursuant to this Section 4.02(a)(i) to the Certificateholders and
Certificate Owners using a format and media mutually acceptable to the Trustee
and Bloomberg.
(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 CMSA Delinquent Loan Status Report, (2)
a CMSA REO Status Report, (3) a CMSA Historical Loan Modification Report, (4) a
CMSA Historical Liquidation Report, (5) the CMSA Servicer Watch List, (6) the
CMSA Financial File, (7) the CMSA Property File and (8) the CMSA Comparative
Financial Status Report.
No later than the Business Day prior to each Distribution Date, the
Master Servicer will deliver to the Trustee (by electronic means) the CMSA
Comparative Financial Status Report for each Mortgage Loan (other than any
Credit Lease Loans) or related Mortgaged Property as of the Determination Date
immediately preceding the preparation of such report for each of the following
three periods (but only to the extent the related borrower is required by the
Mortgage to deliver and does deliver, or otherwise agrees to provide and does
provide, such information): (a) the most current available year-to-date; (b)
each of the previous two full fiscal years stated separately (to the extent such
information is in the Master Servicer's possession); and (c) the "base year"
(representing the original analysis of information used as of the Cut-Off Date).
No later than 12:00 noon, New York City time, on the second Business
Day prior to each Distribution Date, the Master Servicer will deliver to the
Trustee a CMSA Loan Periodic Update 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
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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 (E) - (M) and (S) - (W) 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)(i), and
(ii) an updated Mortgage Loan Schedule, in each case reflecting the changes in
the Mortgage Pool during the related Collection Period.
In addition, the Master Servicer is also required to perform with
respect to each Mortgaged Property and REO Property (except any Mortgaged
Property securing any Credit Lease Loan):
(1) Within 30 days after receipt of a quarterly operating statement, if
any, commencing with the calendar quarter ended June 30, 2002, a CMSA Operating
Statement Analysis Report presenting the computation made in accordance with the
methodology set forth in Exhibit F (but only to the extent the related borrower
is required by the Mortgage to deliver and does deliver, or otherwise agrees to
provide and does provide, such information) for such Mortgaged Property or REO
Property as of the end of such calendar quarter. The Master Servicer will
deliver to the Trustee by electronic means the CMSA Operating Statement Analysis
Report upon request; and
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(2) Within 30 days after receipt by the Master Servicer of an annual
operating statement, a CMSA NOI Adjustment Worksheet (but only to the extent the
related borrower is required by the Mortgage to deliver and does deliver, or
otherwise agrees to provide and does provide, such information), presenting the
computation made in accordance with the methodology described in Exhibit F to
"normalize" the full year net operating income and debt service coverage numbers
used by the Master Servicer in preparing the CMSA Comparative Financial Status
Report above. The Master Servicer will deliver to the Trustee by electronic
means the CMSA NOI Adjustment Worksheet upon request.
Upon request, the Trustee shall deliver or shall cause to be delivered to each
Certificateholder, to each party hereto, to any Underwriter, to the Rating
Agencies, and to each Person that provides the Trustee with an Investor
Certification a copy of the CMSA Operating Statement Analysis Report and CMSA
NOI Adjustment Worksheet most recently performed by the Master Servicer with
respect to any Mortgage Loan and delivered to the Trustee.
Upon request (and in any event, not more frequently than once per
month), the Master Servicer shall forward to the Trustee a statement, setting
forth the status of the Certificate Account as of the close of business on such
Master Servicer Remittance Date, stating that all remittances to the Trustee
required by this Agreement to be made by the Master Servicer have been made (or,
in the case of any such required remittance that has not been made by the Master
Servicer, specifying the nature and status thereof) and showing, for the period
from the preceding Master Servicer Remittance Date (or, in the case of the first
Master Servicer Remittance Date, from the Cut-off Date) to such Master Servicer
Remittance Date, the aggregate of deposits into and withdrawals from the
Certificate Account for each category of deposit specified in Section 3.04(a)
and each category of withdrawal specified in Section 3.05(a). The Master
Servicer shall also deliver to the Trustee, upon reasonable request of the
Trustee, any and all additional information relating to the Mortgage Pool in the
possession of the Master Servicer (which 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 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.
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(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.
(f) The Master Servicer or the Special Servicer, as applicable, may,
from time to time in its sole discretion, answer questions from a Certificate
Owner which pertain to the performance and servicing of the Mortgage Loans
and/or REO Properties for which the Master Servicer or Special Servicer, as the
case may be, is responsible. The Master Servicer or the Special Servicer, as
applicable, as a condition to answering such questions, shall require, among
other things, that the Certificate Owner enter into a confidentiality agreement
with the Master Servicer or the Special Servicer, as the case may be, in the
form attached hereto as Exhibit H-2 and sign an Investor Certification in the
form attached hereto as Exhibit H-1. Neither the Master Servicer nor the Special
Servicer shall provide any information or disclosures in violation of any
applicable law, rule or regulation.
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
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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). If the Trustee fails to make a Delinquency Advance required to
be made by it hereunder, the Fiscal Agent shall make such advance no later than
1:00 p.m. New York City time on the Business Day immediately following such
Master Servicer Remittance Date. The making of such Advance by the Fiscal Agent
shall cure the failure by the Trustee to make such Advance.
(b) The aggregate amount of Delinquency Advances to be made by the
Master Servicer in respect of the Mortgage Loans (including, without limitation,
Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Loans for any Distribution Date shall
equal, subject to subsection (c) below, the aggregate of all Monthly Payments
(other than Balloon Payments) and any Assumed Monthly Payments, in each case net
of related Workout Fees payable hereunder, that were due or deemed due, as the
case may be, in respect thereof on their respective Due Dates during the same
month as such Distribution Date and that were not paid by or on behalf of the
related Mortgagors or otherwise collected as of the close of business on the
later of the related Due Date or the last day of the related Collection Period.
Notwithstanding the foregoing, if an Appraisal Reduction Amount exists with
respect to any Mortgage Loan that is a Required Appraisal Loan, then, in the
event of subsequent delinquencies thereon, the interest portion of the
Delinquency Advance in respect of such Required Appraisal Loan for the related
Distribution Date shall be reduced (it being herein acknowledged that there
shall be no reduction in the principal portion of such Delinquency Advance) by
the product of (i) the amount of the interest portion of such Delinquency
Advance for such Required Appraisal Loan for such Distribution Date without
regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the Stated Principal Balance of
such Required Appraisal Loan immediately prior to such Distribution Date, net of
the related Appraisal Reduction Amount, if any, and the
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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 or Fiscal Agent, that it has made a Nonrecoverable
Delinquency Advance or that any proposed Delinquency Advance, if made, would
constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an
Officer's Certificate delivered promptly (and, in any event, in the case of a
proposed Delinquency Advance to be made by the Master Servicer, no less than two
Business Days prior to the related Delinquency Advance Date) by the Master
Servicer to the Trustee (or, if applicable, retained thereby) and the Depositor,
setting forth the basis for such determination, together with (if such
determination is prior to the liquidation of the related Mortgage Loan or REO
Property) a copy of an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, which shall have been performed within the twelve
months preceding such determination, and further accompanied by any other
information that the Master Servicer or the Special Servicer may have obtained
and that supports such determination. If such an Appraisal shall not have been
required and performed pursuant to the terms of this Agreement, the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the case may
be, may, subject to its reasonable and good faith determination that such
Appraisal will demonstrate the nonrecoverability of the related Advance, obtain
an Appraisal for such purpose at the expense of the Trust Fund. The Trustee and
the Fiscal Agent shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular Delinquency Advance, and the Master
Servicer shall be entitled to rely on any determination of nonrecoverability
that may have been made by the Special Servicer with respect to a particular
Delinquency Advance.
(d) The Master Servicer, the Trustee and the Fiscal Agent shall each be
entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each Delinquency Advance made thereby (out of its
own funds) for so long as such Delinquency Advance is outstanding (or, if any
Delinquency Advance is required to be made in respect of a Monthly Payment on
any Mortgage Loan prior to its Due Date or the end of the grace period for such
Monthly Payment, for so long as such Delinquency Advance is outstanding
following the later of (i) such Due Date and (ii) the end of such grace period),
payable first, out of Penalty Charges received on the Mortgage Loan or REO Loan
as to which such Delinquency Advance was made and, then, once such Delinquency
Advance has been reimbursed, out of general collections on the Mortgage Loans
and REO Properties pursuant to Section 3.05(a).
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Regular Interests pursuant to Section 4.01(a),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced to equal the
Stated Principal Balance of the related Mortgage
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Loan or REO Loan or, if applicable, Replacement Mortgage Loan(s) that will be
outstanding immediately following such Distribution Date. Such reductions shall
be deemed to be an allocation of Realized Losses and Additional Trust Fund
Expenses.
(b) On each Distribution Date, following the payments deemed to be made
to REMIC III in respect of the REMIC II Regular Interests on such date pursuant
to Section 4.01(b), the Trustee shall determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of REMIC II Regular
Interests XX-0, XX-0-0, XX-0-0, , XX-0-0, XX-0-0, LB, LC, LD, LE, LF, XX-0,
XX-0, XX, XX, XX, XX, XX, LN, LO and LP exceeds (ii) an amount equal to the
aggregate Stated Principal Balance that will be outstanding immediately
following such Distribution Date. If such excess does exist, then the respective
Uncertificated Principal Balances of such REMIC II Regular Interests shall be
reduced such that the Uncertificated Principal Balance of each REMIC II Regular
Interest corresponds with the Certificate Principal Balance of the corresponding
Class of Principal Balance Certificates outstanding after the subsequent
adjustments made on such Distribution Date under Section 4.04(c) below; provided
that (A) the aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests LA-2-1 and LA-2-2 shall correspond with the Certificate Principal
Balance of the Class A-2 Certificates and the Uncertificated Principal Balances
of the REMIC II Regular Interests LA-2-1 and LA-2-2 shall be reduced on a pro
rata basis, (B) the aggregate Uncertificated Principal Balance of the REMIC II
Regular Interests LA-3-1 and LA-3-2 shall correspond with the Certificate
Principal Balance of the Class A-3 Certificates and the Uncertificated Principal
Balances of the REMIC II Regular Interests LA-3-1 and LA-3-2 shall be reduced on
a pro rata basis, and (C) the aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests LG-1 and LG-2 shall correspond with the Certificate
Principal Balance of the Class G Certificates and the Uncertificated Principal
Balances of the REMIC II Regular Interests LG-1 and LG-2 shall be reduced on a
pro rata basis.
(c) On each Distribution Date, following the distributions to be made
to the Certificateholders on such date pursuant to Section 4.01(c), the Trustee
shall determine the amount, if any, by which (i) the then aggregate Certificate
Principal Balance of the Principal Balance Certificates, exceeds (ii) the
aggregate Stated Principal Balance of the Mortgage Loans that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class P, Class O, Class N, Class
M, Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D, Class
C and Class B Certificates shall be reduced sequentially, in that order, in each
case, until the first to occur of such excess being reduced to zero or the
related Class Principal Balance being reduced to zero. If, after the foregoing
reductions, the amount described in clause (i) of the second preceding sentence
still exceeds the amount described in clause (ii) of the second preceding
sentence, then the respective Class Principal Balances of the Class A-1 and
Class A-2 Certificates shall be reduced, pro rata in accordance with the
relative sizes of the then outstanding Class Principal Balances of such Classes
of Certificates, until the first to occur of such excess being reduced to zero
or each such Class Principal Balance being reduced to zero. Such reductions in
the Class Principal Balances of the respective Classes of Principal Balance
Certificates shall be deemed to be allocations of Realized Losses and Additional
Trust Fund Expenses.
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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-22. The Certificates will be issuable
in registered form only; provided, however, that in accordance with Section 5.03
beneficial ownership interests in the Certificates, other than the Residual
Certificates, shall initially be held and transferred through the book-entry
facilities of the Depository. The Residual Certificates will be issued as
Definitive Certificates. The REMIC III Regular Certificates will be issuable in
denominations corresponding to initial Certificate Principal Balances or
Certificate Notional Amounts, as the case may be, as of the Closing Date of not
less than $25,000 in the case of the Class A-1, Class A-2, Class A-3, Class B,
Class C and Class D Certificates, $100,000 in the case of the Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class
P Certificates, and $1,000,000 in the case of the Class X Certificates, and in
each such case in any whole dollar denomination in excess thereof; provided,
however, that a single Certificate of each Class thereof may be issued in a
different denomination. The Residual Certificates will be issuable only in
denominations representing Percentage Interests of not less than 20% in the
related Class.
(b) The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee in its capacity as trustee hereunder by an authorized
signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized signatories of the Trustee shall
be entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such positions prior to the authentication and delivery of such
Certificates or did not hold such positions at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, however, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Master Servicer and the Special Servicer, any
other bank or trust company to act as Certificate Registrar under
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such conditions as the predecessor Certificate Registrar may prescribe, provided
that the predecessor Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment. If the
Trustee resigns or is removed in accordance with the terms hereof, the successor
trustee shall immediately succeed to its predecessor's duties as Certificate
Registrar. The Depositor, the Master Servicer and the Special Servicer, shall
have the right to inspect the Certificate Register or to obtain a copy thereof
at all reasonable times, and to rely conclusively upon a certificate of the
Certificate Registrar as to the information set forth in the Certificate
Register.
(b) No transfer of any Non-Registered Certificate shall be made unless
such transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made to a Qualified Institutional Buyer in
accordance with Rule 144A promulgated under the Securities Act in a transaction
that does not require such registration or qualification. If such a transfer is
to be made without registration under the Securities Act, other than a transfer
by the Depositor or an Affiliate thereof, then the Trustee shall require, in
order to assure compliance with such laws, receipt by it and the Depositor of a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit B-1 hereto and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached as Exhibit B-2 hereto.
Notwithstanding the foregoing, transfers of a beneficial interest in
any Class (or portion thereof) of Non-Registered Certificates (other than the
Residual Certificates) in accordance with the rules and procedures of the
Depository applicable to transfers by its respective participants will be
permitted if such transfer is made to a Qualified Institutional Buyer in
accordance with Rule 144A promulgated under the Securities Act.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate without registration or qualification. Any Holder of
a Non-Registered Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositor, the Trustee and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(c) (i) No transfer of a Senior Certificate or a Class B, Class C,
Class D, Class E, Class F, Class G or Class H Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or Section 4975
of the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless (1) such Plan
qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D
of the Securities Act, and at the time of such transfer, such Certificates
continue to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60 (as
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defined below)) and the conditions set forth in Sections I and III of PTCE 95-60
have been satisfied as of the date of acquisition of such Certificate. Each
purchaser or transferee that is a Plan or is investing on behalf of or with
"plan assets" of a Plan will be deemed to have represented that the foregoing
conditions have been satisfied.
(ii) No transfer of a Residual Certificate or any interest
therein shall be made (A) to any Plan or (B) to any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with "plan assets" of a Plan. No transfer
of a Class J, Class K, Class L, Class M, Class N, Class O or Class P Certificate
or any interest therein shall be made (A) to any Plan or (B) to any Person who
is directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a Plan
unless the prospective transferee of any such Certificate or any interest
therein provides a certification of facts to the Depositor, the Master Servicer
and the Trustee substantially to the effect that (or, if such Certificate is not
in certificated form, will be deemed to represent that) the purchase of such
Certificate by or on behalf of, or with "plan assets" of, such Plan is
permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will
not subject the Depositor, the Trustee or the Master Servicer to any obligation
in addition to those undertaken herein, and the following conditions are met:
(1) such Plan qualifies as an accredited investor as defined in Rule 501(a)(1)
of Regulation D of the Securities Act, (2) the source of funds used to purchase
such Certificate is an "insurance company general account" (as such term is
defined in United States Department of Labor Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and (3) the conditions set forth in Sections I
and III of PTCE 95-60 have been satisfied as of the date of the acquisition of
such Certificates. Any purchaser of a Class J, Class K, Class L, Class M, Class
N, Class O or Class P Certificate or any interest therein will be deemed to have
represented by such purchase that either (a) such purchaser is not a Plan and is
not purchasing such Certificates by or on behalf of, or with "plan assets" of,
any Plan or (b) the purchase of any such Certificate by or on behalf of, or with
"plan assets" of, such Plan is permissible under applicable law, will not result
in any non-exempt prohibited transaction under ERISA or Section 4975 of the
Code, and will not subject the Depositor, the Trustee or the Master Servicer to
any obligation in addition to those undertaken herein, and the following
conditions are met: (i) such Plan qualifies as an accredited investor as defined
in Rule 501(a)(1) of Regulation D of the Securities Act, (ii) the source of
funds used to purchase such Certificate is an "insurance company general
account" (as such term is defined in PTCE 95-60) and (iii) the conditions set
forth in Sections I and III of PTCE 95-60 have been satisfied as of the date of
the acquisition of such Certificates. The Trustee may require that any
prospective transferee of a Certificate that is held as a Definitive Certificate
provide such certifications as the Trustee may deem desirable or necessary in
order to establish that such transferee or the Person in whose name such
registration is requested is not a Plan or a Person who is directly or
indirectly purchasing such Certificate on behalf of, as named fiduciary of, as
trustee of, or with "plan assets" of a Plan or that the conditions of an
acceptable alternative have been satisfied. The Trustee shall not have any
responsibility to monitor or restrict the transfer of Ownership Interests in any
Certificates that are in the form of a Book-Entry Certificate.
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the
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Trustee under clause (ii)(A) below to deliver payments to a Person other than
such Person and to have irrevocably authorized the Trustee under clause (ii)(B)
below to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. The rights of each Person acquiring any Ownership Interest in a
Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and a United
States Person and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall require
delivery to it, and no Transfer of any Residual Certificate shall be
registered until the Trustee receives, an affidavit and agreement
substantially in the form attached hereto as Exhibit C-1 (a
"Transfer Affidavit and Agreement") from the proposed Transferee, in
form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the
Residual Certificate that is the subject of the proposed Transfer as
a nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in
a Residual Certificate, it will endeavor to remain a Permitted
Transferee, that it is a United States Person, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Trustee has actual knowledge that the proposed Transferee is not a
Permitted Transferee or is not a United States Person, no Transfer
of an Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit and Agreement from any prospective Transferee to whom such
Person attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Trustee a certificate
substantially in the form attached hereto as Exhibit C-2 stating
that, among other things, it has no actual knowledge that 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-
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through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it is, or is
holding an Ownership Interest in a Residual Certificate on behalf
of, a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section 5.02(d) or
if any Holder of a Residual Certificate shall lose its status as a Permitted
Transferee or a United States Person, then the last preceding Holder of such
Residual Certificate that was in compliance with the provisions of this Section
5.02(d) shall be restored, to the extent permitted by law, to all rights as
Holder thereof retroactive to the date of registration of such Transfer of such
Residual Certificate. None of the Trustee, the Master Servicer, the Special
Servicer or the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact not
permitted by this Section 5.02(d) or for making any payments due on such
Certificate to the Holder thereof or for taking any other action with respect to
such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 5.02(d), or if any Holder of a Residual Certificate shall
lose its status as a Permitted Transferee or a United States Person,
and to the extent that the retroactive restoration of the rights of
the prior Holder of such Residual Certificate as described in clause
(ii)(A) above shall be invalid, illegal or unenforceable, then the
Trustee shall have the right, without notice to the Holder or any
prior Holder of such Residual Certificate, to sell such Residual
Certificate to a purchaser selected by the Trustee on such terms as
the Trustee may choose. Such non-complying Holder shall promptly
endorse and deliver such Residual Certificate in accordance with the
instructions of the Trustee. Such purchaser may be the Trustee
itself or any Affiliate of the Trustee. The proceeds of such sale,
net of the commissions (which may include commissions payable to the
Trustee or its Affiliates), expenses and taxes due, if any, will be
remitted by the Trustee to such non-complying Holder. The terms and
conditions of any sale under this clause (ii)(B) shall be determined
in the sole discretion of the Trustee, and the Trustee shall not be
liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(iii) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, all information
necessary to compute any tax imposed (A) as a result of the Transfer of an
Ownership Interest in a Residual Certificate to any Person who is not a
Permitted Transferee, including the information described in Treasury
Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5)with respect to the
"excess inclusions" of such Residual Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Residual Certificate having as
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among its record holders at any time any Person which is not a Permitted
Transferee. The Person holding such Ownership Interest shall be responsible for
the reasonable compensation of the Trustee for providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to this
subsection (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee and the Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then-current rating of any Class of Certificates;
and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee and the Depositor, to the effect that such
modification of, addition to or elimination of such provisions will
not cause any of REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused
by the Transfer of any Residual Certificate to a Person which is not
a Permitted Transferee, or cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Residual Certificate to a Person which is not a
Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the offices of the Certificate
Registrar maintained for such purpose, the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(g) Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Trustee or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Trustee and the Certificate Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
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(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
(j) Upon request, the Certificate Registrar shall provide the Master
Servicer, the Special Servicer and the Depositor with an updated copy of the
Certificate Register on or about January 1 and July 1 of each year, commencing
January 1, 2003.
SECTION 5.03 Book-Entry Certificates.
(a) Each Class of Certificates other than the Residual Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in subsection (c) below
shall not be entitled to definitive, fully registered Certificates ("Definitive
Certificates") in respect of such Ownership Interests. The Trustee shall not
have any responsibility to monitor or restrict the transfer of Ownership
Interests in any Book-Entry Certificate. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
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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, the Fiscal Agent or the Certificate Registrar shall be liable for
any delay in delivery of such instructions, and each may conclusively rely on,
and shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates for purposes of evidencing ownership of the Registered
Certificates held in book-entry form, the registered holders of such Definitive
Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
actual notice to the Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of the same Class and like Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Trustee and the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the applicable
REMIC, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.05 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the person in whose name such Certificate is registered as of the related
Record Date as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.01 and for all other purposes whatsoever,
except as and to the extent provided in the definition of "Certificateholder",
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any agent of any of them shall be affected
by notice to the contrary except as provided in Section 5.02(d).
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer and the Special Servicer; Assignment of Rights and Delegation of
Duties by the Master Servicer and the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Master Servicer
and the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation, and each will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) The Depositor, the Master Servicer and the Special Servicer may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person, in which case any Person resulting from any
merger or consolidation to which the Depositor, the Master Servicer or the
Special Servicer shall be a party, or any Person succeeding to the business of
the Depositor, the Master Servicer and the Special Servicer, shall be the
successor of the Depositor, the Master Servicer and the Special Servicer, as the
case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided that (i) with respect to the Master Servicer
or the Special Servicer, such Person is qualified to service multifamily
mortgage loans on behalf of FNMA or FHLMC and (ii) such merger, consolidation or
succession will not result in the downgrade, qualification or withdrawal of the
then-current ratings of the Classes of Certificates 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
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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, the Master Servicer may, in its
sole discretion, appoint Sub-Servicers in accordance with Section 3.23 hereof
and independent contractors or agents to perform select duties thereof, provided
that the Master Servicer shall not be relieved from such duties solely by virtue
of such appointment.
SECTION 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others.
None of the Depositor, the Master Servicer, the Special Servicer or any
of the directors, officers, employees or agents of the Depositor, the Master
Servicer or the Special Servicer shall be under any liability to the Trust Fund
or the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer, the Special Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of negligent disregard of
obligations and duties hereunder. The Depositor, the Master Servicer, the
Special Servicer and any director, officer, employee or agent of the Depositor,
the Master Servicer or the Special Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer and
the Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer or the Special Servicer shall be indemnified by
the Trust Fund and held harmless against any loss, liability or expense incurred
in connection with any legal action relating to this Agreement, the Certificates
or any asset of the Trust Fund, other than any loss, liability or expense
specifically required to be borne by such Person pursuant to the terms hereof,
or which constitutes a Servicing Advance (and is otherwise specifically
reimbursable hereunder), or which is incurred by such Person by reason of such
Person's willful misfeasance, bad faith or negligence in the performance of such
Person's duties hereunder or by reason of such Person's negligent disregard of
obligations and duties hereunder.
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
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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.
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) (A) any failure by the Master Servicer to make a required
deposit to the Certificate Account which continues unremedied for one Business
Day following the date on which such deposit was first required to be made, or
(B) any failure by the Master Servicer to deposit into, or to remit to the
Trustee for deposit into, the Distribution Account any amount required to be so
deposited or remitted, which failure is not remedied by 11:00 a.m. (New York
City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into, or
to remit to the Master Servicer for deposit into, the Certificate Account any
amount required to be so deposited or remitted under this Agreement which
failure continues unremedied for one Business Day following the date on which
such deposit or remittance was first required to be made; or
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(iii) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it pursuant to this Agreement which
continues unremedied for a period ending on the earlier of (A) 15 days following
the date such Servicing Advance was first required to be made, and (B) either,
if applicable, (1) in the case of a Servicing Advance relating to the payment of
insurance premiums, the day on which such insurance coverage terminates if such
premiums are not paid or (2) in the case of a Servicing Advance relating to the
payment of real estate taxes, the date of the commencement of a foreclosure
action with respect to the failure to make such payment; or
(iv) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the Special
Servicer contained in this Agreement which continues unremedied for a period of
30 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by the Trustee or the Depositor, or to the Master
Servicer or the Special Servicer, as the case may be by the Holders of
Certificates entitled to not less than 25% of the Voting Rights; 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
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of its creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(ix) a Servicing Officer obtains actual knowledge that Xxxxx'x
has (A) qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates, or (B) has placed one or more Classes of Certificates
on "watch status" in contemplation of a ratings downgrade or withdrawal (and
such "watch status" placement shall not have been withdrawn by Xxxxx'x within 60
days of the date the Servicing Officer obtained such actual knowledge), and, in
the case of either of clauses (A) or (B), cited servicing concerns with the
Master Servicer or the Special Servicer, as the case may be, as the sole or
material factor in such rating action; or (x) the Master Servicer or the Special
Servicer is removed from Standard & Poor's approved master servicer list or
special servicer list, as the case may be, and the ratings of any of the
Certificates by Standard & Poor's are downgraded, qualified or withdrawn
(including, without limitation, placed on "negative credit watch") in connection
with such removal.
(b) If any Event of Default with respect to the Master Servicer or the
Special Servicer (in either case for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Depositor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights, the Trustee shall,
terminate, by notice in writing to the Defaulting Party, with a copy of such
notice to the Depositor (if the 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
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Account, any 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 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 (other
than any Workout Fees owed pursuant to Section 3.11(c)) would have been entitled
to charge to the Certificate Account or the Distribution Account if the Master
Servicer or the Special Servicer had continued to act hereunder. Notwithstanding
the above, the Trustee may, if it shall be unwilling to so act, or shall, if it
is unable to so act or if the Holders of Certificates entitled to at least 51%
of the Voting Rights so request in writing to the Trustee or if the Trustee is
not approved as a master servicer or special servicer, as the case may be, by
each Rating Agency, 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
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succession. The Trustee shall be reimbursed for all of its out-of-pocket
expenses incurred in connection with obtaining such successor servicer by the
Trust within 60 days of the Trustee's submission of an invoice with respect
thereto and after making reasonable efforts to collect such amounts from the
successor servicer, to the extent such expenses have not been reimbursed by the
successor servicer; such expenses paid by the Trust Fund shall be deemed to be
an Additional Trust Fund Expense.
SECTION 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Master Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02, the Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
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 AND THE FISCAL AGENT
SECTION 8.01 Duties of the Trustee and the Fiscal Agent.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee (other than as successor Master Servicer or Special Servicer) shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the
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circumstances in the conduct of his own affairs. Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Fiscal Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee and the Fiscal Agent shall be determined
solely by the express provisions of this Agreement, the Trustee and the
Fiscal Agent shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against
the Trustee or the Fiscal Agent and, in the absence of bad faith on the
part of the Trustee or the Fiscal Agent, the Trustee and the Fiscal Agent
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee or the Fiscal Agent and conforming to
the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% 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 and the Fiscal
Agent.
Except as otherwise provided in Section 8.01:
(i) The Trustee and the Fiscal Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably
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believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) The Trustee and the Fiscal Agent may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
therewith and the expense of such consultation with counsel shall be
reimbursable under Section 8.05(b) hereof;
(iii) Neither the Trustee nor the Fiscal Agent (in their respective
capacities as such) shall be under any obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee or the Fiscal Agent, as applicable, reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; neither the Trustee nor the Fiscal
Agent shall be required to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which has not been
cured, to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(iv) Neither the Trustee nor the Fiscal Agent shall be personally
liable for any action reasonably taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
provided that the
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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) Neither the Trustee nor the Fiscal Agent shall be responsible
for any act or omission of the Master Servicer or the Special Servicer
(unless the Trustee is acting as Master Servicer or the Special Servicer,
as the case may be) or of the Depositor or any other person.
SECTION 8.03 Trustee and Fiscal Agent not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than the
representations and warranties of, and the other statements attributed to the
Trustee in Sections 2.02, 2.05, 2.07 and 8.13 and the signature of the Trustee
set forth on each outstanding Certificate, shall be taken as the statements of
the Depositor, the Master Servicer or the Special Servicer, as the case may be,
and neither the Trustee nor the Fiscal Agent shall assume responsibility for
their correctness. Neither the Trustee nor the Fiscal Agent shall make any
representations as to the validity or sufficiency of this Agreement (except to
the extent set forth in Section 8.13) or of any Certificate (other than as to
the signature of the Trustee set forth thereon) or of any Mortgage Loan or any
related document. Neither the Trustee nor the Fiscal Agent shall be accountable
for the use or application by the Depositor of any of the Certificates issued to
it or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Depositor in respect of the assignment of the Mortgage Loans
to the Trust Fund, or any funds deposited in or withdrawn from the Certificate
Account or any other account by or on behalf of the Depositor, the Master
Servicer or the Special Servicer. Neither the Trustee nor the Fiscal Agent shall
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer or the Special Servicer, and accepted by the
Trustee or the Fiscal Agent in good faith, pursuant to this Agreement.
SECTION 8.04 Trustee and Fiscal Agent May Own Certificates.
Each of the Trustee and the Fiscal Agent, in its individual or any
other capacity, may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Trustee or the Fiscal Agent.
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of Trustee
and Fiscal Agent.
(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
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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, Fiscal Agent and any director, officer, employee or
agent of the Trustee or the Fiscal Agent, as applicable, shall be indemnified
and held harmless by the Trust Fund (to the extent of amounts on deposit in the
Distribution Account from time to time) against any loss, liability or expense
(including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement)
arising out of, or incurred in connection with, any act or omission of the
Trustee and the Fiscal Agent relating to the exercise and performance of any of
the powers and duties of the Trustee and the Fiscal Agent hereunder; provided
that neither the Trustee, the Fiscal Agent 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 or the Fiscal Agent in the normal course of the
Trustee's and the Fiscal Agent's performing their routine duties in accordance
with any of the provisions hereof, (iii) any expense or liability specifically
required to be borne thereby pursuant to the terms hereof, or (iv) any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of the Trustee's or Fiscal Agent's obligations and
duties hereunder, or by reason of negligent disregard of such obligations or
duties, or as may arise from a breach of any representation, warranty or
covenant of the Trustee or Fiscal Agent made herein. The provisions of this
Section 8.05(b) shall survive any resignation or removal of the Trustee and
appointment of a successor trustee or fiscal agent.
SECTION 8.06 Eligibility Requirements for Trustee and Fiscal Agent.
(a) The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States of
America or any State thereof or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority. If such association or corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such association or corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. The long-term unsecured debt obligations of the Trustee
shall at all times be rated not less than "AA" by Standard & Poor's and "Aa3" by
Xxxxx'x or if and for so long as a Fiscal Agent is appointed and acting
hereunder, at least investment grade by each Rating Agency, 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 or the Fiscal
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee or the Fiscal Agent 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
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evidenced in writing by each Rating Agency) cause any Rating Agency to qualify,
downgrade or withdraw any rating assigned thereby to any Class of Certificates,
then upon the execution and delivery of such agreement or the effectiveness of
such appointment, the Trustee shall not be required to resign, and may continue
in such capacity, for so long as none of the ratings assigned by the Rating
Agencies to the Certificates is adversely affected thereby. The corporation or
association serving as Trustee may have normal banking and trust relationships
with the Depositor, the Master Servicer, the Special Servicer and their
respective Affiliates.
(b) The Trustee and the Fiscal Agent shall not assign any of their
rights or delegate any of their duties under this Agreement to any other Person
without the prior written consent of the Depositor and the Majority
Certificateholder of the Controlling Class (such consent not to be unreasonably
withheld, conditioned or delayed).
SECTION 8.07 Resignation and Removal of the Trustee and the Fiscal
Agent.
(a) The Trustee or the Fiscal Agent, as applicable, may at any time
resign and be discharged from the trusts hereby created by giving written notice
thereof to the Depositor, the Master Servicer, the Special Servicer and to all
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee or fiscal agent, as applicable,
acceptable to the Master Servicer by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee or the Fiscal Agent and
to the successor trustee or fiscal agent. A copy of such instrument shall be
delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the Depositor. If no successor trustee or fiscal agent
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee or the Fiscal
Agent may petition any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time the Trustee or Fiscal Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 and shall fail to
resign after written request therefor by the Depositor or the Master Servicer,
or if at any time the Trustee or Fiscal Agent shall become incapable of acting,
or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or
Fiscal Agent or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or Fiscal Agent or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Trustee or Fiscal Agent and appoint a successor trustee
or fiscal agent acceptable to the Master Servicer by written instrument, in
duplicate, which instrument shall be delivered to the Trustee or Fiscal Agent so
removed and to the successor trustee or fiscal agent. 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 or the Fiscal Agent and appoint a
successor trustee or fiscal agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Master Servicer,
one complete set to the Trustee so removed and one complete set to the successor
so appointed. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer and the remaining Certificateholders by the Master Servicer.
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(d) Any resignation or removal of the Trustee or the Fiscal Agent and
appointment of a successor trustee or fiscal agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor trustee or fiscal agent as provided in Section
8.08. Upon any succession of the Trustee or Fiscal Agent under this Agreement,
the predecessor Trustee or Fiscal Agent shall be entitled to the payment of
compensation and reimbursement for services rendered and expenses incurred
(including without limitation unreimbursed Advances and interest thereon made
thereby) accrued or payable up to and including the effective date of such
termination, at such times and from such sources as if the predecessor Trustee
or Fiscal Agent had not resigned or been removed. Any resignation or removal of
the Trustee shall be a simultaneous removal of the Fiscal Agent hereunder.
SECTION 8.08 Successor Trustee and Fiscal Agent.
(a) Any successor trustee or fiscal agent appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer, the Special Servicer and to its predecessor trustee or fiscal agent an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee or fiscal agent shall become effective and
such successor trustee or fiscal agent, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee or fiscal agent herein. The predecessor trustee or fiscal agent
shall deliver to the successor trustee or fiscal agent all Mortgage Files and
related documents and statements held by it hereunder (other than any Mortgage
Files at the time held on its behalf by a Custodian, which Custodian shall
become the agent of the successor trustee or fiscal agent), and the Depositor,
the Master Servicer, the Special Servicer and the predecessor trustee or fiscal
agent shall execute and deliver such instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee or fiscal agent all such rights, powers, duties and
obligations, and to enable the successor trustee or fiscal agent to perform its
obligations hereunder.
(b) No successor trustee or fiscal agent shall accept appointment as
provided in this Section 8.08 unless at the time of such acceptance such
successor trustee or fiscal agent shall be eligible under the provisions of
Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section 8.08, the successor trustee or fiscal agent shall mail notice of
such appointment to the Depositor and the Certificateholders.
SECTION 8.09 Merger or Consolidation of Trustee and Fiscal Agent.
Any entity into which the Trustee or the Fiscal Agent may be merged or
converted or with which it may be consolidated or any entity resulting from any
merger, conversion or consolidation to which the Trustee or the Fiscal Agent
shall be a party, or any entity succeeding to the corporate trust business of
the Trustee or the Fiscal Agent, shall be the successor of the Trustee or the
Fiscal Agent hereunder, provided such entity shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
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SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within fifteen days after the receipt
by it of a request to do so, or in case an Event of Default in respect of the
Master Servicer shall have occurred and be continuing, the Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereunder and no notice to Holders of Certificates of
the appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(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.
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(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11 Appointment of Custodians.
(a) The Trustee may, with the consent of the Master Servicer and the
Majority Certificateholder of the Controlling Class, appoint one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to supervision
by federal or state authority, shall itself (or together with an affiliate
guaranteeing its financial performance) have a combined capital and surplus of
at least $15,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File, shall maintain and keep in full force and
effect throughout the term of this Agreement a fidelity bond and an errors and
omissions insurance policy covering its officers and employees and other persons
acting on its behalf in connection with its activities under this Agreement in
the amount of coverage customary for custodians acting in such capacity, and
shall not be the Depositor, a Mortgage Loan Seller or any Affiliate of the
Depositor or a Mortgage Loan Seller. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian.
(b) Any Custodian appointed by the Trustee under this Agreement shall
not assign any of its rights or delegate any of its duties under this Agreement
to any other Person without the prior written consent of the Depositor and the
Majority Certificateholder of the Controlling Class (such consent not to be
unreasonably withheld, conditioned or delayed).
SECTION 8.12 Access to Certain Information.
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee ten copies of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered 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
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Section 4.02 since the Closing Date, (C) all Officer's Certificates delivered to
the Trustee since the Closing Date pursuant to Section 3.13, (D) all
accountants' reports delivered to the Trustee since the Closing Date pursuant to
Section 3.14, (E) the most recent inspection report prepared by the Master
Servicer or Special Servicer and delivered to the Trustee in respect of each
Mortgaged Property pursuant to Section 3.12, (F) as to each Mortgage Loan
pursuant to which the related Mortgagor is required to deliver such items or the
Master Servicer or Special Servicer has otherwise acquired such items, the most
recent annual operating statement and rent roll of the related Mortgaged
Property and financial statements of the related Mortgagor collected by the
Master Servicer or the Special Servicer and delivered to the Trustee pursuant to
Section 3.12, (G) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property securing a Defaulted Mortgage Loan as to which
the environmental testing contemplated by Section 3.09(c) revealed that either
of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof was not satisfied (but only for so long as such Mortgaged Property or
the related Mortgage Loan are part of the Trust Fund), (H) the respective
Mortgage Files, including, without limitation, any and all modifications,
waivers and amendments of the terms of a Mortgage Loan entered into by the
Master Servicer or the Special Servicer and delivered to the Trustee pursuant to
Section 3.21 (but only for so long as the affected Mortgage Loan is part of the
Trust Fund), (I) copies of any Appraisals required or permitted to be performed
pursuant to the terms of this Agreement, and (J) any and all Officer's
Certificates and other evidence delivered to or retained by the Trustee to
support the Master Servicer's, Special Servicer's, Trustee's or Fiscal Agent's
determination that any Advance was or, if made, would be a Nonrecoverable
Advance. Copies of any and all of the foregoing items will be available from the
Trustee upon written request; however, the Trustee shall be permitted to require
from the requesting Certificateholder payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies.
In connection with providing access to or copies of the items described
in the preceding paragraph, the Trustee may require (a) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Trustee, generally to the effect that such
Person is a beneficial holder of Certificates, is requesting the information
solely for use in evaluating such Person's investment in the Certificates and
will otherwise keep such information confidential and (b) in the case of a
prospective purchaser, a written confirmation executed by the requesting Person,
in form reasonably satisfactory to the Trustee, 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 and the Trust Fund within its control which may be
required by this Agreement or by applicable law. Such access shall be afforded
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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 and the
Fiscal Agent.
(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, the Fiscal Agent and the
Depositor, constitutes a valid, legal and binding obligation of the Trustee,
enforceable against the Trustee in accordance with the terms hereof, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and general principles
of equity, regardless of whether such enforcement is considered in a proceeding
in equity or at law.
(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.
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(b) The Fiscal Agent hereby represents and warrants to the Master
Servicer, for its own benefit and the benefit of the Certificateholders, and to
the Special Servicer and the Depositor, as of the Closing Date, that:
(i) The Fiscal Agent is an organization organized under the laws of
the Netherlands, duly organized, validly existing and in good standing
under the laws governing its creation and existence.
(ii) The execution and delivery of this Agreement by the Fiscal
Agent, and the performance and compliance with the terms of this Agreement
by the Fiscal Agent, will not violate the Fiscal Agent's organizational
documents or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iii) This Agreement, assuming due authorization, execution and
delivery by the Special Servicer, the Master Servicer, the Trustee and the
Depositor, constitutes a valid, legal and binding obligation of the Fiscal
Agent, enforceable against the Fiscal Agent in accordance with the terms
hereof, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(iv) The Fiscal Agent is not in default with respect to any order or
decree of any court, or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default, in the Fiscal
Agent's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Fiscal Agent to perform its
obligations or the financial conditions or operations of the Fiscal Agent
or its properties.
(v) No litigation is pending or, to the best of the Fiscal Agent's
knowledge, threatened against the Fiscal Agent which would prohibit the
Fiscal Agent from entering into this Agreement or, in the Fiscal Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect the ability of the Fiscal Agent to perform its obligations under
this Agreement.
(vi) No consent, approval, authorization or order of, registration
or filing with or notice to, any governmental authority or court is
required, under federal or state law for the execution, delivery and
performance of or compliance by the Fiscal Agent with this Agreement, or
the consummation by the Fiscal Agent of any transaction contemplated
hereby, other than (1) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been obtained or
made and (2) where the lack of such consent, approval, authorization,
qualification, registration, filing or notice would not have a material
adverse effect on the performance by the Fiscal Agent under this
Agreement.
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SECTION 8.14 Filings with the Securities and Exchange Commission.
Based on information furnished to it by the Master Servicer and the
Depositor (in an 80 column unformatted electronic format acceptable to the
Trustee), the Trustee will prepare and file with the Securities and Exchange
Commission on Form 8-K (including XXXXX filings), on behalf of the Trust Fund,
each Distribution Date Statement. The Trustee shall have no responsibility to
file any items other than those specified in this Section 8.14. Prior to January
2, 2003 (and each anniversary thereafter until directed by the Depositor to file
a Form 15, delisting the transaction) the Trustee shall hire counsel selected by
the Depositor to file Form 10-K's on behalf of the Trust Fund for the preceding
fiscal year. Any fees and expenses accrued and incurred by the Trustee in
connection with this Section 8.14 (including reasonable attorneys' fees) shall
be reimbursed to it by the Depositor. Prior to filing any such reports, the
Trustee shall submit reports to the Depositor for review and approval.
SECTION 8.15 Fiscal Agent Termination Event.
"Fiscal Agent Termination Event," wherever used herein, means any one
of the following events:
(i) Any failure by the Fiscal Agent to remit to the Trustee when due
any required Advances; or
(ii) A decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, shall have been entered against
the Fiscal Agent and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or of
or relating to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable bankruptcy, insolvency or reorganization statute, make
an assignment for the benefit of its creditors, voluntarily suspend
payment of its obligations, or take any corporate action in furtherance of
the foregoing; or
(v) Moody's shall indicate its intent to reduce, qualify or withdraw
the outstanding rating of any Class of Certificates because the
prospective financial condition or capacity to make Advances of the Fiscal
Agent is insufficient to maintain such rating; or
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(vi) The long-term unsecured debt of the Fiscal Agent is rated below
"AA" or "Aa3", as the case may be, by Standard & Poor's or Moody's,
respectively, or such other rating as shall not result in the
qualification, downgrade or withdrawal of any of the ratings then assigned
to the respective Classes of Certificates, as confirmed in writing by each
Rating Agency.
SECTION 8.16 Procedure Upon Termination Event.
On the date specified in a written notice of termination given to the
Fiscal Agent pursuant to Section 8.07, all authority, power and rights of the
Fiscal Agent under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall terminate and a successor Fiscal Agent shall be appointed by
the Trustee, with the consent of the Depositor; provided that in no event shall
the termination of the Fiscal Agent be effective until Rating Agency
Confirmation shall have been obtained with respect to a successor fiscal agent
from each of Standard & Poor's and Moody's; provided that no such Rating Agency
Confirmation shall be required from Standard & Poor's if the successor Fiscal
Agent is rated at least AA by Standard & Poor's. The Fiscal Agent agrees to
cooperate with the Trustee in effecting the termination of the Fiscal Agent's
responsibilities and rights hereunder as Fiscal Agent.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Mortgage
Loans.
(a) Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer, the Fiscal Agent and the Trustee (other
than the obligations of the Trustee to provide for and make payments to
Certificateholders as set forth herein) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of (i) the purchase by the Master Servicer,
the Majority Certificateholder of the Controlling Class or the Depositor
pursuant to subsection (b), of all Mortgage Loans and each REO Property
remaining in REMIC I at a price (to be determined as of the end of the
Collection Period for the anticipated Final Distribution Date) equal to (A) the
aggregate Purchase Price of all the Mortgage Loans included in REMIC I, plus (B)
the appraised value of each REO Property, if any, included in REMIC I (such
appraisal to be conducted by an Independent MAI-designated appraiser selected by
the Master Servicer and approved by the Trustee), minus (C) solely in the case
where the Master Servicer is effecting such purchase, the aggregate amount of
unreimbursed Advances, together with any Advance Interest accrued and payable to
the Master Servicer in respect of such Advances and any unpaid Servicing Fees,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase); provided,
however, that any such purchase with respect to the Additional Servicing Fee
Mortgage Loans shall be subject to the rights of the applicable Designated
Sub-Servicer to continue to sub-service such Additional Servicing Fee Mortgage
Loans and the rights of Archon, GSMC, the applicable Designated Sub-Servicer and
the Master
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Servicer, as applicable, to receive or retain their applicable portion, if any,
of the Additional Servicing Fee pursuant to the applicable Designated
Sub-Servicer Agreement, (ii) the exchange by the Remaining Certificateholder
pursuant to subsection (f), and (iii) the final payment or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof.
(b) The Master Servicer, the Majority Certificateholder of the
Controlling Class or the Depositor each may, at its option, elect to purchase
all of the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (i) of the preceding paragraph by giving written notice
to the other parties hereto no later than 60 days prior to the anticipated date
of purchase; provided, however, that the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor may so elect to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Loans and any REO
Loans remaining in the Trust Fund at the time of such election is less than 1%
of the aggregate Cut-off Date Principal Balance of the Mortgage Loans set forth
in the Preliminary Statement. Such option shall be exercisable by each such
Person in the priority in which such Person is listed in the immediately
foregoing sentence. In the event that the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor purchases all of the
Mortgage Loans and each REO Property remaining in REMIC I in accordance with the
preceding sentence, the Master Servicer, the Majority Certificateholder of the
Controlling Class or the Depositor, as applicable, shall deposit in the
Distribution Account not later than the Master Servicer Remittance Date relating
to the Final Distribution Date an amount in immediately available funds equal to
the above-described purchase price (exclusive of any portion thereof that would
be payable to any Person other than the Certificateholders pursuant to Section
3.05(a) if on deposit in the Certificate Account, which portion shall be
deposited in the Certificate Account). In addition, the Master Servicer shall
(i) transfer to the Distribution Account all amounts required to be transferred
thereto on such Master Servicer Remittance Date from the Certificate Account
pursuant to the second paragraph of Section 3.04(b), together with any other
amounts on deposit in the Certificate Account that would otherwise be held for
future distribution. Upon confirmation that such final transfers have been made,
the Trustee shall release or cause to be released to the Master Servicer, the
Majority Certificateholder of the Controlling Class or the Depositor, as
applicable, the Mortgage Files for the remaining Mortgage Loans and any Reserve
Funds and Escrow Payments in any Reserve Accounts or Servicing Account, as
applicable, and shall execute all assignments, endorsements and other
instruments furnished to it by the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor, as applicable, as
shall be necessary to effectuate transfer of the Mortgage Loans and REO
Properties remaining in REMIC I. All Servicing Files for the remaining Mortgage
Loans and REO Properties shall be delivered to the purchasing entity.
(c) Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and, if not previously notified pursuant to the
preceding paragraph, to the other parties hereto mailed (a) in the event such
notice is given in connection with the Master Servicer's, the Majority
Certificateholder of the Controlling Class's or the Depositor's purchase of all
of the Mortgage Loans and each REO Property remaining in REMIC I, not earlier
than the
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15th day and not later than the 25th day of the month next preceding the month
of the final distribution on the Certificates or (b) otherwise during the month
of such final distribution on or before the Determination Date in such month, in
each case specifying (i) the Distribution Date upon which the Trust Fund will
terminate and final payment of the Certificates will be made, (ii) the amount of
any such final payment and (iii) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the offices of the Certificate
Registrar or such other location therein designated.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Distribution Account that are allocable to payments on the Class
to which the Certificates so presented and surrendered belong. Amounts on
deposit in the Distribution Account as of the Final Distribution Date (exclusive
of any portion of such amounts payable or reimbursable to any Person pursuant to
clauses (ii)-(viii) of Section 3.05(b)) shall be allocated for the purposes, in
the amounts and in accordance with the priority set forth in Section 4.01. Any
funds in the Distribution Account not distributed on such Distribution Date
shall be set aside and held uninvested in trust for the benefit of
Certificateholders not presenting and surrendering their Certificates in the
aforesaid manner, and shall be disposed of in accordance with the last paragraph
of Section 4.01(g).
(e) For purposes of this Section 9.01, the Remaining Certificateholder
shall have the first option to terminate the Trust Fund, pursuant to subsection
(f), and then the Master Servicer, and then the Depositor, in each of the last
two cases, pursuant to subsection (b).
(f) Following the date on which the aggregate Certificate Balance of
the Class A, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates is reduced to zero, the Remaining Certificateholder shall have the
right to exchange all of its Certificates, including the Class X Certificates,
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) by giving written notice to all the parties hereto no later than
60 days prior to the anticipated date of exchange. In the event that the
Remaining Certificateholder elects to exchange all of its Certificates,
including the Class X Certificates, (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property remaining in the Trust Fund in
accordance with the preceding sentence, such Remaining Certificateholder, not
later than the Final Distribution Date, shall deposit in the Certificate Account
an amount in immediately available funds equal to all amounts due and owing to
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent hereunder through the date of the liquidation of the Trust Fund
that may be withdrawn from the Certificate Account, but only to the extent that
such amounts are not already on deposit in the Certificate Account. Upon
confirmation that such final deposits have been made and following the surrender
of all remaining Certificates by the Remaining Certificateholder on the Final
Distribution Date, the Trustee shall, upon receipt of a Request for Release from
the Master Servicer, release or cause to be released to the Remaining
Certificateholder or any designee thereof, the Mortgage Files for the remaining
Mortgage Loans and shall execute all assignments, endorsements and other
instruments furnished to it by the Remaining Certificateholder as shall be
necessary to effectuate transfer of the Mortgage Loans
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and REO Properties remaining in the Trust Fund, and the Trust Fund shall be
liquidated in accordance with Section 9.02. Thereafter, the Trust Fund and the
respective obligations and responsibilities under this Agreement of the
Depositor, the Master Servicer, the Special Servicer, the Trustee (other than
annual tax returns and maintenance of books and records and the preparation and
filing of final tax returns), and the Fiscal Agent shall terminate. Such
transfers shall be subject to any rights of any Sub-Servicers to service (or to
perform select servicing functions with respect to) the Mortgage Loans. For
federal income tax purposes, the Remaining Certificateholder shall be deemed to
have purchased the assets of REMIC I for an amount equal to the remaining
Certificate Balance of its remaining Certificates (other than the Residual
Certificates), plus accrued and unpaid interest with respect thereto, and the
Trustee shall credit such amounts against amounts distributed in respect of such
Certificates. The remaining Mortgage Loans and REO Properties are deemed
distributed to the Remaining Certificateholder in liquidation of the Trust Fund
pursuant to Section 9.02.
SECTION 9.02 Additional Termination Requirements.
(a) In the event the Master Servicer, the Majority Certificateholder of
the Controlling Class, or the Depositor purchases all of the Mortgage Loans and
each REO Property remaining in REMIC I, or the Remaining Certificateholder
exchanges all of its Certificates, as provided in Section 9.01, the Trust Fund
(and, accordingly, REMIC I, REMIC II and REMIC III) shall be terminated in
accordance with the following additional requirements, unless the Master
Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor, or the Remaining Certificateholder, as the case may be, obtains at
its own expense and delivers to the Trustee an Opinion of Counsel, addressed to
the Depositor, the Master Servicer and the Trustee, to the effect that the
failure of the Trust Fund to comply with the requirements of this Section 9.02
will not (subject to Section 10.01(f)) result in the imposition of taxes on
"prohibited transactions" of REMIC I, REMIC II or REMIC III as defined in
Section 860F of the Code or cause REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for each of
REMIC I, REMIC II and REMIC III pursuant to Treasury regulation Section 1.860F-1
and shall satisfy all requirements of a qualified liquidation under Section 860F
of the Code and any regulations thereunder;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall sell
all of the assets of REMIC I to the Master Servicer, the Majority
Certificateholder of the Controlling Class or the Depositor, as applicable, for
cash; and
(iii) immediately following the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be distributed
or credited, to the Holders of the related Class of Residual Certificates all
cash on hand in the related REMIC (other than cash retained to meet claims), and
REMIC I, REMIC II and REMIC III shall terminate at that time.
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(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Trustee to adopt a plan of complete liquidation of REMIC
I, REMIC II and REMIC III, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The Trustee shall make an election to treat each of REMIC I, REMIC
II and REMIC III as a REMIC under the Code and, if necessary, under applicable
state law. Such election will be made on Form 1066 or other appropriate federal
tax or information return (including Form 8811) or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued. The REMIC I Regular Interests are hereby designated as
the "regular interests" (within the meaning of Section 860G(a)(1) of the Code),
and the Class R-I Certificates are hereby designated as the sole class of
"residual interests" (within the meaning of Section 860G(a)(2) of the Code), in
REMIC I. The REMIC II Regular Interests are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the Class
R-II Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
The REMIC III Regular Certificates are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) and the Class
R-III Certificates will be the sole class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC III. The Master Servicer,
the Special Servicer and the Trustee shall not (to the extent within the control
of each) permit the creation of any "interests" (within the meaning of Section
860G of the Code) in REMIC I, REMIC II or REMIC III other than the Certificates.
(b) The Closing Date is hereby designated as the "startup day" of each
of REMIC I, REMIC II and REMIC III within the meaning of Section 860G(a)(9) of
the Code.
(c) The Trustee, as agent for the tax matters person of each of REMIC
I, REMIC II and REMIC III, shall (i) act on behalf of the REMIC in relation to
any tax matter or controversy involving the Trust Fund and (ii) represent the
Trust Fund in any administrative or judicial proceeding relating to an
examination or audit by any governmental taxing authority with respect thereto.
The legal expenses, including without limitation attorneys' or accountants'
fees, and costs of any such proceeding and any liability resulting therefrom
shall be expenses of the Trust Fund and the Trustee shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans and any
REO Properties on deposit in the 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
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as its agent to perform all of the duties of the tax matters person for the
related REMIC created hereunder.
(d) The Trustee shall prepare or cause to be prepared, sign and file,
in a timely manner, all of the Tax Returns that it determines are required with
respect to the Grantor Trust and each REMIC created hereunder. The expenses of
preparing such returns shall be borne by the Trustee without any right of
reimbursement therefor.
(e) The Trustee shall provide (i) to any Transferor of a Residual
Certificate such information as is necessary for the application of any tax
relating to the transfer of such Residual Certificate to any Person who is not a
Permitted Transferee as provided in Section 5.02(d)(iii), (ii) to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone
number of the person who will serve as the representative of each of REMIC I,
REMIC II and REMIC III.
(f) The Trustee shall take such actions and shall cause each REMIC
created hereunder to take such actions as are reasonably within the Trustee's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status thereof as a REMIC under the REMIC
Provisions. The Trustee shall not knowingly or intentionally take any action,
cause REMIC I, REMIC II or REMIC III to take any action or fail to take (or fail
to cause to be taken) any action reasonably within its control and the scope of
duties more specifically set forth herein, that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) adversely affect the status of
REMIC I, REMIC II or REMIC III as a REMIC or (ii) result (subject to the
following sentence) in the imposition of a tax upon REMIC I, REMIC II or REMIC
III (including but not limited to the tax on prohibited transactions as defined
in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code) (either such event, an "Adverse REMIC
Event") unless the Trustee receives an Opinion of Counsel (at the expense of the
party seeking to take such action or, if such party fails to pay such expense,
and the Trustee determines that taking such action is in the best interest of
REMIC I, REMIC II or REMIC III and the Certificateholders, at the expense of the
Trust Fund, but in no event at the expense of the Trustee) to the effect that
the contemplated action will not, with respect to any REMIC created hereunder
adversely affect such status or, unless the Master Servicer, the Trustee, or the
Special Servicer, as applicable (or other Person acceptable to the Trustee),
determines that the monetary exposure to REMIC I, REMIC II and REMIC III is not
material and in its sole discretion agrees to indemnify, to the extent
reasonably acceptable to the Trustee, the Trust Fund against the imposition of
such tax. Wherever in this Agreement a contemplated action may not be taken
because the timing of such action might result in the imposition of a tax on the
Trust Fund, or may only be taken pursuant to an Opinion of Counsel that such
action would not impose a tax on the Trust Fund, such action may nonetheless be
taken provided that the indemnity given in the preceding sentence with respect
to any taxes that might be imposed on the Trust Fund has been given and that all
other preconditions to the taking of such action have been satisfied. The
Trustee shall not take or fail to take any action (whether or not authorized
hereunder) as to which the Master Servicer has advised it in writing that it has
received an Opinion of Counsel to the effect that an Adverse REMIC Event could
occur with respect to such action. In addition, prior to taking any action with
respect to the Trust Fund or its
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assets, or causing the Trust Fund to take any action, which is not expressly
permitted under the terms of this Agreement, each of the parties hereto will
consult with the Trustee or its designee, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to REMIC I,
REMIC II or REMIC III, and such party shall not take any such action, or cause
REMIC I, REMIC II or REMIC III to take any such action, as to which the Trustee
has advised it in writing that an Adverse REMIC Event could occur. The Trustee
may consult with counsel to make such written advice, and the cost of same shall
be borne by the party seeking to take the action not expressly permitted by this
Agreement. At all times as may be required by the Code, the Trustee will to the
extent within its control and the scope of its duties as specifically set forth
herein, maintain substantially all of the assets of REMIC I as "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions"
of REMIC I, REMIC II or REMIC III as defined in Section 860F(a)(2) of the Code,
on "net income from foreclosure property" of REMIC I, REMIC II or REMIC III as
defined in Section 860G(c) of the Code, or on any contributions to REMIC I,
REMIC II or REMIC III after the Startup Day therefor pursuant to Section 860G(d)
of the Code, or any other tax is imposed by the Code or any applicable
provisions of state or local laws, such tax shall be charged (i) to the Trustee,
if such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Agreement, (ii) to any other party hereto, if such tax
arises out of or results from a breach by such party of any of its obligations
under this Agreement, or (iii) otherwise (including, without limitation, in the
case of any tax permitted to be incurred pursuant to Section 3.17(a)) against
amounts on deposit in the Distribution Account as provided by Section 3.05(b).
(h) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each of REMIC I, REMIC II and REMIC III on a
calendar year and on an accrual basis or as otherwise may be required by the
REMIC Provisions.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Trust Fund unless the Trustee shall have received
an Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at
any time that any Certificates are outstanding or subject such REMIC to any tax
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
(j) None of the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which REMIC I, REMIC II or REMIC III will
receive a fee or other compensation for services nor (to the extent within its
control) permit REMIC I, REMIC II or REMIC III to receive any income from assets
other than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Within 30 days after the Closing Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage
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Investment Conduits (REMIC) and Issuers of Collateralized Debt Obligations" for
each of REMIC I, REMIC II and REMIC III.
(l) None of the Trustee, the Master Servicer, or the Special Servicer
shall sell, dispose of or substitute for any of the Mortgage Loans (except in
connection with (i) the default, imminent default or foreclosure of a Mortgage
Loan, including but not limited to, the acquisition or sale of a Mortgaged
Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy of REMIC
I, REMIC II or REMIC III, (iii) the termination of the Trust Fund pursuant to
Article IX of this Agreement or (iv) a purchase of Mortgage Loans pursuant to or
as contemplated by Section 2.03 or 3.18 of this Agreement) or acquire any assets
for the Trust Fund or sell or dispose of any investments in the 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 Xxxx REMIC, the Xxxxxxx
REMIC, the Central REMIC, the Gateway REMIC and the Summit 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 Xxxx REMIC, the Xxxxxxx REMIC, the Central
REMIC, the Gateway REMIC and the Summit REMIC in accordance with the provisions
of Sections 3.16(a), 3.17, 3.19, 3.21 and this Section 10.01. The Trustee is
permitted to be reimbursed for any expenses attributable to its administration
of 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 Xxxx REMIC Regular
Interest, the Xxxxxxx REMIC Regular Interest, the Central REMIC Regular
Interest, the Gateway REMIC Regular Interest and the Summit REMIC Regular
Interest, as applicable.
SECTION 10.02 Depositor, Master Servicer, Special Servicer, Fiscal
Agent, Trustee to Cooperate.
(a) The Depositor shall provide or cause to be provided to the Trustee,
within ten days after the Closing Date, all information or data that the Trustee
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flow of the Certificates.
(b) The Master Servicer, the Special Servicer, the Fiscal Agent and the
Depositor shall each furnish such reports, certifications and information, and
access to such books and records maintained thereby, as may relate to the
Certificates or the Trust Fund and as shall be reasonably requested by the
Trustee in order to enable it to perform its duties hereunder.
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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 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
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Grantor Trust Event could result from such action or failure to act. In
addition, prior to taking any action with respect to the Grantor Trust, or
causing the Trust Fund to take any action, that is not expressly permitted under
the terms of this Agreement, the Master Servicer and the Special Servicer shall
consult with the Trustee or its designee, in writing, with respect to whether
such action could cause an Adverse Grantor Trust Event to occur. Neither the
Master Servicer nor the Special Servicer shall have any liability hereunder for
any action taken by it in accordance with the written instructions of the
Trustee. The Trustee may consult with counsel to make such written advice, and
the cost of same shall be borne by the party seeking to take the action not
permitted by this Agreement, but in no event at the cost or expense of the Trust
Fund or the Trustee. Notwithstanding any provision of this Agreement to the
contrary, the Grantor Trust Assets shall not be subject to any expenses, costs
or other charges that are attributable to the assets or activities of REMIC I,
REMIC II or REMIC III.
(f) If any tax is imposed on the Grantor Trust, such tax, together with
all incidental costs and expenses (including, without limitation, penalties and
reasonable attorneys' fees) shall be charged to and paid by: (i) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its obligations under Article III or this Section 10.03; (ii)
the Master Servicer, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or this Section
10.03; (iii) the Trustee, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under Article IV, Article VIII or this
Section 10.03; or (iv) the portion of the Trust Fund constituting the Grantor
Trust in all other instances.
(g) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to the Grantor Trust on a calendar year and on an
accrual basis.
(h) The Trustee shall respond to reasonable written requests for
information in relation to income tax reporting by Certificateholders.
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, modify or supplement any provisions herein which
may be inconsistent with any other provisions herein or to correct any error,
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary or desirable to maintain the qualification of REMIC
I, REMIC II or REMIC III as a REMIC at all times that any Certificate is
outstanding or to avoid or minimize the risk of the imposition of any tax on
REMIC I, REMIC II or REMIC III pursuant to the Code that would be a claim
against the Trust Fund, provided that the Trustee has received an Opinion of
Counsel
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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,
(vi) to modify, eliminate or add any provision to this Agreement to
provide for a book-entry registration system for the Certificates,
(vii) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that any such
amendment shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder.
(b) This Agreement may also be amended from time to time by the parties
hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any such
case without the consent of the Holders of all Certificates of such Class then
outstanding; or
(iii) modify the definition of "Servicing Standard" without the
consent of the Holders of all Certificates then outstanding.
(c) Notwithstanding the foregoing, the Trustee will not be entitled to
consent to any amendment hereto without having first received an Opinion of
Counsel to the effect that
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(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.
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
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for a partition or winding up of the Trust Fund, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it under this
Section 11.03(c) or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the Holders of
Certificates unless such Holders have offered to the Trustee reasonable security
against the costs, expenses and liabilities which may be incurred therein or
hereby. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 11.03(c), each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04 GOVERNING LAW.
THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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SECTION 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed to have been
duly given only when received), to: (i) in the case of the Depositor, 000 Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Structured Finance Manager,
telecopy number: (000) 000-0000; (ii) in the case of the Master Servicer, 000
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Managing Director,
Commercial Servicing Operations, telecopy number: (000) 000-0000 (with copies to
General Counsel (telecopy number: (000) 000-0000)); (iii) in the case of the
Trustee and the Fiscal Agent, the Corporate Trust Office; (iv) in the case of
the Special Servicer, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
telecopy number (000) 000-0000, Attention: CMBS Portfolio Manager (with a copy
to General Counsel); (v) in the case of the Rating Agencies, (A) Standard &
Poor's Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Commercial Mortgage Surveillance Manager, telecopy number: (000) 000-0000, (B)
Xxxxx'x Investors Service, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxx Building Center,
4th-9th Floor, Newark, New Jersey 07102, Attention: CMBS Rating and Monitoring,
telecopy number: (000) 000-0000; (vi) in the case of the Underwriters, (A)
Deutsche Bank Securities Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxx, telecopy number: (000) 000-0000 and (B) Xxxxxxx, Xxxxx &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx,
telecopy number: (000) 000-0000; (vii) in the case of the initial Majority
Certificateholder of the Controlling Class, Allied Capital Corporation, 0000
Xxxxxxxxxxxx Xxxxxx, XX, 0xx Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Xxxx
Xxxxxxxx, telecopy number: (000) 000-0000, or as to each such Person such other
address as may hereafter be furnished by such Person to the parties hereto in
writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity)
197
a first priority security interest in the Depositor's entire right, title and
interest in and to the assets comprising the Trust Fund, including without
limitation, the Mortgage Loans (including all Replacement Mortgage Loans), all
principal and interest received or receivable with respect to the Mortgage Loans
(other than principal and interest payments due and payable prior to the Cut-off
Date and Principal Prepayments received prior to the Cut-off Date), all amounts
held from time to time in the Certificate Account and the Distribution Account
and all reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest in and to the proceeds of any title, hazard or other
Insurance Policies related to the Mortgage Loans, and (ii) this Agreement shall
constitute a security agreement under applicable law. The Depositor shall file
or cause to be filed, as a precautionary filing, a Form UCC-1 substantially in
the form attached as Exhibit E hereto in all appropriate locations in the
Commonwealth of Pennsylvania promptly following the initial issuance of the
Certificates, and the Master Servicer shall prepare and file at each such
office, and the Trustee shall execute, continuation statements thereto, in each
case within six months prior to the fifth anniversary of the immediately
preceding filing. The Depositor shall cooperate in a reasonable manner with the
Trustee and the Master Servicer in preparing and filing such continuation
statements. This Section 11.07 shall constitute notice to the Trustee pursuant
to any of the requirements of the applicable Uniform Commercial Code.
SECTION 11.08 No Partnership.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of the
Master Servicer and the Special Servicer shall be rendered as independent
contractors and not as agents for the Trust Fund or the Certificateholders.
SECTION 11.09 Successors and Assigns; 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 11.10 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11 Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide notice
or a copy of the listed item to each Rating Agency with respect to each of the
following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
198
(iii) the resignation, termination or merger (with an entity other
than an Affiliate) of the Master Servicer, the Special Servicer or the Trustee;
(iv) any change in the location of the Distribution Account;
(v) a copy of the notice given pursuant to Section 2.03(a) and the
repurchase of a Mortgage Loan by the related Mortgage Loan Seller pursuant to
Section 6 of the related Mortgage Loan Purchase Agreement or by GMACCM pursuant
to Section 4 of the related Supplemental Agreement; and
(vi) the final payment to any Class of Certificateholders.
(b) Each of the Master Servicer and the Special Servicer shall promptly
furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14.
(c) To the extent it is not already required to do so under Section
4.02 hereof, the Trustee shall promptly furnish to each Rating Agency copies of
each report prepared and/or delivered by it pursuant to Section 4.02 hereof.
(d) Each of the Master Servicer, the Special Servicer and the Trustee
shall provide or make available such additional information to each Rating
Agency upon request is in its possession or reasonably available to it.
199
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
LASALLE BANK, NATIONAL ASSOCIATION, Trustee
By: /s/ Xxx X. Xxxxx
-----------------------------------------
Name: Xxx X. Xxxxx
Title: Assistant Vice President
ABN AMRO BANK N.V.,
Fiscal Agent
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
200
EXHIBIT A-1
CLASS X-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Notional Amount of this Class X-1
Variable Certificate as of the Issue Date: $___,___,___
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class X-1
June 1, 2002 Certificates as of the Issue Date: $737,674,251
Cut-off Date: With respect to any Mortgage Aggregate unpaid principal balance of the Mortgage
Loan, the Due Date for such Mortgage Loan in Loans as of their respective Cut-off Dates, after
June 2002 deducting payments of principal due on or before such
date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 UW0
GMAC Commercial Mortgage Corporation
Certificate No. X-1-_ ISIN No. US361849UW09
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
A-1-1
MORTGAGE CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class X-1 Certificate (obtained by
dividing the notional principal amount of this Class X-1 Certificate (its
"Certificate Notional Amount") as of the Issue Date by the aggregate notional
principal balance of all the Class X-1 Certificates (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class X-1 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, the capitalized terms used herein have
the respective
A-1-2
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class X-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class X-1
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) and such Certificateholder is the registered owner of all
the Class X-1 Certificates, or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series 2002-C2 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class X-1 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class X-1
Certificates are exchangeable for new Class X-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class X-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
A-1-3
No transfer of any Class X-1 Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class X-1 Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class X-1 Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
X-1 Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class X-1 Certificates
may be resold, pledged or transferred only (a) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class X-1 Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class X-1 Certificate without
registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class X-1
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class X-1 Certificate without registration or qualification. Any Class X-1
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class X-1 Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class X-1 Certificate or any interest therein shall
be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTE 95-60) and the conditions set forth in Sections I and III of
PTE 95-60 have been satisfied as of the date of acquisition of such Certificate.
Each purchaser or transferee that is a Plan or is investing on behalf of or with
"plan assets" of a Plan will be deemed to have represented that the foregoing
conditions have been satisfied.
A-1-4
No service charge will be imposed for any registration of transfer or
exchange of Class X-1 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
X-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the 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-1-5
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-1-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:
-----------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-1 Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, as Certificate
Registrar
By:
---------------------------------------------
Authorized Officer
A-1-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced
by the within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage Pass-Through Certificate to the
following address:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Dated:
______________________________________________
Signature by or on behalf of Assignor
______________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to__________________________________
_______________________________________________________________________________
for the account of_____________________________________________________________
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and
notices should be mailed to ________________________________________________.
This information is provided by _____________________________________
____________________________________, the assignee named above, or___________
___________________________________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
CLASS X-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Notional Amount of this Class X-2
Variable Certificate as of the Issue Date: $___,___,___
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class X-2 Certificates
June 1, 2002 as of the Issue Date: $608,899,000
Cut-off Date: With respect to any Mortgage Aggregate unpaid principal balance of the Mortgage
Loan, the Due ate for such Mortgage Loan in Loans as of their respective Cut-off Dates, after
June 2002 deducting payments of principal due on or before such
date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 UX8 GMAC
Commercial Mortgage Corporation
Certificate No. X-2-_ ISIN No. US361849UX81
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
A-2-1
MORTGAGE CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class X-2 Certificate (obtained by
dividing the notional principal amount of this Class X-2 Certificate (its
"Certificate Notional Amount") as of the Issue Date by the aggregate notional
principal balance of all the Class X-2 Certificates (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class X-2 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, the capitalized terms used herein have
the respective
A-2-2
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class X-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class X-2
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) and such Certificateholder is the registered owner of all
the Class X-2 Certificates, or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series 2002-C2 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class X-2 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class X-2
Certificates are exchangeable for new Class X-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class X-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
A-2-3
No transfer of any Class X-2 Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class X-2 Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class X-2 Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
X-2 Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class X-2 Certificates
may be resold, pledged or transferred only (a) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class X-2 Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class X-2 Certificate without
registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class X-2
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class X-2 Certificate without registration or qualification. Any Class X-2
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class X-2 Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class X-2 Certificate or any interest therein shall
be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTE 95-60) and the conditions set forth in Sections I and III of
PTE 95-60 have been satisfied as of the date of acquisition of such Certificate.
Each purchaser or transferee that is a Plan or is investing on behalf of or with
"plan assets" of a Plan will be deemed to have represented that the foregoing
conditions have been satisfied.
A-2-4
No service charge will be imposed for any registration of transfer or
exchange of Class X-2 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
X-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the 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-2-5
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-2-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:______________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-2 Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, as Certificate
Registrar
By:_______________________________________________
Authorized Officer
A-2-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
_______________________________________________________________________________
Dated:
______________________________________________
Signature by or on behalf of Assignor
______________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to__________________________________
_______________________________________________________________________________
for the account of_____________________________________________________________
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and
notices should be mailed to ________________________________________________.
This information is provided by _____________________________________
____________________________________, the assignee named above, or___________
___________________________________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
CLASS A-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class A-1
4.321% per annum Certificate as of the Issue Date: $56,917,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-1
June 1, 2002 Certificates as of the Issue Date: $56,917,000
Cut-off Date: With respect to any Mortgage Aggregate unpaid principal balance of the Mortgage Pool
Loan, the Due Date for such Mortgage Loan in as of the respective Cut-off Dates of the Mortgage
June 2002 Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VN9
GMAC Commercial Mortgage Corporation
Certificate No. A-1 ISIN No. US361849VN90
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-3-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS
M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES IS REDUCED TO
ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN
CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-1 Certificate (obtained by
dividing the principal balance of this Class A-1 Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-1 Certificates (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
A-1 Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
A-3-2
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class A-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class A-1
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2002-C2 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class A-1 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement
A-3-3
and subject to certain limitations therein set forth, Class A-1 Certificates are
exchangeable for new Class A-1 Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class A-1 Certificate or any interest therein shall
be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of transfer or
exchange of Class A-1 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
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
A-3-4
following the earlier of: (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in the Trust Fund; (ii) as permitted, but not required, by the
Agreement, the purchase by the Master Servicer, the Majority Certificateholder
of the Controlling Class or the Depositor, at a price determined as provided in
the Agreement, of all Mortgage Loans and any REO Properties remaining in the
Trust Fund if the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase is less than 1% of the aggregate Cut-off Date Principal Balance
of the Mortgage Pool specified on the face hereof; or (iii) as permitted, but
not required, by the Agreement, the exchange by the Majority Certificateholder
of the Controlling Class of all of the Certificates (other than the Residual
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund on any Distribution Date on which the aggregate Certificate
Balance of the Class A, Class B, Class C, Class D, Class E, Class F
Certificates, Class G Certificates and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the 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-3-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:_______________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, as Certificate
Registrar
By:________________________________________________
Authorized Officer
A-3-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
______________________________________________
Signature by or on behalf of Assignor
______________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of_____________________________________________________________
Distributions made by check (such check to be made payable to
___________________________________________) and all applicable statements and
notices should be mailed to __________________________________________________.
This information is provided by ____________________________________,
the assignee named above, or___________________________________________________
___________________________________, as its agent.
X-0-0
XXXXXXX X-0
CLASS A-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class A-2
5.389% per annum Certificate as of the Issue Date: $122,788,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-2
June 1, 2002 Certificates as of the Issue Date: $122,788,000
Cut-off Date: With respect to any Mortgage Aggregate unpaid principal balance of the Mortgage Pool
Loan, the Due Date for such Mortgage Loan in as of the respective Cut-off Dates of the Mortgage
June 2002 Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VP4
GMAC Commercial Mortgage Corporation
Certificate No. X-0 XXXX Xx. XX000000XX00
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-4-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS
M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES IS REDUCED TO
ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN
CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-2 Certificate (obtained by
dividing the principal balance of this Class A-2 Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-2 Certificates (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
A-2 Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
A-4-2
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class A-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class A-2
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2002-C2 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class A-2 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement
A-4-3
and subject to certain limitations therein set forth, Class A-2 Certificates are
exchangeable for new Class A-2 Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class A-2 Certificate or any interest therein shall
be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of transfer or
exchange of Class A-2 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
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
A-4-4
following the earlier of: (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in the Trust Fund; (ii) as permitted, but not required, by the
Agreement, the purchase by the Master Servicer, the Majority Certificateholder
of the Controlling Class or the Depositor, at a price determined as provided in
the Agreement, of all Mortgage Loans and any REO Properties remaining in the
Trust Fund if the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase is less than 1% of the aggregate Cut-off Date Principal Balance
of the Mortgage Pool specified on the face hereof; or (iii) as permitted, but
not required, by the Agreement, the exchange by the Majority Certificateholder
of the Controlling Class of all of the Certificates (other than the Residual
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund on any Distribution Date on which the aggregate Certificate
Balance of the Class A, Class B, Class C, Class D, Class E, Class F
Certificates, Class G Certificates and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the 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-4-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:___________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, as Certificate
Registrar
By:_____________________________________________
Authorized Officer
A-4-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to__________________________________
_______________________________________________________________________________
for the account of_____________________________________________________________
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and
notices should be mailed to ________________________________________________.
This information is provided by _____________________________________
____________________________________, the assignee named above, or___________
___________________________________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
CLASS A-3 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class A-3
5.713% per annum Certificate as of the Issue Date: $396,603,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-3
June 1, 2002 Certificates as of the Issue Date: $396,603,000
Cut-off Date: With respect to any Mortgage Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: USIP No. 361849 VM1
GMAC Commercial Mortgage Corporation
Certificate No. A-3 ISIN No. US361849VM18
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-5-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS
M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES IS REDUCED TO
ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN
CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-3 Certificate (obtained by
dividing the principal balance of this Class A-3 Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-3 Certificates (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
A-3 Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
A-5-2
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class A-3 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class A-3
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2002-C2 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class A-3 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement
A-5-3
and subject to certain limitations therein set forth, Class A-3 Certificates are
exchangeable for new Class A-3 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-3 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-3 Certificate or any interest therein shall
be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of transfer or
exchange of Class A-3 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-3 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement
A-5-4
following the earlier of: (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in the Trust Fund; (ii) as permitted, but not required, by the
Agreement, the purchase by the Master Servicer, the Majority Certificateholder
of the Controlling Class or the Depositor, at a price determined as provided in
the Agreement, of all Mortgage Loans and any REO Properties remaining in the
Trust Fund if the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase is less than 1% of the aggregate Cut-off Date Principal Balance
of the Mortgage Pool specified on the face hereof; or (iii) as permitted, but
not required, by the Agreement, the exchange by the Majority Certificateholder
of the Controlling Class of all of the Certificates (other than the Residual
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund on any Distribution Date on which the aggregate Certificate
Balance of the Class A, Class B, Class C, Class D, Class E, Class F
Certificates, Class G Certificates and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the 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-5-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:____________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, 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
CLASS B MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class B
5.841% per annum Certificate as of the Issue Date: $28,584,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class B Certificates
June 1, 2002 as of the Issue Date: $28,584,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VQ2
GMAC Commercial Mortgage Corporation
Certificate No. X-0 XXXX Xx. XX000000XX00
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-6-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1 AND CLASS X-2 CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED
IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2 AND CLASS A-3 CERTIFICATES OF THE SAME SERIES. IN ADDITION,
FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES IS REDUCED
TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN
CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class B Certificate (obtained by dividing
the principal balance of this Class B Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal 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
A-6-2
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class B Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class B Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2002-C2 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain
A-6-3
expenses incurred, with respect to the Mortgage Loans and the payment of
interest on such advances and expenses.
The Class B Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class B
Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class B Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or Section 4975 of the Code
(each, a "Plan"), or (B) to any Person who is directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with "plan assets" of a Plan, unless such Plan qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of transfer or
exchange of Class B Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
B Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate 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,
A-6-4
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the 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.
LaSalle Bank National Association, as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, 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
CLASS C MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class C
5.890% per annum Certificate as of the Issue Date: $8,299,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class C Certificates
June 1, 2002 as of the Issue Date: $8,299,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VR0
GMAC Commercial Mortgage Corporation
Certificate No. C-1 ISIN No. US361849VR05
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-7-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2 AND CLASS B CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3 AND CLASS B CERTIFICATES OF THE SAME SERIES. IN
ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL
BALANCE OF THE CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K,
CLASS L, CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES
IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN
UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class C Certificate (obtained by dividing
the principal balance of this Class C Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class C Certificates (their "Class Principal Balance") as of the Issue Date) in
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
A-7-2
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class C Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class C Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 2002-C2 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain
A-7-3
expenses incurred, with respect to the Mortgage Loans and the payment of
interest on such advances and expenses.
The Class C Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class C
Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class C Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or Section 4975 of the Code
(each, a "Plan"), or (B) to any Person who is directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with "plan assets" of a Plan, unless such Plan qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of transfer or
exchange of Class C Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
C Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate 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,
A-7-4
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66-2/3% of the 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-7-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle Bank National Association, as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, 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
CLASS D MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class D
5.919% per annum Certificate as of the Issue Date: $23,053,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class D Certificates
June 1, 2002 as of the Issue Date: $23,053,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VS8
GMAC Commercial Mortgage Corporation
Certificate No. D-1 ISIN No. US361849VS87
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-8-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B AND CLASS C CERTIFICATES OF THE SAME SERIES, AS AND TO
THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B AND CLASS C CERTIFICATES OF THE SAME
SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K,
CLASS L, CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES
IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN
UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class D Certificate (obtained by dividing
the principal balance of this Class D Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class D Certificates (their "Class Principal Balance") as of the Issue Date) in
A-8-2
that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class D Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class D Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may
A-8-3
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class D Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class D Certificates are exchangeable for new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class D Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class D Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class D Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class D Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is
A-8-4
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-8-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:__________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, as Certificate
Registrar
By:__________________________________________
Authorized Officer
A-8-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to__________________________________
_______________________________________________________________________________
for the account of_____________________________________________________________
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and
notices should be mailed to ________________________________________________.
This information is provided by _____________________________________
____________________________________, the assignee named above, or___________
___________________________________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
CLASS E MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this Class E
5.979% per annum Certificate as of the Issue Date: $7,376,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class E Certificates
June 1, 2002 as of the Issue Date: $7,376,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VT6
GMAC Commercial Mortgage Corporation
Certificate No. X-0 XXXX Xx. XX000000XX00
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-9-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C AND CLASS D CERTIFICATES OF THE SAME SERIES, AS
AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C AND CLASS D CERTIFICATES OF
THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCES OF THE CLASS F, CLASS G, CLASS H, CLASS J, CLASS
K, CLASS L, CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME
SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND
CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class E Certificate (obtained by dividing
the principal balance of this Class E Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class E Certificates (their "Class Principal Balance") as of the Issue Date) in
A-9-2
that certain beneficial ownership interest evidenced by all the Class E
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class E Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class E Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may
A-9-3
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class E Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class E Certificates are exchangeable for new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class E Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class E Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class E Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class E Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is
A-9-4
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-9-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:
------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, as Certificate
Registrar
By:
------------------------------------------------
Authorized Officer
A-9-6
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.
A-9-7
EXHIBIT A-10
CLASS F MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 6.313% per annum or the Certificate Principal Balance of this Class F
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $9,221,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class F Certificates
June 1, 2002 as of the Issue Date: $9,221,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 UY6
GMAC Commercial Mortgage Corporation
Certificate No. X-0 XXXX Xx. XX000000XX00
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-10-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES OF THE SAME
SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D AND CLASS E
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS G, CLASS H, CLASS J, CLASS
K, CLASS L, CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME
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
A-10-2
EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class F Certificate (obtained by dividing
the principal balance of this Class F Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class F Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class F Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class F Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
A-10-3
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class F Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class F Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class F Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class F Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class F Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
F Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class F Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate
A-10-4
Registrar is obligated to register or qualify the Class F Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class F Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class F
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class F Certificate without registration or qualification. Any Class F
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class F Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class F Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class F Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class F Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect
A-10-5
thereto) of the last Mortgage Loan or REO Property remaining in the Trust Fund;
(ii) as permitted, but not required, by the Agreement, the purchase by the
Master Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor, at a price determined as provided in the Agreement, of all Mortgage
Loans and any REO Properties remaining in the Trust Fund if the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase is less than 1%
of the aggregate Cut-off Date Principal Balance of the Mortgage Pool specified
on the face hereof; or (iii) as permitted, but not required, by the Agreement,
the exchange by the Majority Certificateholder of the Controlling Class of all
of the Certificates (other than the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-10-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, as Certificate
Registrar
By:
------------------------------------------------
Authorized Officer
A-10-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to__________________________________
_______________________________________________________________________________
for the account of_____________________________________________________________
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and
notices should be mailed to ________________________________________________.
This information is provided by _____________________________________
____________________________________, the assignee named above, or___________
___________________________________________________________________________,
as its agent.
A-10-8
EXHIBIT A-11
CLASS G MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 6.412% per annum or the Certificate Principal Balance of this Class G
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $12,910,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class G Certificates
June 1, 2002 as of the Issue Date: $12,910,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2001 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 UZ3
GMAC Commercial Mortgage Corporation
Certificate No. X-0 XXXX Xx. XX000000XX00
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY 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,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F CERTIFICATES OF
THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE 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
A-11-2
EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class G Certificate (obtained by dividing
the principal balance of this Class G Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class G Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class G Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class G Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
A-11-3
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class G Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class G Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class G Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class G Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
G Certificates for its own account or for the account 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
A-11-4
Registrar is obligated to register or qualify the Class G Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class G Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class G
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class G Certificate without registration or qualification. Any Class G
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class G Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class G Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class G Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class G Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect
A-11-5
thereto) of the last Mortgage Loan or REO Property remaining in the Trust Fund;
(ii) as permitted, but not required, by the Agreement, the purchase by the
Master Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor, at a price determined as provided in the Agreement, of all Mortgage
Loans and any REO Properties remaining in the Trust Fund if the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase is less than 1%
of the aggregate Cut-off Date Principal Balance of the Mortgage Pool specified
on the face hereof; or (iii) as permitted, but not required, by the Agreement,
the exchange by the Majority Certificateholder of the Controlling Class of all
of the Certificates (other than the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-11-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, as Certificate
Registrar
By:
-------------------------------------------------
Authorized Officer
A-11-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to__________________________________
_______________________________________________________________________________
for the account of_____________________________________________________________
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and
notices should be mailed to ________________________________________________.
This information is provided by _____________________________________
____________________________________, the assignee named above, or___________
___________________________________________________________________________,
as its agent.
A-11-8
EXHIBIT A-12
CLASS H MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 6.756% per annum or the Certificate Principal Balance of this Class H
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $9,220,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class H Certificates
June 1, 2002 as of the Issue Date: $9,220,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VA7
GMAC Commercial Mortgage Corporation
Certificate No. X-0 XXXX Xx. XX000000XX00
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-12-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND
CLASS G CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON
WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS J, CLASS K,
CLASS L, CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME 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
A-12-2
EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class H Certificate (obtained by dividing
the principal balance of this Class H Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class H Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class H
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class H Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class H Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
A-12-3
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class H Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class H Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class H Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class H Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
H Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class H Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate
A-12-4
Registrar is obligated to register or qualify the Class H Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class H Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class H
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class H Certificate without registration or qualification. Any Class H
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class H Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class H Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act and either (1) at the time of such transfer, such Certificate
continues to be rated in one of the top four rating categories by at least one
Rating Agency or (2) such Plan is an "insurance company general account" (within
the meaning of PTCE 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied as of the date of acquisition of such
Certificate. Each purchaser or transferee that is a Plan or is investing on
behalf of or with "plan assets" of a Plan will be deemed to have represented
that the foregoing conditions have been satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class H Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class H Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect
A-12-5
thereto) of the last Mortgage Loan or REO Property remaining in the Trust Fund;
(ii) as permitted, but not required, by the Agreement, the purchase by the
Master Servicer, the Majority Certificateholder of the Controlling Class or the
Depositor, at a price determined as provided in the Agreement, of all Mortgage
Loans and any REO Properties remaining in the Trust Fund if the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase is less than 1%
of the aggregate Cut-off Date Principal Balance of the Mortgage Pool specified
on the face hereof; or (iii) as permitted, but not required, by the Agreement,
the exchange by the Majority Certificateholder of the Controlling Class of all
of the Certificates (other than the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-12-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, as Certificate
Registrar
By:
-------------------------------------------------
Authorized Officer
A-12-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to__________________________________
_______________________________________________________________________________
for the account of_____________________________________________________________
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and
notices should be mailed to ________________________________________________.
This information is provided by _____________________________________
____________________________________, the assignee named above, or___________
___________________________________________________________________________,
as its agent.
A-12-8
EXHIBIT A-13
CLASS J MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.780% per annum or the Certificate Principal Balance of this Class J
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $11,066,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class J Certificates
June 1, 2002 as of the Issue Date: $11,066,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VB5
GMAC Commercial Mortgage Corporation
Certificate No. J-1 ISIN No. US361849VB52
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-13-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G AND CLASS H CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME 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.
A-13-2
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class J Certificate (obtained by dividing
the principal balance of this Class J Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class J Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class J
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class J Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class J Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and
A-13-3
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such distribution is made upon this
Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class J Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class J Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class J Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class J Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
J Certificates for its own account or for the account of a qualified
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
A-13-4
transfer of any Class J Certificate without registration or qualification. Any
Class J Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class J Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class J Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class J Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class J Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class J Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
A-13-5
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-13-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, 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
CLASS K MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.780% per annum or the Certificate Principal Balance of this Class K
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $12,909,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class K Certificates
June 1, 2002 as of the Issue Date: $12,909,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VC3
GMAC Commercial Mortgage Corporation
Certificate No. K-1 ISIN No. US361849VC36
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-14-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H
AND CLASS J CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN
THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H AND CLASS J CERTIFICATES OF THE SAME SERIES. IN ADDITION,
FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE
CLASS L, CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES
ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN
UNANTICIPATED
A-14-2
EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class K Certificate (obtained by dividing
the principal balance of this Class K Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class K Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class K
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class K Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class K Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
A-14-3
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class K Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class K Certificates are exchangeable for new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class K Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class K Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class K Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class K Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
K Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class K Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate
A-14-4
Registrar is obligated to register or qualify the Class K Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class K Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class K
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class K Certificate without registration or qualification. Any Class K
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class K Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class K Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class K Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class K Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class K Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
A-14-5
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-14-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, 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
CLASS L MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.780% per annum or the Certificate Principal Balance of this Class L
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $5,532,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class L Certificates
July 1, 2001 as of the Issue Date: $5,532,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VD1
GMAC Commercial Mortgage Corporation
Certificate No. L-1 ISIN No. US361849VD19
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-15-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES. IN
ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL
BALANCES OF THE CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME
SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
A-15-2
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class L Certificate (obtained by dividing
the principal balance of this Class L Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class L Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class L
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class L Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class L Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
A-15-3
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class L Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class L Certificates are exchangeable for new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class L Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class L Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class L Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class L Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
L Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class L Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate
A-15-4
Registrar is obligated to register or qualify the Class L Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class L Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class L
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class L Certificate without registration or qualification. Any Class L
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class L Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class L Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class L Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class L Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class L Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
A-15-5
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-15-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, 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
CLASS M MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.780% per annum or the Certificate Principal Balance of this Class M
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $5,533,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class M Certificates
June 1, 2002 as of the Issue Date: $5,533,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VE9
GMAC Commercial Mortgage Corporation
Certificate No. X-0 XXXX Xx. XX000000XX00
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-16-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K AND CLASS L CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J, CLASS K AND CLASS L CERTIFICATES OF THE SAME SERIES.
IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL
BALANCES OF THE CLASS N, CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED IN CONNECTION WITH
A-16-2
LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class M Certificate (obtained by dividing
the principal balance of this Class M Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class M Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class M
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class M Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class M Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
A-16-3
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class M Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class M Certificates are exchangeable for new Class M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class M Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class M Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class M Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
M Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class M Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate
A-16-4
Registrar is obligated to register or qualify the Class M Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class M Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class M
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class M Certificate without registration or qualification. Any Class M
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class M Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class M Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class M Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class M Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class M Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
A-16-5
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-16-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, 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
CLASS N MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.780% per annum or the Certificate Principal Balance of this Class N
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $9,221,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class N Certificates
June 1, 2002 as of the Issue Date: $9,221,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VF6
GMAC Commercial Mortgage Corporation
Certificate No. N-1 ISIN No. US361849VF66
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-17-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K, CLASS L AND CLASS M CERTIFICATES OF THE SAME SERIES, AS AND TO
THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, 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 BALANCES OF THE CLASS O AND CLASS P CERTIFICATES OF THE SAME SERIES
ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE REDUCED IN CONNECTION WITH
A-17-2
LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class N Certificate (obtained by dividing
the principal balance of this Class N Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class N Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class N
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class N Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class N Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
A-17-3
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class N Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class N Certificates are exchangeable for new Class N Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class N Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class N Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class N Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class N Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
N Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such 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
A-17-4
Registrar is obligated to register or qualify the Class N Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class N Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class N
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class N Certificate without registration or qualification. Any Class N
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class N Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class N Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class N Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class N Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class N Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
A-17-5
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-17-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, as Certificate
Registrar
By:
-------------------------------------------------
Authorized Officer
A-17-7
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-17-8
EXHIBIT A-18
CLASS O MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.780% per annum or the Certificate Principal Balance of this Class O
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $3,688,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class O Certificates
June 1, 2002 as of the Issue Date: $3,688,000
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VG4
GMAC Commercial Mortgage Corporation
Certificate No. X-0 XXXX Xx. XX000000XX00
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-18-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES OF THE SAME SERIES,
AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES OF
THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS P CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED IN CONNECTION WITH
A-18-2
LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class O Certificate (obtained by dividing
the principal balance of this Class O Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class O Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class O
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class O Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class O Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
A-18-3
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class O Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class O Certificates are exchangeable for new Class O Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class O Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class O Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class O Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class O Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
O Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such 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
A-18-4
Registrar is obligated to register or qualify the Class O Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class O Certificate
without registration or qualification. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class O
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class O Certificate without registration or qualification. Any Class O
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class O Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Any purchaser of a Class O Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class O Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class O Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class O Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
A-18-5
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-18-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, 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
CLASS P MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Lesser of 5.780% per annum or the Certificate Principal Balance of this Class P
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $14,754,251
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class P Certificates
June 1, 2002 as of the Issue Date: $14,754,251
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VH2
GMAC Commercial Mortgage Corporation
Certificate No. X-0 XXXX Xx. XX000000XX00
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-19-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES OF THE SAME
SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES AND CONDITIONS SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O
CERTIFICATES OF THE SAME SERIES. IN ADDITION, THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE
LOANS AND CERTAIN UNANTICIPATED EXPENSES.
A-19-2
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class P Certificate (obtained by dividing
the principal balance of this Class P Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class P Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class P
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class P Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class P Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and
A-19-3
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such distribution is made upon this
Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class P Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class P Certificates are exchangeable for new Class P Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class P Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class P Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class P Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as Exhibit B-2 to the Agreement. Any
purchaser of a Class P Certificate shall be deemed to have represented by such
purchase that it is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act, that it is aware that the sale
to it is being made in reliance on Rule 144A and that it is acquiring the Class
P Certificates for its own account or for the account of a qualified
institutional buyer, and that it understands that such Class P Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act. None
of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify the Class P Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to
A-19-4
permit the transfer of any Class P Certificate without registration or
qualification. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify the Class P Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class P Certificate
without registration or qualification. Any Class P Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class P Certificate
agrees to, indemnify the Depositor, the Trustee and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Any purchaser of a Class P Certificate or any interest therein
will be deemed to have represented by such purchase that either (a) such
purchaser is not an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each a "Plan") and is not purchasing such Certificate by or on behalf of,
or with "plan assets" of, any Plan or (b) the purchase of any such Certificate
by or on behalf of, or with "plan assets" of, any Plan is permissible under
applicable law, will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code, and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following conditions are met: (i) such Plan qualifies
as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (ii) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in PTCE 95-60) and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate. The Trustee may
require that any prospective transferee of a Class P Certificate that is held as
a Definitive Certificate provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" of a Plan or that the
conditions of an acceptable alternative representation are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class P Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class P Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
A-19-5
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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-19-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association, as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association, 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 A-20
CLASS R-I MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in
June 1, 2002 the related Class: 100%
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VJ8
GMAC Commercial Mortgage Corporation
Certificate No. R-I-1 ISIN No. US361849VJ88
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
GMAC COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3,
CLASS X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O AND CLASS P
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
A-20-1
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY
BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC")
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that Credit Suisse First Boston Corporation is the
registered owner of the Percentage Interest evidenced by this Class R-I
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class R-I Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified 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
A-20-2
Certificate and the amount required to be distributed to the Holders of the
Class R-I Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class R-I
Certificate will be made by the Trustee by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-I Certificates are
exchangeable for new Class R-I Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-I Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-I Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a 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
A-20-3
Certificate agrees to, indemnify the Depositor, the Trustee and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No transfer of a Class R-I Certificate or any interest therein
shall be made to (A) any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing
the Class R-I Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and a United States Person and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit C-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its Ownership Interest unless
it provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United 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
A-20-4
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-I Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-I Certificate
to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, and (v) any
electing large partnership under Section 775 of the Code and/or any other Person
so designated by the Trustee based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Class R-I Certificate by such Person may cause the
Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R-I Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust.
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
A-20-5
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Class R-I Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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 REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
A-20-6
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-20-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association,
as Certificate Registrar
By:
-------------------------------------------------
Authorized Officer
A-20-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to__________________________________
_______________________________________________________________________________
for the account of_____________________________________________________________
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and
notices should be mailed to ________________________________________________.
This information is provided by _____________________________________
____________________________________, the assignee named above, or___________
___________________________________________________________________________,
as its agent.
A-20-9
EXHIBIT A-21
CLASS R-II MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in
June 1, 2002 the related Class: 100%
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VK5
GMAC Commercial Mortgage Corporation
Certificate No. R-II-1 ISIN No. US361849VK51
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF
THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER
A-21-1
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY
BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that Credit Suisse First Boston Corporation is
the registered owner of the Percentage Interest evidenced by this Class R-II
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class R-II Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified 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
A-21-2
Certificate and the amount required to be distributed to the Holders of the
Class R-II Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class R-II
Certificate will be made by the Trustee by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-II Certificates are
exchangeable for new Class R-II Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-II Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-II Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Agreement and a 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
A-21-3
Certificate agrees to, indemnify the Depositor, the Trustee and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No transfer of a Class R-II Certificate or any interest
therein shall be made to (A) any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or Section 4975
of the Code (each, a "Plan") or (B) any Person who is directly or indirectly
purchasing the Class R-II Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and a United States Person and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit C-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its Ownership Interest unless
it provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United 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
A-21-4
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-II Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-II
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, and (v) any
electing large partnership under Section 775 of the Code and/or any other Person
so designated by the Trustee based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Class R-II Certificate by such Person may cause
the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R-II Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust.
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
A-21-5
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Class R-II Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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 REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
A-21-6
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-21-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association,
as Certificate Registrar
By:
-------------------------------------------------
Authorized Officer
A-21-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to__________________________________
_______________________________________________________________________________
for the account of_____________________________________________________________
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and
notices should be mailed to ________________________________________________.
This information is provided by _____________________________________
____________________________________, the assignee named above, or___________
___________________________________________________________________________,
as its agent.
A-21-9
EXHIBIT A-22
CLASS R-III MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-C2
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in
June 1, 2002 the related Class: 100%
Cut-off Date: With respect to any Mortgage Loan, the Due Aggregate unpaid principal balance of the Mortgage Pool
Date for such Mortgage Loan in June 2002 as of the respective Cut-off Dates of the Mortgage
Loans, after deducting payments of principal due on or
before such date, whether or not received: $737,674,252
Issue Date: June 27, 2002
First Distribution Date: July 15, 2002 Trustee: LaSalle Bank National Association
Master Servicer and Special Servicer: CUSIP No. 361849 VL3
GMAC Commercial Mortgage Corporation
Certificate No. R-III-1 ISIN No. US361849VL35
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES OF
THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER
A-22-1
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY
BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that Credit Suisse First Boston Corporation is
the registered owner of the Percentage Interest evidenced by this Class R-III
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class R-III Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V., as Fiscal
Agent. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the First Distribution Date specified 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
A-22-2
Certificate and the amount required to be distributed to the Holders of the
Class R-III Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class R-III
Certificate will be made by the Trustee by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
2002-C2 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-III Certificates are
exchangeable for new Class R-III Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-III Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-III Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If such a transfer of any Class
R-III Certificate (other than a transfer thereof by the Depositor or any
Affiliate of the Depositor) is to be made without registration under the
Securities Act, then the Trustee shall require, in order to assure compliance
with such laws, receipt by it and the Depositor of a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit B-1 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
A-22-3
the acceptance of its Class R-III Certificate agrees to, indemnify the
Depositor, the Trustee and the Certificate Registrar against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of a Class R-III Certificate or any interest
therein shall be made to (A) any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or Section 4975
of the Code (each, a "Plan") or (B) any Person who is directly or indirectly
purchasing the Class R-III Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and a United States Person and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit C-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its Ownership Interest unless
it provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United 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
A-22-4
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-III Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-III
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, and (v) any
electing large partnership under Section 775 of the Code and/or any other Person
so designated by the Trustee based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Class R-III Certificate by such Person may cause
the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R-III Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in Treasury
regulations), an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust.
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
A-22-5
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Class R-III Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of: (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; (ii) as permitted, but not required, by the Agreement, the purchase
by the Master Servicer, the Majority Certificateholder of the Controlling Class
or the Depositor, at a price determined as provided in the Agreement, of all
Mortgage Loans and any REO Properties remaining in the Trust Fund if the
aggregate Stated Principal Balance of the Mortgage Pool at the time of purchase
is less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Pool specified on the face hereof; or (iii) as permitted, but not required, by
the Agreement, the exchange by the Majority Certificateholder of the Controlling
Class of all of the Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust Fund on any
Distribution Date on which the aggregate Certificate Balance of the Class A,
Class B, Class C, Class D, Class E, Class F Certificates, Class G Certificates
and Class H Certificates is reduced to zero.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the 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 REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
A-22-6
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-22-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
LaSalle Bank National Association,
as Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
Dated: June 27, 2002
LaSalle Bank National Association,
as Certificate Registrar
By:
-------------------------------------------------
Authorized Officer
A-22-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the
within Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Mortgage Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to__________________________________
_______________________________________________________________________________
for the account of_____________________________________________________________
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and
notices should be mailed to ________________________________________________.
This information is provided by _____________________________________
____________________________________, the assignee named above, or___________
___________________________________________________________________________,
as its agent.
A-22-9
EXHIBIT B-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services,
GMAC Mortgage Pass-Through Certificates Series 2002-C2
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2002-C2, [Class X-1] [Class
X-2] [Class F] [Class G] [Class H] [Class J] [Class K] [Class
L] [Class M] [Class N] [Class O] [Class P] [Class R-I] [Class
R-II] [Class R-III], [having an initial principal
balance/initial notional amount as of June 27, 2002 of $_____]
[evidencing a _____% Percentage Interest in such Class].
Dear Sirs:
This letter is delivered to you in connection with the transfer by ____
_______________________ (the "Transferor") to __________________________________
(the "Transferee") of the captioned Certificates (the "Certificates"), pursuant
to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of June 1, 2002, among GMAC Commercial Mortgage
Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer and Special Servicer, LaSalle Bank National Association, as Trustee and
ABN AMRO Bank N.V. as Fiscal Agent. All terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Certificates with the full
right to transfer the Certificates free from any and all claims and encumbrances
whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with any person in any manner, (d) made any general
solicitation with respect to the Certificates, any interest in the Certificates
or any other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to the Certificates, any
interest in the Certificates or any other similar security, which (in the case
of any of the acts described in clauses (a) through (e) hereof) would constitute
a distribution under the Securities Act of 1933 (the "Securities Act"), or would
render the disposition of the Certificates a violation of Section 5
B-1-1
of the Securities Act or any state securities laws, or would require
registration or qualification of the Certificates pursuant to the Securities Act
or any state securities laws.
3. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is a "qualified institutional
buyer" (as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act) purchasing for its own account or for the account of other qualified
institutional buyers, and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Certificates.
4. The Transferor or a person acting on its behalf has taken reasonable
steps to ensure that the Transferee is aware that the Transferor is relying on
the exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A.
5. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement, and
(d) any credit enhancement mechanism associated with the Certificates, that the
Transferee has requested.
Very truly yours,
Print Name of Transferor
By: __________________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF TRANSFEREE CERTIFICATE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services,
GMAC Mortgage Pass-Through Certificates Series 2002-C2
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2002-C2, [Class X-1] [Class
X-2] [Class F] [Class G] [Class H] [Class J] [Class K] [Class
L] [Class M] [Class N] [Class O] [Class P] [Class R-I] [Class
R-II] [Class R-III], [having an initial principal balance/
initial notional amount as of June 27, 2002 of $[________]
[evidencing a _____% Percentage Interest in such Class].
Dear Sirs:
This letter is delivered to you in connection with the transfer by ____
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Certificates"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of June 1, 2002 among GMAC Commercial Mortgage Securities,
Inc., as Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and
Special Servicer, LaSalle Bank National Association, as Trustee and ABN AMRO
Bank N.V., as Fiscal Agent. All terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933 (the
"Securities Act") and has completed one of the forms of certification to that
effect attached hereto as Annex 1 and Annex 2. The Transferee is aware that the
sale to it is being made in reliance on Rule 144A. The Transferee is acquiring
the Certificates for its own account or for the account of a qualified
institutional buyer, and understands that such Certificates may be resold,
pledged or transferred only (a) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding (a)
the Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement, and
(d) any credit enhancement mechanism associated with the Certificates, that it
has requested.
B-2-1
3. If the Transferee proposes that the Certificates be registered in
the name of a nominee, such nominee has completed the Nominee Acknowledgment
below.
4. The Transferee hereby certifies to the Trustee, the Depositor and
the Master Servicer that such transfer is permissible under applicable law,
either (a) such Transferee is not an "employee benefit plan" (within the meaning
of Section 3(3) of ERISA) that is subject to ERISA, a "plan" (within the meaning
of Section 4975 of the Code) that is subject to Section 4975 of the Code, or any
entity deemed to hold "plan assets" of any such plan (within the meaning of
United States Department of Labor ("DOL") Regulations Section 2510.3-101, or (b)
in the case of a Certificate that is not a Residual Certificate, such transfer
will not constitute or result in any non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, will not subject the
Depositor, the Trustee or the Master Servicer to any obligation in addition to
those undertaken in the Pooling and Servicing Agreement, and the following
conditions are met: (i) with respect to the Class X-1, Class X-2, Class F, Class
G and/or Class H Certificates, the prospective transferee qualifies as an
accredited investor as defined in Rule 501(a) of Regulation D of the Securities
Act and (x) at the time of such transfer, such Certificates continue to be rated
in one of the top four rating categories by at least one Rating Agency or (y)
the source of funds used to purchase the Certificates is an "insurance company
general account" (as such term is defined in DOL Prohibited Transaction Class
Exemption ("PTCE") 95-60) and the conditions set forth in Sections I and III of
PTCE 95-60 are satisfied with respect to the Transferee's purchase and holding
of the Certificates, as of the date of acquisition of such Certificate; or (ii)
with respect to the Class J, Class K, Class L, Class M, Class N, Class O and/or
Class P Certificates, (1) the prospective transferee qualifies as an accredited
investor as defined in Rule 501(a) of Regulation D of the Securities Act, (2)
the source of funds used to purchase the Certificates is an "insurance company
general account" (as such term is defined in PTCE 95-60) and (3) the conditions
set forth in Sections I and III of PTCE 95-60 are satisfied with respect to the
Transferee's purchase and holding of the Certificates, as of the date of
acquisition of such Certificates.
Very truly yours,
Print Name of Transferee
By: _______________________________________
Name:
Title:
B-2-2
NOMINEE ACKNOWLEDGMENT
The undersigned hereby acknowledges and agrees that as to the
Certificate being registered in its name, the sole beneficial owner thereof is
and shall be __________________, the Transferee identified above, for whom the
undersigned is acting as nominee.
Very truly yours,
Print Name of Nominee
By: ____________________________________
Name:
Title:
X-0-0
XXXXX 0 XX XXXXXXX X-0
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to ________________________
(the "Transferor") and __________________________, as Certificate Registrar,
with respect to the mortgage pass-through certificate (the "Certificate")
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933 ("Rule 144A"), because (i)
the Transferee owned and/or invested on a discretionary basis $_________ in
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.
--------
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
B-2-4
Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
Insurance Company. The Transferee is an insurance company whose primary
and predominant business activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940.
Other. (Please supply a brief description of the entity and a cross
reference to the paragraph and subparagraph under subsection (a)(1) of Rule 144A
pursuant to which it qualifies. Note that registered investment companies should
complete Annex 2 rather than this Annex 1).
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities that are
part of an unsold allotment to or subscription by the Transferee, if the
Transferee is a dealer, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a majority
owned, consolidated subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act of 1934.
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.
B-2-5
Will the Transferee be purchasing the Certificates only for the
Transferee's own account?
Yes [ ] No [ ]
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Certificate will
constitute a reaffirmation of this certification as of the date of such
purchase. In addition, if the Transferee is a bank or savings and loan as
provided above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
Print Name of Transferee
By: _____________________________________
Name:
Title:
Date:________________________________________________
X-0-0
XXXXX 0 XX XXXXXXX X-0
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to ________________________
(the "Transferor") and ______________________________, as Certificate Registrar,
with respect to the mortgage pass-through certificate (the "Certificate")
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Certificates (the "Transferee") or, if the Transferee is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because the Transferee is part of a Family
of Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
The Transferee owned and/or invested on a discretionary basis
$__________ in securities (other than the excluded securities referred to below)
as of the end of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
The Transferee is part of a Family of Investment Companies which owned
in the aggregate $___________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
B-2-7
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Will the Transferee be purchasing the Certificates only for the
Transferee's own account?
Yes [ ] No [ ]
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Transferee or Adviser
_________________________________________
By: ____________________________________
Name:
Title:
Date:___________________________
IF AN ADVISER:
Print Name of Transferee
_________________________________________
By: ____________________________________
Name:
Title:
Date:___________________________
B-2-8
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
State of )
) ss
County of )
_________________________________, being first duly sworn, deposes and
says that:
1. He/She is the ____________________ of _____________________________
(the prospective transferee (the "Transferee") of GMAC Commercial Mortgage
Securities, Inc., Mortgage Pass-Through Certificates, Series 2002-C2, [Class
R-I] [Class R-II] [Class R-III], evidencing a ______% Percentage Interest in
such Class (the "Residual Certificates"), a ______________ duly organized and
validly existing under the laws of _______________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement pursuant to which the Residual Certificates were issued (the
"Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account. A "Permitted Transferee" is any
Person other than a "disqualified organization" or a possession of the United
States. (For this purpose, a "disqualified organization" means the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, an electing large partnership under Section 775 of the Code, any
rural electric or telephone cooperative, or any organization (other than certain
farmers' cooperatives) that is generally exempt from federal income tax unless
such organization is subject to the tax on unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor (or, with respect to transfers to electing large
partnerships, on such partnership) or, if such transfer is through an agent
(which Person includes a broker, nominee or middleman) for a non-Permitted
Transferee, on the agent; (iii) that the Person otherwise liable for the tax
shall be relieved of liability for the tax if the transferee furnishes to such
Person (other than transfers with respect to electing large partnerships) an
affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury Regulation Section 1.860E-1(c) and that
the transferor of a "noneconomic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
C-1-1
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _______________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (ii)(A) of Section 5.02(d)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a Person other than the Transferee and clause (ii)(B) of Section 5.02(d) which
authorizes the Trustee to negotiate a mandatory sale of the Residual
Certificates, in either case, in the event that the Transferee holds such
Residual Certificates in violation of Section 5.02(d)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of
the Residual Certificates is or will be to impede the assessment or collection
of any tax.
10. The Transferee hereby represents to and for the benefit of the
Transferor that the Transferee intends and reasonably expects to have the
ability to pay any taxes associated with holding the Residual Certificates as
they become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Residual Certificates. Any financial
statements or other financial information provided by the transferee at the
request of the Transferor in connection with the transfer of the Residual
Certificates to permit the Transferor to assess the financial capability of the
Transferor to pay any such taxes is true and correct in all material respects.
11. The Transferee will, in connection with any transfer that it makes
of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit C-2 to the Pooling
and Servicing Agreement. The Transferee hereby agrees that it will not make any
transfer of any Residual Certificate unless (i) the transfer is to an entity
which is a domestic C corporation (other than an exempt corporation, a regulated
investment company, a
C-1-2
real estate investment trust, a REMIC, or a cooperative organization to which
part I of Subchapter T of the Code applies) for federal income tax purposes, and
(ii) the transfer is in compliance with the conditions set forth in paragraph 3
of Exhibit C-2 of the Pooling and Servicing Agreement.
12. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof (except, in the
case of a partnership, to the extent provided in Treasury regulations), an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust for which a court within the United States is able to exercise primary
supervision over its administration and for which one or more United States
Persons have the authority to control all substantial decisions of the trust.
13. The Transferee is not acquiring the Residual Certificates with
"plan assets" of any plan subject to Title I of ERISA or Section 4975 of the
Code.
14. [The Transferee hereby represents to and for the benefit of the
Transferor that (i) at the time of the transfer, and at the close of each of the
Transferee's two fiscal years preceding the year of transfer, the Transferee's
gross assets for financial reporting purposes exceed $100 million and its net
assets for such purposes exceed $10 million (disregarding, for purposes of
determining gross or net assets, the obligation of any person related to the
Transferee within the meaning of section 860L(g) of the Code or any other asset
if a principal purpose for holding or acquiring that asset is to permit the
Transferee to satisfy this minimum gross asset or net asset requirement), (ii)
the Transferee is a domestic C corporation for United States federal income tax
purposes that is not an exempt corporation, a regulated investment company, a
real estate investment trust, a REMIC, or a cooperative organization to which
part I of subchapter T of the Code applies, (iii) there are no facts or
circumstances on or before the date of transfer (or anticipated transfer) which
would reasonably indicate that the taxes associated with the Residual
Certificates will not be paid, and (iv) the Transferee is not a foreign branch
of a domestic corporation, the transfer does not involve a transfer or
assignment to a foreign branch of a domestic corporation (or any other
arrangement by which any Residual Certificate is at any time subject to net tax
by a foreign country or U.S. possession), and the Transferee will not hereafter
engage in any such transfer or assignment (or any such arrangement).](1)
----------
1 Bracketed text may be used if the Transferee is relying on the "non-formula
safe harbor" currently available in Revenue Procedure 2001-12.
C-1-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ______________ and its corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this ___ day of _________ ,____.
Very truly yours,
Print Name of Transferee
_______________________________________
By: __________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
---------------------------------
[Assistant] Secretary
Personally appeared before me the above-named ________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _____________________________ of the Transferee, and
acknowledged to me that he/she executed the same as his/her free act and deed
and the free act and deed of the Transferee.
Subscribed and sworn before me this _____ day of ____________ , ______.
____________________________________
NOTARY PUBLIC
COUNTY OF
------------------------------------
STATE OF
------------------------------------
My Commission expires the _____ day of
___________________ ,_________.
C-1-4
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS
OF REMIC RESIDUAL CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services,
GMAC Mortgage Pass-Through Certificates Series 2002-C2
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2002-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 June 1, 2002 (the "Pooling and
Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc., as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V.,
as Fiscal Agent. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor at the time of this transfer has conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future, and either (A) has determined that the present
value of the anticipated tax liabilities associated with the holding of the
Residual Certificate does not exceed the sum of (1) the present value of any
consideration given to the Transferee to acquire the Certificate, (2) the
present value
C-2-1
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, in the course of its trade or business, substantial funds at such lower
rate from unrelated third parties)), or (B) based on an adequate review of the
relevant facts and circumstances, neither knows nor should know that the
Transferee would be unwilling or unable to pay any taxes due on its share of the
taxable income of the REMIC.(2)
4. The Transferor understands that the transfer of the Residual
Certificates may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes associated
therewith) unless it complies with a current "safe harbor" with respect to such
transfer.
Very truly yours,
Print Name of Transferor
_____________________________________
By: ________________________________
Name:
Title:
----------
2 If reliance is upon the "non-formula safe harbor" such review would include
all of the following: (i) at the time of the transfer, and at the close of each
of the Transferee's two fiscal years preceding the year of transfer, the
Transferee's gross assets for financial reporting purposes exceed $100 million
and its net assets for such purposes exceed $10 million (disregarding, for
purposes of determining gross or net assets, the obligation of any person
related to the Transferee within the meaning of section 860L(g) of the Code or
any other asset if a principal purpose for holding or acquiring that asset is to
permit the Transferee to satisfy this minimum gross asset or net asset
requirement), (ii) the Transferee is a domestic C corporation for United States
federal income tax purposes that is not for such purposes an exempt corporation,
a regulated investment company, a real estate investment trust, a REMIC, or a
cooperative organization to which part I of subchapter T of the Code applies,
(iii) there are no facts or circumstances on or before the date of transfer (or
anticipated) which would reasonably indicate that the taxes associated with the
Residual Certificates will not be paid, (iv) the Transferee is not a foreign
branch of a domestic corporation, and (V) the transfer does not involve a
transfer or assignment to a foreign branch of a domestic corporation (or any
other arrangement by which any Residual Certificate is at any time subject to
net tax by a foreign country or U.S. possession) and the Transferee will not
hereafter engage in any such transfer or assignment (or any such arrangement).
In addition, such "safe harbor" also requires that the Transferor not know or
have reason to know that the Transferee will not honor the restrictions on
subsequent transfers of any Residual Interest described in paragraph 11 and 12
of the Transferee's Transfer Affidavit and Agreement.
C-2-2
EXHIBIT D
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans
held by you for the referenced pool, we request the release of the Mortgage Loan
File described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
Borrower Name(s):
Reason for Document Request: (indicate one)
[ ] Mortgage Loan Prepaid in Full
[ ] Mortgage Loan Repurchased or Sold
[ ] Other (specify)
-----------------------------
-------------------------------------------------
-------------------------------------------------
"We hereby certify that all amounts received or to be received in
connection with such payments which are required to be deposited have been or
will be so deposited as provided in the Pooling and Servicing Agreement."
[GMAC COMMERCIAL MORTGAGE CORPORATION]
Authorized Signature
******************************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
D-1
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other:
Name
Title
Date
D-2
EXHIBIT E
FORMS OF UCC-1 FINANCING STATEMENTS
E-1
SCHEDULE 1 TO UCC-1 FINANCING STATEMENT
---------------------------------------
All right (including the power to convey title thereto), title and interest of
the Debtor as more particularly described on Exhibit A attached hereto:
EXHIBIT A OF SCHEDULE 1 TO UCC-1 FINANCING STATEMENT
----------------------------------------------------
All right (including the power to convey title thereto), title and
interest of the Debtor, including any security interest therein for the benefit
of the Debtor, in and to the Trust Fund created pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 2002, among the Debtor as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
the Secured Party as Trustee* and ABN AMRO Bank N.V., as Fiscal Agent, with
respect to Mortgage Pass-Through Certificates, Series 2002-C2 (the "Pooling and
Servicing Agreement (Series 2002-C2)"), including:
(1) the Mortgage Loans listed on the Mortgage Loan Schedule attached
hereto;
(2) all principal and interest received or receivable with respect to
the Mortgage Loans (other than principal and interest payments due and payable
prior to the Cut-off Date and Principal Prepayments received prior to the
Cut-off Date);
(3) all amounts held from time to time in the Collection Account, the
Certificate Distribution Account, the Excess Liquidation Proceeds Reserve
Account, the Interest Reserve Account, any Special Reserve Account and the REO
Account;
(4) all of the Debtor's right, title and interest in and to the
proceeds of any title, hazard or other Insurance Policies related to such
Mortgage Loans;
(5) any and all "accounts," "general intangibles," "chattel paper" and
"instruments" (as defined in the Uniform Commercial Code as in effect from time
to time) consisting of, arising from or relating to any of the foregoing; and
(6) any and all income, payments, proceeds and products of any of the
foregoing.
Capitalized terms used herein, but not defined, shall have the
respective meanings assigned to such terms in the Pooling and Servicing
Agreement (Series 2002-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,
E-2
MORTGAGE OR DOCUMENT IN A MORTGAGE FILE. WITH RESPECT TO THE FOREGOING, THIS
FILING IS MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
*Not in its individual capacity, but solely as Trustee for the benefit
of the Certificateholders pursuant to the Pooling and Servicing Agreement
(Series 2002-C2).
E-3
MORTGAGE LOAN SCHEDULE TO UCC-1 FINANCING STATEMENT
SEE SCHEDULE I
E-4
EXHIBIT F
METHODOLOGY TO NORMALIZE NET OPERATING INCOME AND DEBT SERVICE COVERAGE
o GMAC Commercial Mortgage Corporation ("GMACCM") applies the methodology
presented below to arrive at a servicer adjusted or "Normalized" Net
Operating Income ("NOI"). The items described below highlight some of the
major categories requiring adjustment. There may, however, be others, and
GMACCM will use its market knowledge and discretion in making and
sufficiently footnoting the necessary adjustments.
o GMACCM chooses to use the actual management fee stated in the financial
statement.
o Where they are clearly identifiable, GMACCM will remove any capital expense
from any above the line categories (such as extraordinary repairs and
maintenance) and put them below the line in the capital expense comment
section.
o Replacement reserves, tenant improvements and leasing commission reserves
will be treated as above the line expenses. A determination will be made
whether there have been credits for the disbursements from a reserve and
that expenses are not overstated due to exclusion of credits.
o Property taxes should be the annual amount due, excluding any delinquent
taxes or credits from prior years which would cause the number to be higher
or lower. The amount for property taxes will be adjusted if the period under
analysis is less than one year.
o GMACCM will exclude non-recurring, extraordinary income. For example, a tax
refund, lease buyout or income received for a period other than the year in
question should be adjusted. If past due rent for a prior year was paid and
recorded in the current year, GMACCM would back it out and footnote it
accordingly. Care will be used when reflecting percentage/overage rents to
ensure that it relates to the appropriate period and that the numbers are
supported by tenant sales information.
o GMACCM will remove any items not pertaining to the operation of the property
such as, fees for closing the loan restructure, a distribution to owners or
a charitable contribution.
o When necessary, income and expenses will be analyzed by looking at variances
by category. Unusual income and expense items will be researched. If there
are significant variances, inquiries to the borrower will be made.
Appropriate adjustments will be made and footnotes provided to clearly
explain the situation.
o The debt service should be an actual amount the borrower paid per the
servicing records for the period associated with the operating statement. If
GMACCM does not have a full year of payments, it will use the principal and
interest constant in the case of a fixed rate loan and, in the case of an
adjustable rate loan, will estimate a full year amount from the payment
history information available.
F-1
EXHIBIT G
FORM OF DISTRIBUTION DATE STATEMENT
G-1
EXHIBIT H-1
FORM OF INVESTOR CERTIFICATION
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services,
GMAC Mortgage Pass-Through Certificates Series 2002-C2
In accordance with the Pooling and Servicing Agreement, dated as of
June 1, 2002 (the "Agreement"), by and among GMAC Commercial Mortgage
Securities, Inc. as Depositor, GMAC Commercial Mortgage Corporation as Master
Servicer and Special Servicer, LaSalle Bank National Association, as Trustee and
ABN AMRO Bank N.V., as Fiscal Agent, with respect to the GMAC Commercial
Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 2002-C2
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of
the Class ___ Certificates .
2. The undersigned is requesting access pursuant to the Agreement to
certain information (the "Information") on the [Trustee's website] [Master
Servicer's website] and/or is requesting the information identified on the
schedule attached hereto (also, the "Information") pursuant to the provisions of
the Agreement.
3. In consideration of the [Trustee's] [Master Servicer's] [Special
Servicer's] disclosure to the undersigned of the Information, or the access
thereto, the undersigned will keep the Information confidential (except from
such outside persons as are assisting it in making an evaluation in connection
with purchasing the related Certificates, from its accountants and attorneys,
and otherwise from such governmental or banking authorities or agencies to which
the undersigned is subject), and such Information will not, without the prior
written consent of the [Trustee] [Master Servicer] [Special Servicer], be
otherwise disclosed by the undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively, the "Representatives") in
any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate not
previously registered pursuant to Section 5 of the Securities Act.
H-1-1
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer, the Fiscal
Agent and the Trust Fund for any loss, liability or expense incurred thereby
with respect to any such breach by the undersigned or any of its
Representatives.
6. Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized signatory, as of the day and year written above.
------------------------------------------------
Beneficial Owner or Prospective Purchaser
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Company:
----------------------------------------
Phone:
------------------------------------------
cc: GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
X-0-0
XXXXXXX X-0-X
SCHEDULE TO
FORM OF INVESTOR CERTIFICATION
H-1-3
EXHIBIT H-2
FORM OF CONFIDENTIALITY AGREEMENT
[DATE]
GMAC Commercial Mortgage Corporation
Attention: GMAC Commercial Mortgage Securities, Inc., Commercial Mortgage
Pass-Through Certificates Series 2002-C2
Re: Information regarding Attention: GMAC Commercial Mortgage
Securities, Inc., Commercial Mortgage Pass-Through Certificates
Series 2002-C2
Ladies and Gentlemen:
In connection with the GMAC Commercial Mortgage Securities,
Inc., Commercial Mortgage Pass-Through Certificates Series 2002-C2 (the
"Certificates"), we acknowledge that we will be furnished by GMAC Commercial
Mortgage Corporation as Master Servicer and/or as Special Servicer (and may have
been previously furnished) with certain information (the "Information"). For the
purposes of this letter agreement (this "Agreement"), "Representative" of a
Person refers to such Person's directors, officers, employees, and agents; and
"Person" refers to any individual, group or entity.
In connection with and in consideration of our being provided
with Information, we hereby acknowledge and agree that we are requesting and
will use the Information solely for purposes of making investment decisions with
respect to the above-referenced Certificates and will not disclose such
Information to any other Person or entity unless required to do so by law;
provided such Information may be disclosed to the auditors and regulators of the
undersigned or to any person or entity that is contemplating the purchase of any
Certificate held by the undersigned or of an interest therein, but only if such
person or entity confirms in writing such contemplation of a prospective
ownership interest and agrees in writing to keep such Information confidential.
The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer, the Fiscal
Agent and the Trust Fund for any loss, liability or expense incurred thereby
with respect to any such breach by the undersigned or any of its
Representatives.
This Agreement shall not apply to any of the Information
which: (i) is or becomes generally available and known to the public other than
as a result of a disclosure directly or indirectly by us or any of our
Representatives; (ii) becomes lawfully available to us on a non-confidential
basis from a source other than you or one of your Representatives, which source
is not bound by a contractual or other obligation of confidentiality to any
Person; or (iii) was lawfully known to us on a non-confidential basis prior to
its disclosure to us by you.
H-2-1
Capitalized terms used but not defined herein shall have the
meaning assigned thereto in that certain Pooling and Servicing Agreement, dated
as of June 1, 2002, by and among GMAC Commercial Mortgage Securities, Inc. as
Depositor, GMAC Commercial Mortgage Corporation as Master Servicer and Special
Servicer, LaSalle Bank National Association, as Trustee (the "Trustee") and ABN
AMRO Bank N.V., as Fiscal Agent.
H-2-2
This Agreement, when signed by us, will constitute our
agreement with respect to the subject matter contained herein.
Very truly yours,
[NAME OF ENTITY]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Company:
--------------------------------
Phone:
----------------------------------
cc: GMAC Commercial Mortgage Securities, Inc.
Trustee
H-2-3
EXHIBIT I
ADDITIONAL SERVICING FEE SCHEDULE
LOAN CUT-OFF DATE SUB-SERVICING
NUMBER PROPERTY NAME BALANCE FEE
09-0001473 Xxxx Industrial $27,944,480
09-0001523 Xxxxx Creek and Magnolia MHP
Portfolio $9,488,016
09-0001555 Victoria Pointe Apartments $2,469,449
09-0001566 Palm Harbor Commons $3,786,860
09-0001572 Riverview Commons $2,379,569
09-0001584 Highland Terrace Apartments $798,682
09-0001585 Junction Ridge Apartments $5,691,057
09-0001589 River's Edge Apartments $848,673
09-0001590 Sauk Gardens Apartments $6,140,711
09-0001593 Seminole Creek Apartments $2,593,564
I-1
EXHIBIT J
FORM OF NOTICE AND CERTIFICATION REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: GMAC Commercial Mortgage Corporation, in its capacity as Master Servicer
(the "Servicer") under the Pooling and Servicing Agreement dated as of
June 1, 2002 (the "Pooling and Servicing Agreement"), among the
Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer,
LaSalle Bank National Association, as Trustee and ABN AMRO Bank N.V., as
Fiscal Agent
Date: _____________________, 20__.
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates Series 2002-C1
Mortgage Loan (the "Mortgage Loan") identified by loan number ________
on the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties identified
on the Mortgage Loan Schedule by the following names:
-------------------------
-------------------------
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Servicer under the Pooling and Servicing Agreement, we hereby:
(1) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
_____ a full defeasance of the payments scheduled to be
due in respect of the entire principal balance of
the Mortgage Loan; or
_____ a partial defeasance of the payments scheduled to be
due in respect of a portion of the principal balance
of the Mortgage Loan that represents ____% of the
entire principal balance of the Mortgage Loan and,
under the Mortgage, has an allocated loan amount of
$__________ or ____% of the entire principal
balance.
J-1
(2) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Servicer has determined, consistent with the Servicing Standard,
will have no material adverse effect on the Mortgage Loan or the defeasance
transaction:
a. The Mortgage Loan documents permit the defeasance, and
the terms and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
b. The defeasance was consummated on ____________, 20__.
c. The defeasance collateral consists of securities that
(i) constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940, as amended (15 U.S.C. 80a-1), (ii) are listed as
"Qualified Investments for 'AAA' Financings" under Paragraphs 1, 2 or 3 of "Cash
Flow Approach" in Standard & Poor's Public Finance Criteria 2000, as amended to
the date of the defeasance, (iii) are rated "AAA" by Standard & Poor's, (iv) if
they include a principal obligation, the principal due at maturity cannot vary
or change, and (v) are not subject to prepayment, call or early redemption. Such
securities have the characteristics set forth below.
CUSIP RATE MAT PAY DATES ISSUED
----- ---- --- --------- ------
d. The Servicer received an opinion of counsel (from
counsel approved by Servicer in accordance with the Servicing Standard) that the
defeasance will not result in an adverse REMIC Event.
e. The Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") as to which one of the
statements checked below is true:
_____ the related Mortgagor was a Single-Purpose Entity
(as defined in Standard & Poor's Structured Finance
Ratings Real Estate Finance Criteria, as amended to
the date of the defeasance (the "S&P Criteria")) as
of the date of the defeasance, and after the
defeasance owns no assets other than the defeasance
collateral and real property securing Mortgage Loans
included in the pool;
_____ the related Mortgagor designated a Single-Purpose
Entity (as defined in the S&P Criteria) to own the
defeasance collateral; or
_____ the Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the
benefit of the Trust to own the defeasance
collateral.
J-2
f. The Servicer received a broker or similar confirmation
of the credit, or the accountant's letter described below contained statements
that it reviewed a broker or similar confirmation of the credit, of the
defeasance collateral to an Eligible Account (as defined in the S&P Criteria) in
the name of the Defeasance Obligor, which account is maintained as a securities
account by the Trustee acting as a securities intermediary.
g. As securities intermediary, Trustee is obligated to make
the scheduled payments on the Mortgage Loan from the proceeds of the defeasance
collateral directly to the Servicer's collection account in the amounts and on
the dates specified in the Mortgage Loan Documents or, in a partial defeasance,
the portion of such scheduled payments attributed to the allocated loan amount
for the real property defeased, increased by any defeasance premium specified in
the Mortgage Loan Documents (the "Scheduled Payments").
h. The Servicer received from the Mortgagor written
confirmation from a firm of independent certified public accountants, who were
approved by Servicer in accordance with the Servicing Standard, stating that (i)
revenues from principal and interest payments made on the defeasance collateral
(without taking into account any earnings on reinvestment of such revenues) will
be sufficient to timely pay each of the Scheduled Payments after the defeasance
including the payment in full of the Mortgage Loan (or the allocated portion
thereof in connection with a partial defeasance) on its Maturity Date (or, in
the case of an ARD Loan, on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral will be applied to make
Scheduled Payments within four (4) months after the date of receipt, and (iii)
interest income from the defeasance collateral to the Defeasance Obligor in any
calendar or fiscal year will not exceed such Defeasance Obligor's interest
expense for the Mortgage Loan (or the allocated portion thereof in a partial
defeasance) for such year.
i. The Servicer received opinions from counsel, who were
approved by Servicer in accordance with the Servicing Standard, that (i) the
agreements executed by the Mortgagor and/or the Defeasance Obligor in connection
with the defeasance are enforceable against them in accordance with their terms,
and (ii) the Trustee will have a perfected, first priority security interest in
the defeasance collateral described above.
j. The agreements executed in connection with the
defeasance (i) permit reinvestment of proceeds of the defeasance collateral only
in Permitted Investments (as defined in the S&P Criteria), (ii) permit release
of surplus defeasance collateral and earnings on reinvestment to the Defeasance
Obligor or the Mortgagor only after the Mortgage Loan has been paid in full, if
any such release is permitted, (iii) prohibit any subordinate liens against the
defeasance collateral, and (iv) provide for payment from sources other than the
defeasance collateral or other assets of the Defeasance Obligor of all fees and
expenses of the securities intermediary for administering the defeasance and the
securities account and all fees and expenses of maintaining the existence of the
Defeasance Obligor.
k. The entire principal balance of the Mortgage Loan as of
the date of defeasance was $________ [$5,000,000 or less or less than one
percent of pool balance, whichever is less] which is less than 1% of the
aggregate Certificate Principal Balance of the Certificates as of the date of
the most recent Distribution Date Statement received by us (the "Current
Report").
J-3
l. The defeasance described herein, together with all prior
and simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $___________, which is ____% of the
aggregate Certificate Principal Balance of the Certificates as of the date of
the Current Report.
(3) Certify that, in addition to the foregoing, Servicer has imposed
such additional conditions to the defeasance, subject to the limitations imposed
by the Mortgage Loan documents, as are consistent with the Servicing Standard.
(4) Certify that Exhibit B hereto is a list of the material agreements,
instruments, organizational documents for the Defeasance Obligor, and opinions
of counsel and independent accountants executed and delivered in connection with
the defeasance described above and that originals or copies of such agreements,
instruments and opinions have been transmitted to the Trustee for placement in
the related Mortgage File or, to the extent not required to be part of the
related Mortgage File, are in the possession of the Servicer as part of the
Servicer's Mortgage File.
(5) Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing Standard set
forth in, and the other applicable terms and conditions of, the Pooling and
Servicing Agreement.
(6) Certify that the individual under whose hand the Servicer has
caused this Notice and Certification to be executed did constitute a Servicing
Officer as of the date of the defeasance described above.
(7) Agree to provide copies of all items listed in Exhibit B to you
upon request.
J-4
IN WITNESS WHEREOF, the Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:_________________________________
Name:
Title:
J-5
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Schedule I-1
LOAN NUMBER PROPERTY NAME ADDRESS
-----------------------------------------------------------------------------------------------------------------------------------
DBM17167 Harbour Gates Apartments 0000 Xxxxxxx Xxxxx Xxxxx
00000 Xxxxxx Self-Storage Loan
33878-1 Sovran Self-Storage (Austin) 0000 X. Xxxxx Xxxxxxxxx
33878-2 Sovran Self-Storage (Xxxxxxxx) 0000 Xxxxx 00
-----------------------------------------------------------------------------------------------------------------------------------
33878-3 Sovran Self-Storage (Dayton) 0000 Xxxxxxxx Xxxx
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxx Xxxxxxx) 7551 Xxxxxxx Xxxx
00000-0 Xxxxxx Self-Storage (Kalamazoo) 0000 Xxxxx 00xx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx Xxxx) 0000 X. Xxxx Xxxxxx
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx Xxxxx) 000 Xxxxxx Xxxxxxxxx
00000-0 Xxxxxx Self-Storage (Northbridge) 000 Xxxxxx Xxxxxx Extension
33878-9 Sovran Self-Storage (Titusville) 0000 Xxxxxx Xxxxxx
33878-10 Sovran Self-Storage (Wyoming) 4309 Xxxxx X. Xxxxxxx Boulevard
-----------------------------------------------------------------------------------------------------------------------------------
33878-11 Sovran Self-Storage (Springdale) 00000 Xxxxxxxxxxx Xxxx
DBM16985 000 Xxxx Xxxx 000 Xxxx Xxxx Xxxxxx
09-0001473 Xxxx Industrial 000 Xxxxx Xxxx
09-0001557 Xxxxxxxxxxxx Xxxxxxxxxx Xxxx - Xxxxxxxx 00000 Persistance Drive
-----------------------------------------------------------------------------------------------------------------------------------
09-0001558 Xxxxxxxxxxxx Industrial Park - American 00000 Xxxx Xxxxx Xxxxx
09-0001559 Xxxxxxxxxxxx Industrial Park - Capitol 14830 Persistance Drive
09-0001560 Xxxxxxxxxxxx Industrial Park - Foxfire 00000 Xxxx Xxxxx Xxxxx
09-0001561 Xxxxxxxxxxxx Industrial Park - Keystone 00000 Xxxx Xxxxx Xxxxx
09-0001562 Xxxxxxxxxxxx Industrial Park - MESPA 00000 Xxxx Xxxxx Xxxxx
-----------------------------------------------------------------------------------------------------------------------------------
09-0001563 Xxxxxxxxxxxx Industrial Park - Enterprise 00000 Xxxx Xxxxx Xxxxx
09-0001564 Xxxxxxxxxxxx Industrial Park - Colonial 00000 Xxxx Xxxxx Xxxxx
DBM17126 The Westin Portland 000 XX Xxxxx Xxxxxx
DBM16010 Xxxxxxxx Mall 1440 Central Avenue
09-0001541 Xxxxxxxxx Xxxx Xxxxxx 0000 Xxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
30438 Courtyard by Marriott (New Orleans) 000 Xxxxx Xxxxxx
XXX00000 Pierside Pavilion 000 Xxxxxxx Xxxx Xxxxxxx
XXX00000 White Oak Towers Apartments 00000 Xxx Xxxxxxxx Xxxx
00000 Cross Pointe 000-000 X. Xxxx Xxxx Xxxx
DBM16849 Haverhill Apartments 0000 Xxxxxxxxx Xxxxx
-----------------------------------------------------------------------------------------------------------------------------------
DBM17032 Xxxxxx Shopping Center 000 Xxxxxx Xxxx
00000 Xxxxxxx Office Building 0000 Xxxxxxx Xxxx
09-0001518 Summit Palm Lake Apartments 4775 Xxx Xxxx Xxxx
00000 Towne Center 19 Xxxxxx Corner Mall Road
DBM16845 Springfield Hilton Hotel 0000 Xxxxxxxx Xxxx
DBM17161 Xxxxxxxxxx Xxxxxx 0000-0000 Xxxxxxxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
09-0001576 Xxxxxxxx Xxxxx 00000 Xxxxxxxx Xxxxxxxxx
00000 XXX Industrial 14325-14451 Industry Circle
34270 The Homestead 00000 Xxxxx Xxxxxxx 000
09-0001606 The Palms at South Shore Apartments 0000 Xxxxxxxxxx Xxxxxx
00000 Xxxx Xxxx Mall 0000 Xxxx X.X. Xxxxxxx 00, 429 U.S. Highway 90 West
-----------------------------------------------------------------------------------------------------------------------------------
09-0001523 Xxxxx Creek and Magnolia MHP Portfolio
09-0001523-A Xxxxx Creek Mobile Home Park 0000 Xxxxx Xxxxxxx Xxxx
00-0000000-X Xxxxxxxx Xxxxxxx Mobile Home Park 0000 Xxxxxx Xxxx
09-0001571 Xxxx Cottage Office Park 2031 & 0000 Xxxx Xxxxxx
00000 Xxxxx Xxxx Southside 2661-2739 Santa Xxxx Avenue
32376 Holiday Inn (Orangeburg) 000 Xxxxx Xxxxx 000
XXX00000 Xxxxxxxx Xxxxx 4415, 4419 & 0000 Xxxxxxxx Xxxxx Xxxx
-----------------------------------------------------------------------------------------------------------------------------------
DBM16810 Cedar Grove Shopping Center 000 Xxxxx Xxxxx Xxxx
XXX00000 American Heritage Plaza 000-000 X. Xxxxxxx 000
09-0001548 Xxxxxxxx Xxxxxxxx Xxxxxx X 00 Xxxxxx Xxxxxx
09-0001549 Xxxxxxxx Xxxxxxxx Xxxxxx XX 00 Xxxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
09-0001599 Westgate Marketplace 0000 Xxxxxxxxx Xxxxx Xxxxxx
DBM17027 Nob Hill Apartments 000 X. Xxxxxxx Xxxx.
09-0001569 Pheasant Run Plaza 000 Xxxxxxxxxx Xxxxxx Xxxx
DBM16767 00 Xxxxxxxxx Xxxx 00 Xxxxxxxxx Xxxx
-----------------------------------------------------------------------------------------------------------------------------------
DBM16751 Xxxxxxx Towers Apartments 0000 00xx Xxxxxxx
09-0001567 Xxxxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxx
09-0001590 Sauk Gardens Apartments 0000 Xxx Xxxx Xxxx
36069 Jacob's Landing 000 Xxxxxxxxx Xxxxx
00-0000000 Xxxxxxxx Xxxxx Apartments 000 Xxxxxxxx Xxxx
DBM16846 1895 Xxxx Xxxxxxx Road 1895 Xxxx Xxxxxxx Road
DBM16747 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx 0000 Xxxxxxxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
09-0001595 Airpark 99 15515-15679 Xxxxx 00xx Xxx
XXX00000 Xxxxxxxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxx
00-0000000 Xxxx Xxxxx Commons 0000 Xxxxxxxxx Xxxxxxxxx
00000 Xxxxxx at Xxxxxxxxx Shopping Centre 0000-0000 Xxxx Xxxx Xxxx.
-----------------------------------------------------------------------------------------------------------------------------------
34538 Xxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxxx Xxxx.
35281 Village Square Apartments 910 & 000 X. Xxxxxxxxxx Xx.
XXX00000 XxXxxxx Portfolio
DBM17041-A 0000 Xxxxxx Xxxx 4600-4680 Hiatus Road
DBM17041-B 0000 Xxxxx Xxxxxxx 0000-0000 Xxxxx Xxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
35564 Mission Bay Self Storage 00000 Xxxxx Xxxx 7
33110 Adobe Villas Apartments 0000 Xxxx Xxxx Xxxx Xxxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
09-0001550 0000 Xxxxxxxxx Xxx Xxxxxxxx 0000 Xxxxxxxxx Ave
09-0001582 Hickory Ridge Apartments 0000 Xxxxxxx Xxxxxx
00000 Xxxxxx Xxxxxx Apartments 000 Xxxx Xxxxxxxxx Xxxx
09-0001581 Clear Xxxx Xxxxxxx Xxxxxxxxxx 0000 Xxx Xxxx Xxxxxxxxx
00000 Xxxxxxxxx Apartments 0000 X. 000xx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
09-0001578 Kingstree Commons Shopping Center 0000 Xxxxx Xxxxxxxxxx Xxxxxx
00000 Xxxxxx at Xxxxxx Valley Mall 0000 Xxxxxx Xxxxxx
00-0000000 Xxxx Xxxxxx Xxxxxxx 00000 XX. Highway 19 North
09-0001568 General Kearny Apartments 00-000 Xxxxxxxx Xxxxx
09-0001592 00 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
09-0001577 Corporate Tower 0000 X. Xxxxx Xxxxx
09-0001579 Dundee Xxxxx Xxxxx 000 XX Xxxxxxx 00 Xxxxx
00000 Xxxxxx Self Storage 4060 Via Pescador
-----------------------------------------------------------------------------------------------------------------------------------
DBM16950 Park West Apartments 000 Xxxxxxxx Xxxxx
00000 Xxx Xxxxx Portfolio
35756-1 000-000 Xxxxxxx Xxxxxx Apartments 000-000 Xxxxxxx Xxxxxx
35756-2 000-000 Xxxxxx Xxxxxx 000-000 Xxxxxx Xxxxxx
35756-3 000-000 Xxxxxxx Xxxxxx 000-000 Xxxxxxx Xxxxxx
DBM16970 Xxxxxxx Xxxxx 00 Xxxxxxx Xxxx
09-0001570 Xxxxxxx Xxxx XX 00000 Professional Plaza
-----------------------------------------------------------------------------------------------------------------------------------
09-0001565 Cape Xxxxxxx Food Lion 22485 Xxxxxxxx Highway
09-0001537 Englewood Place Apartments 0000 Xxxxx Xxxxxxxx
00000 Xxxxxxxxx Apartments 0000 X. Xxxxxxxx Xxxx
09-0001574 Lakeland Parkway Self Storage 0000 Xxxxxxxx Xxxxx
09-0001594 Camelot Apartments 2204 Xxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
DBM16923 Wyndfall Apartments 0000 Xxxxxxxxx Xxxxx
09-0001593 Seminole Creek Apartments 0000 Xxxxxxxxx Xxxxxxx
00-0000000 Xxxxxxxxx Xxxxx Apartments 00000 Xxxxxx Xxxxxxxxx Xxxx
35673 Xxxxxxxx Xxxxxx 00 Xxxxxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
09-0001555 Victoria Pointe Apartments 239 Depuy
09-0001554 Xxxxxxx Xxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxxxxxx
09-0001572 Riverview Commons 00000 Xxxx Xxxxx
34008 Xxxxxxxx Canyon Industrial Xxxxxxxx 000-000 Xxxxxxxx Xxxxxx Xxxx
34947 Xxxxxxxx Self Storage 0000 Xxxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
36168 Xxxx Xxxxx Xxxxxxxxxx 000 Xxxxx 0xx Xxxxxx
09-0001539 Englewood Townhomes 11855 Dashwood
09-0001605 Xxxxx Xxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxxx Xxxx
34926 Xxxxxxx Xxx Xxxxxxxxxx 000 Xxxxxxx Xxxxxx
00000 Xxxxxxx Self Storage
-----------------------------------------------------------------------------------------------------------------------------------
31138-1 0000 Xxxxx Xxxxx Xx 0000 Xxxxx Xxxxx Xx
00000-0 000 Xxxxxxx Xx 000 Xxxxxxx Xx
00000-0 000 Xxxxxxxx Xxxxx Xx 000 Xxxxxxxx Xxxxx Xx
00000 Xxxxxx Xxxx Xxxxxx 18329-18349 Xxxxxxx Way
30236 Central Self Storage 000 X.X. 00xx Xxxxxx
00000 Xxxxxxxx Self Storage 0000 Xxxxx Xxxxxxxxxx Xxxxxx
09-0001575 Clinton Storage Park 000 Xxxxxxxxxxx Xxxx
00000 Xxxxxx Landing 000 XX Xxxxxxx 000X
-----------------------------------------------------------------------------------------------------------------------------------
36071 Villa Dylano Phase II 000 Xxxxxx Xxxx
00000 Xxxxxxx at Palm Way 1325-1395 Xxxxx Xxxxxxxxx Xxxx
00000 Xxxxxxx Xxxxxxx Apartments 000 Xxxxxxx Xxxxxx
00000 Xxxxxxxx Xxxx Apartments 1971-1985, 0000-0000 Xxxxxxxx Xxxxxx
33614 0000-0000 Xxxxxx Xxxx 0000-0000 Xxxxxx Xxxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
09-0001580 Flagler Crossing 0000 X. Xxxxx Xxxxxxxxx
09-0001589 River's Edge Apartments 000 Xxxxx Xxxxxxxxx Xxxxxx
09-0001584 Highland Terrace Apartments 0000 Xxx Xxxxxxxxx Xxxx
LOAN NUMBER PROPERTY NAME CITY STATE ZIP CODE
-----------------------------------------------------------------------------------------------------------------------------------
DBM17167 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxxxx 00000
33878 Sovran Self-Storage Loan
33878-1 Sovran Self-Storage (Austin) Xxxxxx Xxxxx 00000
33878-2 Sovran Self-Storage (Xxxxxxxx) Xxxxxxxx Xxx Xxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
33878-3 Sovran Self-Storage (Dayton) Xxxxxx Xxxx 00000
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxx Xxxxxxx) East Lansing Michigan 48823
33878-5 Sovran Self-Storage (Kalamazoo) Xxxxxxxxx Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
33878-6 Sovran Self-Storage (League City) Xxxxxx Xxxx Xxxxx 00000
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx Xxxxx) Xxxxxx Xxxxx Xxxxxxx 00000
33878-8 Sovran Self-Storage (Northbridge) Xxxxxxxxxxx Xxxxxxxxxxxxx 00000
33878-9 Sovran Self-Storage (Titusville) Xxxxxxxxxx Xxxxxxx 00000
33878-10 Sovran Self-Storage (Wyoming) Xxxxxxx Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
33878-11 Sovran Self-Storage (Springdale) Xxxxxxxxxx Xxxx 00000
DBM16985 000 Xxxx Xxxx Xxxxxxxxxxxx Xxxxxxx 00000
09-0001473 Xxxx Industrial Xxxxxxxx Xxxxxxxxxxxx 00000
09-0001557 Xxxxxxxxxxxx Industrial Park - Piedmont Xxxxxxxxxx Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001558 Xxxxxxxxxxxx Industrial Park - American Xxxxxxxxxx Xxxxxxxx 00000
09-0001559 Xxxxxxxxxxxx Xxxxxxxxxx Xxxx - Xxxxxxx Xxxxxxxxxx Xxxxxxxx 00000
09-0001560 Xxxxxxxxxxxx Industrial Park - Foxfire Xxxxxxxxxx Xxxxxxxx 00000
09-0001561 Xxxxxxxxxxxx Industrial Park - Keystone Xxxxxxxxxx Xxxxxxxx 00000
09-0001562 Xxxxxxxxxxxx Industrial Park - MESPA Xxxxxxxxxx Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001563 Xxxxxxxxxxxx Industrial Park - Enterprise Xxxxxxxxxx Xxxxxxxx 00000
09-0001564 Xxxxxxxxxxxx Industrial Park - Colonial Xxxxxxxxxx Xxxxxxxx 00000
DBM17126 The Westin Portland Xxxxxxxx Xxxxxx 00000
DBM16010 Xxxxxxxx Xxxx Xxxxxxx Xxx Xxxx 00000
09-0001541 Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxxx Xxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
30438 Courtyard by Marriott (New Orleans) Xxx Xxxxxxx Xxxxxxxxx 00000
DBM16975 Xxxxxxxx Xxxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxxxx 00000
DBM16754 Xxxxx Xxx Xxxxxx Xxxxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx 00000
00000 Xxxxx Xxxxxx Xxxxxx Xxxx 00000
DBM16849 Xxxxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxx Xxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
DBM17032 Xxxxxx Xxxxxxxx Xxxxxx Xxx Xxxx Xxxxxxxxxx 00000
00000 Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx Xxxxx 00000
09-0001518 Summit Xxxx Xxxx Xxxxxxxxxx Xxxx Xxxx Xxxxx Xxxxxxx 00000
00000 Xxxxx Xxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxxxxxx 00000
DBM16845 Springfield Hilton Hotel Xxxxxxxxxxx Xxxxxxxx 00000
DBM17161 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001576 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxx 00000
00000 XXX Xxxxxxxxxx Xx Xxxxxx Xxxxxxxxxx 00000
00000 Xxx Xxxxxxxxx Xxxxxx Xxxxx 00000
09-0001606 The Palms at Xxxxx Xxxxx Xxxxxxxxxx Xxxxxx Xxxx Xxxxx 00000
00000 Xxxx Xxxx Xxxx Xxxx Xxxx Xxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001523 Xxxxx Creek and Magnolia MHP Portfolio
09-0001523-A Xxxxx Xxxxx Xxxxxx Xxxx Xxxx Xxxxxxx Xxxxxxxx 00000
09-0001523-B Xxxxxxxx Xxxxxxx Xxxxxx Xxxx Xxxx Xxxxxxxx Xxxxxxxx 00000
09-0001571 Xxxx Xxxxxxx Xxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxxx 00000
00000 Xxxxx Xxxx Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxxx 00000
32376 Holiday Inn (Orangeburg) Xxxxxxxxxx Xxx Xxxx 00000
DBM16776 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
DBM16810 Xxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx Xxx Xxxxxx 00000
DBM17061 American Xxxxxxxx Xxxxx Xxxxxx Xxx Xxxxxx 00000
09-0001548 Xxxxxxxx Xxxxxxxx Xxxxxx X Xxxxxxxx Xxxxxxxx 00000
09-0001549 Xxxxxxxx Xxxxxxxx Xxxxxx XX Xxxxxxxx Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001599 Xxxxxxxx Xxxxxxxxxxx Xxxxxxxx Xxxx Xxxxxxxx 00000
DBM17027 Xxx Xxxx Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxx 00000
09-0001569 Xxxxxxxx Xxx Xxxxx Xxxxxx Xxx Xxxxxx 00000
DBM16767 00 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
DBM16751 Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxx Xxxxx Xxxxxxxx 00000
09-0001567 Xxxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx 00000
09-0001590 Xxxx Xxxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxx 00000
36069 Jacob's Landing Xxxxxxxxxxx Xxxxxxx 00000
09-0001585 Xxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxx 00000
DBM16846 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxx Xxx Xxxx 00000
DBM16747 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxxxx Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001595 Airpark 99 Xxxxxxxxxx Xxxxxxx 00000
DBM17206 Xxxxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxx 00000
09-0001596 Xxxx Xxxxx Xxxxxxx Xxxxxxxx Xxxxx 00000
34560 Pueblo at Xxxxxxxxx Xxxxxxxx Xxxxxx Xxx Xxxxx Xxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
00000 Xxxxxxx Xxxxx Xxxxxxxxxx Xxx Xxxx Xxxxxxxx 00000
00000 Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxxxxxx 00000
DBM17041 XxXxxxx Portfolio
DBM17041-A 0000 Xxxxxx Xxxx Xxxxxxx Xxxxxxx 00000
DBM17041-B 0000 Xxxxx Xxxxxxx Xxxxxxx Xxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
35564 Mission Bay Self Storage Xxxx Xxxxx Xxxxxxx 00000
33110 Adobe Xxxxxx Xxxxxxxxxx Xxx Xxxxx Xxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001550 0000 Xxxxxxxxx Xxx Xxxxxxxx Xxxxxxxxxx XX District of Columbia 20016
09-0001582 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxx Xxxxx 00000
00000 Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxxx Xxxxxxx 00000
09-0001581 Clear Xxxx Xxxxxxx Xxxxxxxxxx Xxxxxxx Xxxxx 00000
00000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001578 Xxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx 00000
34086 Target at Xxxxxx Xxxxxx Xxxx Xxxxxxxx Xxx Xxxx 00000
09-0001566 Xxxx Xxxxxx Xxxxxxx Xxxx Xxxxxx Xxxxxxx 00000
09-0001568 General Xxxxxx Xxxxxxxxxx Xxxxxx Xxx Xxxxxx 00000
09-0001592 00 Xxxxx Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001577 Corporate Xxxxx Xxxxxxx Xxxx 00000
09-0001579 Dundee Xxxxx Xxxxx Xxxxxx Xxxxxxx 00000
32451 Xxxxxx Self Storage Xxxxxxxxx Xxxxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
DBM16950 Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxxxxx Xxxxx Xxxxxxxx 00000
35756 New Haven Portfolio
35756-1 000-000 Xxxxxxx Xxxxxx Xxxxxxxxxx Xxx Xxxxx Xxxxxxxxxxx 00000
35756-2 000-000 Xxxxxx Xxxxxx Xxx Xxxxx Xxxxxxxxxxx 00000
35756-3 000-000 Xxxxxxx Xxxxxx Xxx Xxxxx Xxxxxxxxxxx 00000
DBM16970 Xxxxxxx Xxxxx Xxxxx Xxxxxxxxx Xxx Xxxxxx 00000
09-0001570 Xxxxxxx Xxxx XX Xxxxxxx Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001565 Cape Xxxxxxx Food Xxxx Xxxx Xxxxxxx Xxxxxxxx 00000
09-0001537 Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxx Xxxxx 00000
00000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxxx 00000
09-0001574 Xxxxxxxx Xxxxxxx Xxxx Xxxxxxx Xxxxxxx Xxxxxxxxxxx 00000
09-0001594 Camelot Apartments Xxxxxxx Xxxxx Xxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
DBM16923 Xxxxxxxx Xxxxxxxxxx Xxxx Xxxxx Xxxxx Xxxxxxxx 00000
09-0001593 Xxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxx 00000
09-0001556 Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxx Xxxxx 00000
00000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxx Xxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001555 Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx 00000
09-0001554 Parkway Centre Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxx 00000
09-0001572 Xxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxx 00000
00000 Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx Xxxx of Industry California 91745
00000 Xxxxxxxx Xxxx Xxxxxxx Xxxxx Xxxxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
00000 Xxxx Xxxxx Xxxxxxxxxx Xxxxxx Xxxxx Xxxxxxx 00000
09-0001539 Englewood Townhomes Xxxxxxx Xxxxx 00000
09-0001605 Xxxxx Xxxx Xxxxxxxxxx Xxxxxxxx Xxxxx 00000
00000 Xxxxxxx Xxx Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxx 00000
31138 Gateway Self Storage
-----------------------------------------------------------------------------------------------------------------------------------
31138-1 0000 Xxxxx Xxxxx Xx Xxxxxxx Xxxxxxxx 00000
31138-2 000 Xxxxxxx Xx Xxxxxxx Xxxxxxxx 00000
31138-3 000 Xxxxxxxx Xxxxx Xx Xxxxxxxxxxxx Xxxxxxxx 00000
00000 Xxxxxx Xxxx Xxxxxx Xxxxxx Xxxxxxxxxx 00000
30236 Central Self Storage Xxxxxxx Xxxxx Xxxxxxx 00000
33494 Shurgard Self Storage Xxxxxxxxx Xxxxxxxx 00000
09-0001575 Xxxxxxx Xxxxxxx Xxxx Xxxxxxx Xxxxxxxxxxx 00000
00000 Xxxxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
00000 Xxxxx Xxxxxx Xxxxx XX Xxxxxxxxxxx Xxxxxxx 00000
35538 Shoppes at Xxxx Xxx Xxxxxxx Xxxxx Xxxxxxx 00000
00000 Xxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxxx Xxxxxxxxxxx 00000
00000 Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxxxx Xxxxxxxx 00000
33614 0000-0000 Xxxxxx Xxxx Xxxxxxxxx Xxx Xxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
09-0001580 Flagler Crossing Flagler Xxxxx Xxxxxxx 00000
09-0001589 River's Xxxx Xxxxxxxxxx XxXxxxxx Xxxxxxxxx 00000
09-0001584 Xxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxx 00000
MORTGAGE
RATE RATE ORIGINAL
LOAN NUMBER PROPERTY NAME (%) TYPE BALANCE ($)
----------------------------------------------------------------------------------------------------------------------------------
DBM17167 Harbour Gates Apartments 6.44000 Fixed 36,000,000
33878 Sovran Self-Storage Loan 7.80000 Fixed 30,500,000
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx) - -
00000-0 Sovran Self-Storage (Brewster) - -
----------------------------------------------------------------------------------------------------------------------------------
33878-3 Sovran Self-Storage (Dayton) - -
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxx Xxxxxxx) - -
00000-0 Sovran Self-Storage (Kalamazoo) - -
----------------------------------------------------------------------------------------------------------------------------------
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx Xxxx) - -
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx Xxxxx) - -
00000-0 Xxxxxx Self-Storage (Northbridge) - -
33878-9 Sovran Self-Storage (Titusville) - -
33878-10 Sovran Self-Storage (Wyoming) - -
----------------------------------------------------------------------------------------------------------------------------------
33878-11 Sovran Self-Storage (Springdale) - -
DBM16985 101 West Ohio 7.32000 Fixed 29,500,000
09-0001473 Xxxx Industrial 7.34000 Fixed 28,200,000
09-0001557 Xxxxxxxxxxxx Industrial Park - Piedmont 7.39000 Fixed 1,000,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001558 Xxxxxxxxxxxx Xxxxxxxxxx Xxxx - Xxxxxxxx 0.00000 Fixed 5,200,000
09-0001559 Xxxxxxxxxxxx Xxxxxxxxxx Xxxx - Xxxxxxx 0.00000 Fixed 1,350,000
09-0001560 Xxxxxxxxxxxx Xxxxxxxxxx Xxxx - Xxxxxxx 0.00000 Fixed 4,275,000
09-0001561 Xxxxxxxxxxxx Industrial Park - Keystone 7.39000 Fixed 5,300,000
09-0001562 Xxxxxxxxxxxx Xxxxxxxxxx Xxxx - XXXXX 0.00000 Fixed 4,425,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001563 Xxxxxxxxxxxx Industrial Park - Enterprise 7.39000 Fixed 1,650,000
09-0001564 Xxxxxxxxxxxx Industrial Park - Colonial 7.39000 Fixed 4,800,000
DBM17126 The Westin Portland 7.61000 Fixed 23,300,000
DBM16010 Xxxxxxxx Mall 7.20000 Fixed 20,500,000
09-0001541 Xxxxxxxxx Xxxx Xxxxxx 0.00000 Fixed 17,990,000
----------------------------------------------------------------------------------------------------------------------------------
30438 Courtyard by Marriott (New Orleans) 7.90000 Fixed 18,000,000
DBM16975 Pierside Pavilion 7.52000 Fixed 16,000,000
DBM16754 White Oak Towers Apartments 6.16000 Fixed 16,000,000
00000 Xxxxx Xxxxxx 7.40000 Fixed 15,600,000
DBM16849 Haverhill Apartments 7.14000 Fixed 15,500,000
----------------------------------------------------------------------------------------------------------------------------------
DBM17032 Xxxxxx Shopping Center 7.68000 Fixed 15,000,000
00000 Xxxxxxx Xxxxxx Xxxxxxxx 7.27000 Fixed 14,940,000
09-0001518 Summit Palm Lake Apartments 7.48000 Fixed 14,900,000
33484 Towne Center 7.18000 Fixed 14,640,000
DBM16845 Springfield Hilton Hotel 7.93000 Fixed 12,500,000
DBM17161 Landsdowne Centre 7.50000 Fixed 11,250,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001576 Heritage Plaza 7.10000 Fixed 11,250,000
33847 VIC Industrial 7.39000 Fixed 11,000,000
34270 The Homestead 7.45000 Fixed 11,000,000
09-0001606 Xxx Xxxxx xx Xxxxx Xxxxx Xxxxxxxxxx 0.00000 Fixed 10,600,000
00000 Xxxx Xxxx Xxxx 7.48000 Fixed 10,300,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001523 Xxxxx Creek and Magnolia MHP Portfolio 7.62000 Fixed 9,590,000
09-0001523-A Xxxxx Creek Xxxxxx Xxxx Xxxx - -
00-0000000-X Xxxxxxxx Xxxxxxx Mobile Home Park - -
09-0001571 Xxxx Cottage Office Park 7.45000 Fixed 9,350,000
36206 Santa Xxxx Southside 7.63000 Fixed 8,750,000
32376 Holiday Inn (Orangeburg) 7.39000 Fixed 8,800,000
DBM16776 Pheasant Ridge 7.52000 Fixed 8,631,000
----------------------------------------------------------------------------------------------------------------------------------
DBM16810 Cedar Grove Shopping Center 7.63000 Fixed 8,500,000
DBM17061 American Heritage Plaza 7.41000 Fixed 8,250,000
09-0001548 Xxxxxxxx Commerce Center I 7.31000 Fixed 3,517,000
09-0001549 Xxxxxxxx Commerce Center II 7.31000 Fixed 3,983,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001599 Westgate Marketplace 7.81000 Fixed 7,400,000
DBM17027 Nob Hill Apartments 7.22000 Fixed 7,250,000
09-0001569 Xxxxxxxx Xxx Xxxxx 0.00000 Fixed 7,200,000
DBM16767 00 Xxxxxxxxx Xxxx 7.14000 Fixed 7,000,000
----------------------------------------------------------------------------------------------------------------------------------
DBM16751 Xxxxxxx Towers Apartments 6.16000 Fixed 6,650,000
09-0001567 Lottsford Business Center 7.40000 Fixed 6,400,000
09-0001590 Sauk Gardens Apartments 6.83000 Fixed 6,150,000
36069 Jacob's Landing 7.26000 Fixed 5,900,000
09-0001585 Xxxxxxxx Xxxxx Xxxxxxxxxx 0.00000 Fixed 5,700,000
DBM16846 0000 Xxxx Xxxxxxx Xxxx 7.55000 Fixed 5,200,000
DBM16747 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx 0.00000 Fixed 5,200,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001595 Airpark 99 7.22000 Fixed 5,100,000
DBM17206 Charlestown North 6.74000 Fixed 5,000,000
09-0001596 Mira Vista Commons 7.22000 Fixed 4,880,000
34560 Pueblo at Xxxxxxxxx Shopping Centre 7.73000 Fixed 4,730,000
----------------------------------------------------------------------------------------------------------------------------------
34538 Orchard Manor Apartments 7.29000 Fixed 2,030,000
00000 Xxxxxxx Xxxxxx Xxxxxxxxxx 0.00000 Fixed 2,670,000
DBM17041 XxXxxxx Portfolio 6.92000 Fixed 4,450,000
DBM17041-A 0000 Xxxxxx Xxxx - -
XXX00000-X 0000 Xxxxx Xxxxxxx - -
----------------------------------------------------------------------------------------------------------------------------------
35564 Mission Bay Self Storage 7.37000 Fixed 4,400,000
33110 Adobe Villas Apartments 7.30000 Fixed 4,320,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001550 0000 Xxxxxxxxx Xxx Xxxxxxxx 6.99000 Fixed 4,200,000
09-0001582 Xxxxxxx Xxxxx Xxxxxxxxxx 0.00000 Fixed 4,125,000
36169 Rancho Mirage Apartments 7.00000 Fixed 4,100,000
09-0001581 Clear Lake Village Apartments 7.02000 Fixed 4,100,000
00000 Xxxxxxxxx Xxxxxxxxxx 0.00000 Fixed 4,115,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001578 Kingstree Commons Shopping Center 7.69000 Fixed 4,020,000
34086 Target at Xxxxxx Valley Mall 7.26000 Fixed 4,000,000
09-0001566 Palm Harbor Commons 7.62000 Fixed 3,800,000
09-0001568 General Kearny Apartments 6.25000 Fixed 3,800,000
09-0001592 00 Xxxxx Xxxxxx 7.09000 Fixed 3,650,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001577 Corporate Tower 7.18000 Fixed 3,600,000
09-0001579 Dundee Ridge Plaza 7.36000 Fixed 3,500,000
32451 Xxxxxx Self Storage 7.73000 Fixed 3,400,000
----------------------------------------------------------------------------------------------------------------------------------
DBM16950 Park West Apartments 7.45000 Fixed 3,325,000
35756 New Haven Portfolio 7.21000 Fixed 3,300,000
35756-1 000-000 Xxxxxxx Xxxxxx Xxxxxxxxxx - -
00000-0 000-000 Xxxxxx Xxxxxx - -
00000-0 000-000 Xxxxxxx Xxxxxx - -
XXX00000 Xxxxxxx Court 7.25000 Fixed 3,200,000
09-0001570 Ashburn Farm II 7.45000 Fixed 3,200,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001565 Cape Xxxxxxx Food Lion 7.36000 Fixed 3,200,000
09-0001537 Englewood Place Apartments 6.75000 Fixed 3,120,000
00000 Xxxxxxxxx Xxxxxxxxxx 7.00000 Fixed 3,000,000
09-0001574 Lakeland Parkway Self Storage 7.79000 Fixed 2,935,000
09-0001594 Camelot Apartments 7.18000 Fixed 2,730,000
----------------------------------------------------------------------------------------------------------------------------------
DBM16923 Wyndfall Apartments 7.49000 Fixed 2,625,000
09-0001593 Xxxxxxxx Xxxxx Xxxxxxxxxx 0.00000 Fixed 2,600,000
09-0001556 Xxxxxxxxx Xxxxx Xxxxxxxxxx 0.00000 Fixed 2,600,000
35673 Millburn Office 7.22000 Fixed 2,525,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001555 Victoria Pointe Apartments 6.38000 Fixed 2,500,000
09-0001554 Parkway Centre North 7.12000 Fixed 2,450,000
09-0001572 Riverview Commons 7.88000 Fixed 2,400,000
00000 Xxxxxxxx Xxxxxx Industrial Building 7.93000 Fixed 2,325,000
34947 Xxxxxxxx Self Storage 7.70000 Fixed 2,325,000
----------------------------------------------------------------------------------------------------------------------------------
36168 Loma Verde Apartments 7.00000 Fixed 2,300,000
09-0001539 Englewood Townhomes 6.75000 Fixed 2,200,000
09-0001605 Xxxxx Xxxx Xxxxxxxxxx 0.00000 Fixed 2,125,000
34926 Pelican Bay Apartments 7.07000 Fixed 2,000,000
31138 Gateway Self Storage 7.82000 Fixed 1,890,000
----------------------------------------------------------------------------------------------------------------------------------
31138-1 0000 Xxxxx Xxxxx Xx - -
00000-0 000 Xxxxxxx Xx - -
00000-0 000 Xxxxxxxx Xxxxx Xx - -
33459 Valley West Center 7.75000 Fixed 1,850,000
30236 Central Self Storage 7.72000 Fixed 1,835,000
33494 Shurgard Self Storage 7.69000 Fixed 1,700,000
09-0001575 Clinton Storage Park 7.79000 Fixed 1,700,000
00000 Xxxxxx Xxxxxxx 7.45000 Fixed 1,650,000
----------------------------------------------------------------------------------------------------------------------------------
36071 Villa Dylano Phase II 7.43000 Fixed 1,640,000
35538 Shoppes at Palm Way 7.66000 Fixed 1,600,000
00000 Xxxxxxx Xxxxxxx Xxxxxxxxxx 0.00000 Fixed 1,600,000
00000 Xxxxxxxx Xxxx Xxxxxxxxxx 0.00000 Fixed 1,400,000
33614 0000-0000 Xxxxxx Xxxx 8.01000 Fixed 1,234,000
----------------------------------------------------------------------------------------------------------------------------------
09-0001580 Flagler Crossing 7.16000 Fixed 1,200,000
09-0001589 River's Edge Apartments 6.69000 Fixed 850,000
09-0001584 Xxxxxxxx Xxxxxxx Xxxxxxxxxx 0.00000 Fixed 800,000
REMAINING ANTICIPATED
CUT-OFF DATE TERM TO REPAYMENT
LOAN NUMBER PROPERTY NAME BALANCE ($) MATURITY (MOS.) MATURITY DATE DATE
----------------------------------------------------------------------------------------------------------------------------------
DBM17167 Harbour Gates Apartments 36,000,000 120 6/1/12
33878 Sovran Self-Storage Loan 30,383,449 114 12/5/11
00000-0 Xxxxxx Self-Storage (Austin) -
33878-2 Sovran Self-Storage (Xxxxxxxx) -
----------------------------------------------------------------------------------------------------------------------------------
00000-0 Xxxxxx Self-Storage (Dayton) -
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxx Xxxxxxx) -
00000-0 Sovran Self-Storage (Kalamazoo) -
----------------------------------------------------------------------------------------------------------------------------------
33878-6 Sovran Self-Storage (League City) -
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx Xxxxx) -
00000-0 Sovran Self-Storage (Northbridge) -
33878-9 Sovran Self-Storage (Titusville) -
33878-10 Sovran Self-Storage (Wyoming) -
----------------------------------------------------------------------------------------------------------------------------------
33878-11 Sovran Self-Storage (Springdale) -
DBM16985 101 West Ohio 29,483,304 119 5/1/12
09-0001473 Xxxx Industrial 27,944,480 107 5/1/11
09-0001557 Xxxxxxxxxxxx Industrial Park - Piedmont 996,931 116 2/1/12
----------------------------------------------------------------------------------------------------------------------------------
09-0001558 Xxxxxxxxxxxx Industrial Park - American 5,184,043 116 2/1/12
09-0001559 Xxxxxxxxxxxx Industrial Park - Capitol 1,345,857 116 2/1/12
09-0001560 Xxxxxxxxxxxx Industrial Park - Foxfire 4,261,882 116 2/1/12
09-0001561 Xxxxxxxxxxxx Industrial Park - Keystone 5,283,737 116 2/1/12
09-0001562 Xxxxxxxxxxxx Industrial Park - MESPA 4,411,422 116 2/1/12
----------------------------------------------------------------------------------------------------------------------------------
09-0001563 Xxxxxxxxxxxx Industrial Park - Enterprise 1,644,937 116 2/1/12
09-0001564 Xxxxxxxxxxxx Industrial Park - Colonial 4,785,271 116 2/1/12
DBM17126 The Westin Portland 23,300,000 120 6/1/12
DBM16010 Xxxxxxxx Mall 20,500,000 120 6/1/12
09-0001541 Southlake Town Square 17,874,894 111 9/1/11
----------------------------------------------------------------------------------------------------------------------------------
30438 Courtyard by Marriott (New Orleans) 17,726,779 105 3/1/11
DBM16975 Pierside Pavilion 15,985,162 119 5/1/12
DBM16754 White Oak Towers Apartments 15,971,762 118 4/1/12
34417 Cross Pointe 15,570,796 57 3/5/07
DBM16849 Haverhill Apartments 15,478,281 58 4/1/07
----------------------------------------------------------------------------------------------------------------------------------
DBM17032 Xxxxxx Shopping Center 15,000,000 120 6/1/12
34665 Xxxxxxx Office Building 14,893,058 116 2/5/12
09-0001518 Summit Palm Lake Apartments 14,790,047 49 7/1/06
33484 Towne Center 14,575,385 114 12/5/11
DBM16845 Springfield Hilton Hotel 12,500,000 120 6/1/12
DBM17161 Landsdowne Centre 11,250,000 240 6/1/22
----------------------------------------------------------------------------------------------------------------------------------
09-0001576 Heritage Plaza 11,227,177 117 3/1/12
33847 VIC Industrial 10,979,351 117 3/5/12
34270 The Homestead 10,960,525 115 1/5/12
09-0001606 The Palms at South Shore Apartments 10,600,000 120 6/1/12
33100 Lake City Mall 10,263,277 115 1/5/12
----------------------------------------------------------------------------------------------------------------------------------
09-0001523 Xxxxx Creek and Magnolia MHP Portfolio 9,488,016 110 8/1/11
09-0001523-A Xxxxx Creek Xxxxxx Xxxx Xxxx -
00-0000000-X Xxxxxxxx Xxxxxxx Mobile Home Park -
09-0001571 Xxxx Cottage Office Park 9,321,647 116 2/1/12
36206 Santa Xxxx Southside 8,750,000 120 6/5/12
32376 Holiday Inn (Orangeburg) 8,730,853 113 11/1/11
DBM16776 Pheasant Ridge 8,620,002 118 4/1/12
----------------------------------------------------------------------------------------------------------------------------------
DBM16810 Cedar Grove Shopping Center 8,495,656 119 5/1/12
DBM17061 American Heritage Plaza 8,250,000 120 6/1/12
09-0001548 Xxxxxxxx Commerce Center I 3,493,088 116 2/1/12
09-0001549 Xxxxxxxx Commerce Center II 3,955,920 116 2/1/12
----------------------------------------------------------------------------------------------------------------------------------
09-0001599 Westgate Marketplace 7,391,251 118 4/1/12
DBM17027 Nob Hill Apartments 7,245,765 59 5/1/07
09-0001569 Pheasant Run Plaza 7,176,101 116 2/1/12
DBM16767 00 Xxxxxxxxx Xxxx 6,994,251 149 11/1/14
----------------------------------------------------------------------------------------------------------------------------------
DBM16751 Xxxxxxx Towers Apartments 6,638,264 118 4/1/12
09-0001567 Lottsford Business Center 6,376,782 115 1/1/12
09-0001590 Sauk Gardens Apartments 6,140,711 118 4/1/12
36069 Jacob's Landing 5,900,000 120 6/5/12
09-0001585 Junction Ridge Apartments 5,691,057 118 4/1/12
DBM16846 0000 Xxxx Xxxxxxx Xxxx 5,200,000 120 6/1/12
DBM16747 Kenilworth Towers Apartments 5,195,870 119 5/1/12
----------------------------------------------------------------------------------------------------------------------------------
09-0001595 Airpark 99 5,092,993 118 4/1/12
DBM17206 Charlestown North 5,000,000 120 6/1/12
09-0001596 Mira Vista Commons 4,870,410 117 3/1/12
34560 Pueblo at Xxxxxxxxx Shopping Centre 4,727,664 119 5/5/12
----------------------------------------------------------------------------------------------------------------------------------
34538 Orchard Manor Apartments 2,020,204 115 1/5/12
00000 Xxxxxxx Xxxxxx Apartments 2,657,116 115 1/5/12
DBM17041 XxXxxxx Portfolio 4,447,150 119 5/1/12
DBM17041-A 0000 Xxxxxx Xxxx -
XXX00000-X 0000 Xxxxx Xxxxxxx -
----------------------------------------------------------------------------------------------------------------------------------
35564 Mission Bay Self Storage 4,400,000 120 6/5/12
33110 Adobe Villas Apartments 4,289,313 110 8/5/11
----------------------------------------------------------------------------------------------------------------------------------
09-0001550 0000 Xxxxxxxxx Xxx Building 4,183,363 115 1/1/12
09-0001582 Hickory Ridge Apartments 4,122,436 119 5/1/12
36169 Rancho Mirage Apartments 4,100,000 120 6/5/12
09-0001581 Clear Lake Village Apartments 4,097,452 119 5/1/12
34347 Courtyard Apartments 4,095,657 114 12/5/11
----------------------------------------------------------------------------------------------------------------------------------
09-0001578 Kingstree Commons Shopping Center 4,015,096 118 4/1/12
34086 Target at Xxxxxx Valley Mall 3,985,043 115 1/5/12
09-0001566 Palm Harbor Commons 3,786,860 115 1/1/12
09-0001568 General Kearny Apartments 3,782,440 115 1/1/12
09-0001592 00 Xxxxx Xxxxxx 3,642,576 117 3/1/12
----------------------------------------------------------------------------------------------------------------------------------
09-0001577 Corporate Tower 3,582,547 116 2/1/12
09-0001579 Dundee Ridge Plaza 3,496,635 119 5/1/12
32451 Xxxxxx Self Storage 3,364,559 110 8/5/11
----------------------------------------------------------------------------------------------------------------------------------
DBM16950 Park West Apartments 3,323,196 119 5/1/12
35756 New Haven Portfolio 3,300,000 120 6/5/12
35756-1 000-000 Xxxxxxx Xxxxxx Xxxxxxxxxx -
00000-0 000-000 Xxxxxx Xxxxxx -
00000-0 000-000 Xxxxxxx Xxxxxx -
XXX00000 Xxxxxxx Court 3,200,000 120 6/1/12
09-0001570 Ashburn Farm II 3,190,296 116 2/1/12
----------------------------------------------------------------------------------------------------------------------------------
09-0001565 Cape Xxxxxxx Food Lion 3,188,290 115 1/1/12
09-0001537 Englewood Place Apartments 3,120,000 112 10/1/11
00000 Xxxxxxxxx Xxxxxxxxxx 3,000,000 120 6/5/12
09-0001574 Lakeland Parkway Self Storage 2,922,083 116 2/1/12
09-0001594 Camelot Apartments 2,723,974 118 4/1/12
----------------------------------------------------------------------------------------------------------------------------------
DBM16923 Wyndfall Apartments 2,623,594 119 5/1/12
09-0001593 Seminole Creek Apartments 2,593,564 118 4/1/12
09-0001556 Westfield Ridge Apartments 2,586,942 114 12/1/11
35673 Millburn Office 2,525,000 120 7/1/12
----------------------------------------------------------------------------------------------------------------------------------
09-0001555 Victoria Pointe Apartments 2,469,449 114 12/1/11
09-0001554 Parkway Centre North 2,439,039 114 12/1/11
09-0001572 Riverview Commons 2,379,569 115 1/1/12
00000 Xxxxxxxx Xxxxxx Industrial Building 2,322,337 118 4/5/12
34947 Xxxxxxxx Self Storage 2,318,251 117 3/5/12
----------------------------------------------------------------------------------------------------------------------------------
36168 Loma Verde Apartments 2,300,000 120 6/5/12
09-0001539 Englewood Townhomes 2,200,000 111 9/1/11
09-0001605 Towne Oaks Apartments 2,123,816 119 5/1/12
34926 Pelican Bay Apartments 1,985,927 114 12/5/11
31138 Gateway Self Storage 1,877,184 109 7/5/11
----------------------------------------------------------------------------------------------------------------------------------
31138-1 0000 Xxxxx Xxxxx Xx -
00000-0 000 Xxxxxxx Xx -
00000-0 000 Xxxxxxxx Xxxxx Xx -
00000 Xxxxxx Xxxx Center 1,841,806 116 2/5/12
30236 Central Self Storage 1,822,240 109 7/5/11
33494 Shurgard Self Storage 1,700,000 120 6/5/12
09-0001575 Clinton Storage Park 1,692,518 116 2/1/12
34105 Xxxxxx Landing 1,644,963 117 3/5/12
----------------------------------------------------------------------------------------------------------------------------------
36071 Villa Dylano Phase II 1,640,000 120 6/5/12
35538 Shoppes at Palm Way 1,600,000 120 6/5/12
28310 Xxxxxxx Gardens Apartments 1,575,304 106 4/5/11
32019 Xxxxxxxx Xxxx Apartments 1,390,115 114 12/5/11
33614 0000-0000 Xxxxxx Xxxx 1,231,675 118 4/5/12
----------------------------------------------------------------------------------------------------------------------------------
09-0001580 Flagler Crossing 1,189,211 177 3/1/17
09-0001589 River's Edge Apartments 848,673 118 4/1/12
09-0001584 Highland Terrace Apartments 798,682 118 4/1/12
DATE PAYMENT MONTHLY CREDIT LEASE
LOAN NUMBER PROPERTY NAME DUE PAYMENT ARD LOAN LOAN
-----------------------------------------------------------------------------------------------------------------------------------
DBM17167 Harbour Gates Apartments 1 226,125.83
33878 Sovran Self-Storage Loan 5 219,560.50
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx) -
00000-0 Sovran Self-Storage (Xxxxxxxx) -
-----------------------------------------------------------------------------------------------------------------------------------
00000-0 Xxxxxx Self-Storage (Dayton) -
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxx Xxxxxxx) -
00000-0 Sovran Self-Storage (Kalamazoo) -
-----------------------------------------------------------------------------------------------------------------------------------
33878-6 Sovran Self-Storage (League City) -
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx Xxxxx) -
00000-0 Sovran Self-Storage (Northbridge) -
33878-9 Sovran Self-Storage (Titusville) -
33878-10 Sovran Self-Storage (Wyoming) -
-----------------------------------------------------------------------------------------------------------------------------------
33878-11 Sovran Self-Storage (Springdale) -
DBM16985 101 West Ohio 1 202,644.53
09-0001473 Xxxx Industrial 1 194,098.17
09-0001557 Xxxxxxxxxxxx Industrial Park - Piedmont 1 6,916.98
-----------------------------------------------------------------------------------------------------------------------------------
09-0001558 Xxxxxxxxxxxx Industrial Park - American 1 35,968.28
09-0001559 Xxxxxxxxxxxx Industrial Park - Capitol 1 9,337.92
09-0001560 Xxxxxxxxxxxx Industrial Park - Foxfire 1 29,570.08
09-0001561 Xxxxxxxxxxxx Industrial Park - Keystone 1 36,659.98
09-0001562 Xxxxxxxxxxxx Industrial Park - MESPA 1 30,607.62
-----------------------------------------------------------------------------------------------------------------------------------
09-0001563 Xxxxxxxxxxxx Industrial Park - Enterprise 1 11,413.01
09-0001564 Xxxxxxxxxxxx Industrial Park - Colonial 1 33,201.49
DBM17126 The Westin Portland 1 173,855.52
DBM16010 Xxxxxxxx Xxxx 0 000,000.00
00-0000000 Xxxxxxxxx Xxxx Square 1 124,191.16
-----------------------------------------------------------------------------------------------------------------------------------
30438 Courtyard by Marriott (New Orleans) 1 137,736.63
DBM16975 Xxxxxxxx Xxxxxxxx 0 118,446.81
DBM16754 White Oak Towers Apartments 1 97,580.12
34417 Cross Pointe 5 108,011.25
DBM16849 Haverhill Apartments 1 104,583.35
-----------------------------------------------------------------------------------------------------------------------------------
DBM17032 Xxxxxx Shopping Center 1 106,737.16
34665 Xxxxxxx Office Building 5 102,119.88
09-0001518 Summit Palm Lake Apartments 1 103,978.98
33484 Towne Center 5 99,176.46
DBM16845 Springfield Hilton Hotel 1 91,111.33
DBM17161 Landsdowne Centre 1 91,389.72
-----------------------------------------------------------------------------------------------------------------------------------
09-0001576 Heritage Plaza 1 75,603.60
33847 VIC Industrial 5 76,086.75
34270 The Homestead 5 76,537.33
09-0001606 The Palms at South Shore Apartments 1 70,664.50
33100 Lake City Mall 5 71,878.09
-----------------------------------------------------------------------------------------------------------------------------------
09-0001523 Xxxxx Creek and Magnolia MHP Portfolio 1 71,619.49
09-0001523-A Xxxxx Creek Xxxxxx Xxxx Xxxx -
00-0000000-X Xxxxxxxx Xxxxxxx Mobile Home Park -
09-0001571 Xxxx Cottage Office Park 1 65,056.73
36206 Santa Xxxx Southside 5 61,962.05
32376 Holiday Inn (Orangeburg) 1 64,402.89
DBM16776 Pheasant Ridge 1 60,467.45
-----------------------------------------------------------------------------------------------------------------------------------
DBM16810 Cedar Grove Shopping Center 1 60,191.71
DBM17061 American Heritage Plaza 1 57,177.62
09-0001548 Xxxxxxxx Commerce Center I 1 27,342.37
09-0001549 Xxxxxxxx Commerce Center II 1 30,965.21
-----------------------------------------------------------------------------------------------------------------------------------
09-0001599 Westgate Marketplace 1 53,321.65
DBM17027 Nob Hill Apartments 1 49,310.34
09-0001569 Pheasant Run Plaza 1 47,853.43
DBM16767 00 Xxxxxxxxx Xxxx 1 48,787.70
-----------------------------------------------------------------------------------------------------------------------------------
DBM16751 Xxxxxxx Towers Apartments 1 40,556.74
09-0001567 Lottsford Business Center 1 44,312.31
09-0001590 Sauk Gardens Apartments 1 40,216.38
36069 Jacob's Landing 5 40,288.43
09-0001585 Junction Ridge Apartments 1 36,667.48
DBM16846 1895 Xxxx Xxxxxxx Road 1 36,537.36
DBM16747 Kenilworth Towers Apartments 1 31,713.54
-----------------------------------------------------------------------------------------------------------------------------------
09-0001595 Airpark 99 1 34,687.28
DBM17206 Charlestown North 1 32,396.68
09-0001596 Mira Vista Commons 1 33,190.96
34560 Pueblo at Xxxxxxxxx Shopping Centre 5 33,820.95
-----------------------------------------------------------------------------------------------------------------------------------
34538 Orchard Manor Apartments 5 14,348.64
00000 Xxxxxxx Xxxxxx Apartments 5 18,872.35
DBM17041 XxXxxxx Portfolio 1 29,367.26
DBM17041-A 0000 Xxxxxx Xxxx -
XXX00000-X 0000 Xxxxx Xxxxxxx -
-----------------------------------------------------------------------------------------------------------------------------------
35564 Mission Bay Self Storage 5 30,664.66
33110 Adobe Villas Apartments 5 29,616.66
-----------------------------------------------------------------------------------------------------------------------------------
09-0001550 0000 Xxxxxxxxx Xxx Building 1 27,914.50
09-0001582 Hickory Ridge Apartments 1 27,499.16
36169 Rancho Mirage Apartments 5 27,277.40
09-0001581 Clear Lake Village Apartments 1 27,332.49
34347 Courtyard Apartments 5 27,101.40
-----------------------------------------------------------------------------------------------------------------------------------
09-0001578 Kingstree Commons Shopping Center 1 28,633.27
34086 Target at Xxxxxx Valley Mall 5 27,314.19
09-0001566 Palm Harbor Commons 1 26,883.09
09-0001568 General Kearny Apartments 1 23,397.25
09-0001592 00 Xxxxx Xxxxxx 1 24,504.56
-----------------------------------------------------------------------------------------------------------------------------------
09-0001577 Corporate Tower 1 25,858.92
09-0001579 Dundee Ridge Plaza 1 25,546.81
32451 Xxxxxx Self Storage 5 25,636.55
-----------------------------------------------------------------------------------------------------------------------------------
DBM16950 Park West Apartments 1 23,135.15
35756 New Haven Portfolio 5 23,767.65
35756-1 000-000 Xxxxxxx Xxxxxx Xxxxxxxxxx -
00000-0 000-000 Xxxxxx Xxxxxx -
00000-0 000-000 Xxxxxxx Xxxxxx -
XXX00000 Xxxxxxx Court 1 21,829.64
09-0001570 Ashburn Farm II 1 22,265.40
-----------------------------------------------------------------------------------------------------------------------------------
09-0001565 Cape Xxxxxxx Food Lion 1 22,068.90
09-0001537 Englewood Place Apartments 1 20,236.26
36167 Southwind Apartments 5 19,959.07
09-0001574 Lakeland Parkway Self Storage 1 22,246.03
09-0001594 Camelot Apartments 1 19,609.68
-----------------------------------------------------------------------------------------------------------------------------------
DBM16923 Wyndfall Apartments 1 18,336.41
09-0001593 Seminole Creek Apartments 1 17,636.70
09-0001556 Westfield Ridge Apartments 1 16,605.13
35673 Millburn Office 1 17,173.60
-----------------------------------------------------------------------------------------------------------------------------------
09-0001555 Victoria Pointe Apartments 1 18,463.13
09-0001554 Parkway Centre North 1 16,497.84
09-0001572 Riverview Commons 1 19,895.70
34008 Xxxxxxxx Canyon Industrial Building 5 16,946.71
34947 Xxxxxxxx Self Storage 5 17,485.14
-----------------------------------------------------------------------------------------------------------------------------------
36168 Loma Verde Apartments 5 15,301.96
09-0001539 Englewood Townhomes 1 14,269.16
09-0001605 Towne Oaks Apartments 1 14,669.61
34926 Pelican Bay Apartments 5 14,225.02
31138 Gateway Self Storage 5 13,631.73
-----------------------------------------------------------------------------------------------------------------------------------
31138-1 0000 Xxxxx Xxxxx Xx -
00000-0 000 Xxxxxxx Xx -
00000-0 000 Xxxxxxxx Xxxxx Xx -
00000 Xxxxxx Xxxx Center 5 13,973.58
30236 Central Self Storage 5 13,108.14
33494 Shurgard Self Storage 5 12,773.70
09-0001575 Clinton Storage Park 1 12,885.27
00000 Xxxxxx Xxxxxxx 5 12,139.74
-----------------------------------------------------------------------------------------------------------------------------------
36071 Villa Dylano Phase II 5 11,388.61
35538 Shoppes at Palm Way 5 11,990.88
00000 Xxxxxxx Xxxxxxx Apartments 5 11,782.26
32019 Xxxxxxxx Xxxx Apartments 5 9,939.61
33614 0000-0000 Xxxxxx Xxxx 5 9,532.39
-----------------------------------------------------------------------------------------------------------------------------------
09-0001580 Flagler Crossing 1 10,893.57
09-0001589 River's Edge Apartments 1 5,479.23
09-0001584 Highland Terrace Apartments 1 5,035.52
ADDITIONAL
BROKER STRIP SERVICING
LOAN NUMBER PROPERTY NAME PREPAYMENT PROVISION LOAN FEE LOAN
-----------------------------------------------------------------------------------------------------------------------------------
DBM17167 Harbour Gates Apartments Lockout/24_Defeasance/92_0%/4
33878 Sovran Self-Storage Loan Lockout/30_Defeasance/88_0%/2
33878-1 Sovran Self-Storage (Austin)
33878-2 Sovran Self-Storage (Xxxxxxxx)
-----------------------------------------------------------------------------------------------------------------------------------
33878-3 Sovran Self-Storage (Dayton)
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxx Xxxxxxx)
33878-5 Sovran Self-Storage (Kalamazoo)
-----------------------------------------------------------------------------------------------------------------------------------
33878-6 Sovran Self-Storage (League City)
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx Xxxxx)
00000-0 Sovran Self-Storage (Northbridge)
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxxxxxx)
00000-00 Sovran Self-Storage (Wyoming)
-----------------------------------------------------------------------------------------------------------------------------------
33878-11 Sovran Self-Storage (Springdale)
DBM16985 101 West Ohio Lockout/25_Defeasance/90_0%/5
09-0001473 Xxxx Industrial Lockout/35_Defeasance/81_0%/4 Yes
09-0001557 Xxxxxxxxxxxx Industrial Park - Piedmont Lockout/28_Defeasance/88_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
09-0001558 Xxxxxxxxxxxx Industrial Park - American Lockout/28_Defeasance/88_0%/4
09-0001559 Xxxxxxxxxxxx Xxxxxxxxxx Xxxx - Xxxxxxx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
09-0001560 Xxxxxxxxxxxx Industrial Park - Foxfire Lockout/28_Defeasance/88_0%/4
09-0001561 Xxxxxxxxxxxx Industrial Park - Keystone Lockout/28_Defeasance/88_0%/4
09-0001562 Xxxxxxxxxxxx Industrial Park - MESPA Lockout/28_Defeasance/88_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
09-0001563 Xxxxxxxxxxxx Industrial Park - Enterprise Lockout/28_Defeasance/88_0%/4
09-0001564 Xxxxxxxxxxxx Industrial Park - Colonial Lockout/28_Defeasance/88_0%/4
DBM17126 The Westin Portland Lockout/24_Defeasance/89_0%/7
DBM16010 Xxxxxxxx Xxxx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
00-0000000 Xxxxxxxxx Xxxx Square Lockout/33_Defeasance/83_0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
30438 Courtyard by Marriott (New Orleans) Lockout/48_Defeasance/68_0%/4
DBM16975 Pierside Pavilion Lockout/25_Defeasance/91_0%/4
DBM16754 White Oak Towers Apartments Lockout/26_Defeasance/90_0%/4
34417 Cross Pointe Lockout/27_Defeasance/31_0%/2
DBM16849 Haverhill Apartments Lockout/26_Defeasance/30_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
DBM17032 Xxxxxx Shopping Center Lockout/24_Defeasance/92_0%/4
34665 Xxxxxxx Office Building Lockout/28_Defeasance/90_0%/2
09-0001518 Summit Palm Lake Apartments Lockout/34_Defeasance/22_0%/4 Yes
33484 Towne Center Lockout/30_ Defeasance/88_0%/2
DBM16845 Springfield Hilton Hotel Lockout/24_> of YM or 1%/92_0%/4
DBM17161 Landsdowne Centre Lockout/24_Defeasance/212_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
09-0001576 Xxxxxxxx Xxxxx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
00000 XXX Industrial Lockout/27_ Defeasance/89_0%/4
34270 The Homestead Lockout/29_Defeasance/89_0%/2
09-0001606 The Palms at Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
00000 Xxxx Xxxx Xxxx Lockout/29_Defeasance/87_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
09-0001523 Xxxxx Creek and Magnolia MHP Portfolio Lockout/34_Defeasance/82_0%/4 Yes
09-0001523-A Xxxxx Xxxxx Xxxxxx Xxxx Xxxx
00-0000000-X Xxxxxxxx Xxxxxxx Mobile Home Park
00-0000000 Xxxx Xxxxxxx Xxxxxx Xxxx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
00000 Xxxxx Xxxx Southside Lockout/24_Defeasance/92_0%/4
32376 Holiday Inn (Orangeburg) Lockout/43_Defeasance/73_0%/4
DBM16776 Pheasant Ridge Lockout/26_Defeasance/90_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
DBM16810 Cedar Grove Shopping Center Lockout/25_Defeasance/91_0%/4
DBM17061 American Heritage Plaza Lockout/24_Defeasance/92_0%/4
09-0001548 Xxxxxxxx Commerce Center I Lockout/28_Defeasance/88_0%/4
09-0001549 Xxxxxxxx Commerce Center II Lockout/28_Defeasance/88_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
09-0001599 Westgate Marketplace Lockout/26_Defeasance/90_0%/4
DBM17027 Nob Hill Apartments Lockout/25_Defeasance/31_0%/4
09-0001569 Pheasant Run Plaza Lockout/28_Defeasance/88_0%/4
DBM16767 00 Xxxxxxxxx Xxxx Lockout/25_Defeasance/121_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
DBM16751 Xxxxxxx Towers Apartments Lockout/26_Defeasance/90_0%/4
09-0001567 Lottsford Business Center Lockout/29_Defeasance/87_0%/4
09-0001590 Sauk Gardens Apartments Lockout/26_Defeasance/90_0%/4 Yes
36069 Jacob's Landing Lockout/24_Defeasance/94_0%/2
09-0001585 Junction Ridge Apartments Lockout/26_Defeasance/90_0%/4 Yes
DBM16846 1895 Xxxx Xxxxxxx Road Lockout/24_Defeasance/92_0%/4
DBM16747 Kenilworth Towers Apartments Lockout/25_Defeasance/91_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
09-0001595 Airpark 99 Lockout/26_Defeasance/90_0%/4
DBM17206 Charlestown North Lockout/24_Defeasance/92_0%/4
09-0001596 Xxxx Xxxxx Xxxxxxx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
00000 Xxxxxx at Xxxxxxxxx Shopping Centre Lockout/25_Defeasance/91_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
34538 Orchard Manor Apartments Lockout/29_Defeasance/87_0%/4
35281 Village Square Apartments Lockout/29_Defeasance/87_0%/4
DBM17041 XxXxxxx Portfolio Lockout/25_Defeasance/91_0%/4
DBM17041-A 0000 Xxxxxx Xxxx
DBM17041-B 0000 Xxxxx Xxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
35564 Mission Bay Self Storage Lockout/24_Defeasance/94_0%/2
33110 Adobe Villas Apartments Lockout/34_Defeasance/84_0%/2
-----------------------------------------------------------------------------------------------------------------------------------
09-0001550 0000 Xxxxxxxxx Xxx Building Lockout/29_Defeasance/87_0%/4 Yes
09-0001582 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
00000 Xxxxxx Mirage Apartments Lockout/35_> of YM or 1%/81_0%/4
09-0001581 Clear Xxxx Xxxxxxx Xxxxxxxxxx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
00000 Xxxxxxxxx Apartments Lockout/30_Defeasance/88_0%/2
-----------------------------------------------------------------------------------------------------------------------------------
09-0001578 Kingstree Commons Shopping Center Lockout/26_Defeasance/90_0%/4 Yes
34086 Target at Xxxxxx Valley Mall Lockout/29_Defeasance/87_0%/4
09-0001566 Palm Harbor Commons Lockout/29_Defeasance/87_0%/4 Yes
09-0001568 General Kearny Apartments Lockout/29_Defeasance/87_0%/4
09-0001592 00 Xxxxx Xxxxxx Lockout/27_Defeasance/89_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
09-0001577 Corporate Tower Lockout/28_Defeasance/88_0%/4 Yes
09-0001579 Dundee Ridge Plaza Lockout/25_Defeasance/91_0%/4 Yes
32451 Xxxxxx Self Storage Lockout/34_Defeasance/84_0%/2
-----------------------------------------------------------------------------------------------------------------------------------
DBM16950 Xxxx Xxxx Xxxxxxxxxx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
00000 Xxx Xxxxx Portfolio Lockout/24_Defeasance/94_0%/2
35756-1 000-000 Xxxxxxx Xxxxxx Apartments
35756-2 000-000 Xxxxxx Xxxxxx
35756-3 238-258 College Street
DBM16970 Xxxxxxx Court Lockout/24_Defeasance/92_0%/4
09-0001570 Ashburn Farm II Lockout/28_> of YM or 1%/88_0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
09-0001565 Cape Xxxxxxx Food Lion Lockout/29_Defeasance/87_0%/4 Yes
09-0001537 Englewood Place Apartments Lockout/32_Defeasance/84_0%/4
36167 Southwind Apartments Lockout/35_> of YM or 1%/81_0%/4
09-0001574 Lakeland Parkway Self Storage Lockout/28_Defeasance/88_0%/4 Yes
09-0001594 Camelot Apartments Lockout/26_Defeasance/90_0%/4
-----------------------------------------------------------------------------------------------------------------------------------
DBM16923 Wyndfall Apartments Lockout/25_Defeasance/91_0%/4
09-0001593 Seminole Creek Apartments Lockout/26_Defeasance/90_0%/4 Yes
09-0001556 Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0 Yes
35673 Millburn Office Lockout/23_Defeasance/95_0%/2
-----------------------------------------------------------------------------------------------------------------------------------
09-0001555 Victoria Pointe Apartments Lockout/30_Defeasance/86_0%/4 Yes
09-0001554 Parkway Centre North Lockout/30_> of YM or 1% or Defeasance/83_0%/7 Yes
09-0001572 Riverview Commons Lockout/29_Defeasance/87_0%/4 Yes
34008 Xxxxxxxx Canyon Industrial Building Lockout/26_ Defeasance/92_ 0%/2
34947 Xxxxxxxx Self Storage Lockout/27_ Defeasance/91_ 0%/2
-----------------------------------------------------------------------------------------------------------------------------------
36168 Loma Verde Apartments Lockout/35_> of YM or 1%/81_0%/4
09-0001539 Englewood Townhomes Lockout/33_Defeasance/83_0%/4
09-0001605 Towne Oaks Apartments Lockout/25_Defeasance/91_0%/4
34926 Pelican Bay Apartments Lockout/30_ Defeasance/88_ 0%/2
31138 Gateway Self Storage Lockout/35_Defeasance/83_0%/2
-----------------------------------------------------------------------------------------------------------------------------------
31138-1 0000 Xxxxx Xxxxx Xx
00000-0 000 Xxxxxxx Xx
00000-0 000 Xxxxxxxx Xxxxx Xx
00000 Xxxxxx Xxxx Center Lockout/28_Defeasance/90_0%/2
30236 Central Self Storage Lockout/35_Defeasance/83_0%/2
33494 Shurgard Self Storage Lockout/24_Defeasance/94_0%/2
09-0001575 Clinton Storage Park Lockout/28_Defeasance/88_0%/4 Yes
34105 Xxxxxx Landing Lockout/27_Defeasance/91_0%/2
-----------------------------------------------------------------------------------------------------------------------------------
36071 Villa Dylano Phase II Lockout/24_Defeasance/94_0%/2
35538 Shoppes at Xxxx Xxx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
00000 Xxxxxxx Xxxxxxx Apartments Lockout/35_Defeasance/83_0%/2
32019 Xxxxxxxx Xxxx Apartments Lockout/30_Defeasance/89_0%/1
33614 0000-0000 Xxxxxx Xxxx Lockout/26_ Defeasance/92_ 0%/2
-----------------------------------------------------------------------------------------------------------------------------------
09-0001580 Flagler Crossing Lockout/27_Defeasance/149_0%/4 Yes
09-0001589 River's Edge Apartments Lockout/26_Defeasance/90_0%/4 Yes
09-0001584 Highland Terrace Apartments Lockout/26_Defeasance/90_0%/4 Yes
CROSS COLLATERALIZED ENVIRONMENTAL LETTER OF
LOAN NUMBER PROPERTY NAME LOAN GROUPS INSURANCE LOAN CREDIT LOAN
---------------------------------------------------------------------------------------------------------------------------------
DBM17167 Harbour Gates Apartments
33878 Sovran Self-Storage Loan
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx)
00000-0 Sovran Self-Storage (Xxxxxxxx)
---------------------------------------------------------------------------------------------------------------------------------
33878-3 Sovran Self-Storage (Dayton)
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxx Xxxxxxx)
33878-5 Sovran Self-Storage (Kalamazoo)
---------------------------------------------------------------------------------------------------------------------------------
33878-6 Sovran Self-Storage (League City)
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx Xxxxx)
00000-0 Sovran Self-Storage (Northbridge)
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxxxxxx)
00000-00 Sovran Self-Storage (Wyoming)
---------------------------------------------------------------------------------------------------------------------------------
33878-11 Sovran Self-Storage (Springdale)
DBM16985 000 Xxxx Xxxx XXX00000 Yes
09-0001473 Xxxx Industrial
09-0001557 Xxxxxxxxxxxx Industrial Park - Piedmont Group A
---------------------------------------------------------------------------------------------------------------------------------
09-0001558 Xxxxxxxxxxxx Industrial Park - American Group A
09-0001559 Xxxxxxxxxxxx Industrial Park - Capitol Group A
09-0001560 Xxxxxxxxxxxx Industrial Park - Foxfire Group A
09-0001561 Xxxxxxxxxxxx Industrial Park - Keystone Group A
09-0001562 Xxxxxxxxxxxx Industrial Park - MESPA Group A
---------------------------------------------------------------------------------------------------------------------------------
09-0001563 Xxxxxxxxxxxx Industrial Park - Enterprise Group A
09-0001564 Xxxxxxxxxxxx Industrial Park - Colonial Group A
DBM17126 The Westin Portland
DBM16010 Xxxxxxxx Mall
09-0001541 Southlake Town Square
---------------------------------------------------------------------------------------------------------------------------------
30438 Courtyard by Marriott (New Orleans)
DBM16975 Xxxxxxxx Xxxxxxxx
XXX00000 Xxxxx Xxx Xxxxxx Xxxxxxxxxx
00000 Xxxxx Xxxxxx 34417 Yes
DBM16849 Haverhill Apartments
---------------------------------------------------------------------------------------------------------------------------------
DBM17032 Xxxxxx Shopping Center
34665 Xxxxxxx Office Building
09-0001518 Summit Palm Lake Apartments
33484 Towne Center
DBM16845 Springfield Hilton Hotel
DBM17161 Landsdowne Centre
---------------------------------------------------------------------------------------------------------------------------------
09-0001576 Heritage Plaza
33847 VIC Industrial Yes
34270 The Homestead
09-0001606 The Palms at Xxxxx Xxxxx Xxxxxxxxxx
00000 Xxxx Xxxx Xxxx
---------------------------------------------------------------------------------------------------------------------------------
09-0001523 Xxxxx Creek and Magnolia MHP Portfolio
09-0001523-A Xxxxx Creek Xxxxxx Xxxx Xxxx
00-0000000-X Xxxxxxxx Xxxxxxx Mobile Home Park
00-0000000 Xxxx Xxxxxxx Xxxxxx Xxxx
00000 Xxxxx Xxxx Xxxxxxxxx
00000 Holiday Inn (Orangeburg)
DBM16776 Pheasant Ridge
---------------------------------------------------------------------------------------------------------------------------------
DBM16810 Cedar Grove Shopping Center DBM16810
DBM17061 American Heritage Plaza DBM17061
09-0001548 Xxxxxxxx Commerce Center I Group B
09-0001549 Xxxxxxxx Commerce Center II Group B
---------------------------------------------------------------------------------------------------------------------------------
09-0001599 Westgate Marketplace
DBM17027 Nob Hill Apartments
09-0001569 Xxxxxxxx Xxx Xxxxx
XXX00000 00 Xxxxxxxxx Xxxx
---------------------------------------------------------------------------------------------------------------------------------
DBM16751 Xxxxxxx Towers Apartments
09-0001567 Xxxxxxxxx Xxxxxxxx Xxxxxx
00-0000000 Xxxx Xxxxxxx Apartments Yes
36069 Jacob's Landing
09-0001585 Junction Ridge Apartments Yes
DBM16846 1895 Xxxx Xxxxxxx Road
DBM16747 Kenilworth Towers Apartments
---------------------------------------------------------------------------------------------------------------------------------
09-0001595 Airpark 99
DBM17206 Charlestown North
09-0001596 Xxxx Xxxxx Xxxxxxx
00000 Xxxxxx at Xxxxxxxxx Shopping Centre
---------------------------------------------------------------------------------------------------------------------------------
34538 Orchard Manor Apartments Group C
35281 Village Square Apartments Group C
DBM17041 XxXxxxx Portfolio Yes
DBM17041-A 0000 Xxxxxx Xxxx
DBM17041-B 0000 Xxxxx Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------------
35564 Mission Bay Self Storage
33110 Adobe Villas Apartments
---------------------------------------------------------------------------------------------------------------------------------
09-0001550 0000 Xxxxxxxxx Xxx Xxxxxxxx
00-0000000 Xxxxxxx Xxxxx Apartments
36169 Rancho Mirage Apartments
09-0001581 Clear Xxxx Xxxxxxx Xxxxxxxxxx
00000 Xxxxxxxxx Xxxxxxxxxx
---------------------------------------------------------------------------------------------------------------------------------
09-0001578 Kingstree Commons Shopping Center
34086 Target at Xxxxxx Xxxxxx Xxxx
00-0000000 Xxxx Xxxxxx Xxxxxxx
09-0001568 General Kearny Apartments
09-0001592 00 Xxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
09-0001577 Corporate Tower Yes
09-0001579 Xxxxxx Xxxxx Xxxxx
00000 Xxxxxx Self Storage
---------------------------------------------------------------------------------------------------------------------------------
DBM16950 Xxxx Xxxx Xxxxxxxxxx
00000 Xxx Xxxxx Xxxxxxxxx
35756-1 000-000 Xxxxxxx Xxxxxx Apartments
35756-2 000-000 Xxxxxx Xxxxxx
35756-3 000-000 Xxxxxxx Xxxxxx
DBM16970 Xxxxxxx Court
09-0001570 Ashburn Farm II
---------------------------------------------------------------------------------------------------------------------------------
09-0001565 Cape Xxxxxxx Food Lion
09-0001537 Englewood Place Apartments
36167 Southwind Apartments
09-0001574 Lakeland Parkway Self Storage
09-0001594 Camelot Apartments
---------------------------------------------------------------------------------------------------------------------------------
DBM16923 Wyndfall Apartments
09-0001593 Seminole Creek Apartments Yes
09-0001556 Xxxxxxxxx Xxxxx Xxxxxxxxxx
00000 Millburn Office
---------------------------------------------------------------------------------------------------------------------------------
09-0001555 Xxxxxxxx Xxxxxx Xxxxxxxxxx
00-0000000 Xxxxxxx Xxxxxx Xxxxx
09-0001572 Riverview Commons
00000 Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx
00000 Xxxxxxxx Self Storage
---------------------------------------------------------------------------------------------------------------------------------
36168 Loma Verde Apartments
09-0001539 Englewood Townhomes
09-0001605 Xxxxx Xxxx Xxxxxxxxxx
00000 Xxxxxxx Xxx Apartments
31138 Gateway Self Storage
---------------------------------------------------------------------------------------------------------------------------------
31138-1 0000 Xxxxx Xxxxx Xx
00000-0 000 Xxxxxxx Xx
00000-0 000 Xxxxxxxx Xxxxx Xx
00000 Xxxxxx Xxxx Center
30236 Central Self Storage
33494 Shurgard Self Storage
09-0001575 Clinton Storage Park
34105 Xxxxxx Landing
---------------------------------------------------------------------------------------------------------------------------------
36071 Xxxxx Xxxxxx Xxxxx XX
00000 Shoppes at Xxxx Xxx Xxx
00000 Xxxxxxx Xxxxxxx Apartments
32019 Xxxxxxxx Xxxx Apartments
33614 0000-0000 Xxxxxx Xxxx
---------------------------------------------------------------------------------------------------------------------------------
09-0001580 Flagler Crossing
09-0001589 River's Edge Apartments Yes
09-0001584 Highland Terrace Apartments Yes
MASTER
SERVICING
LOAN NUMBER PROPERTY NAME LEASEHOLD FEE RATE (%) LOAN SELLER
------------------------------------------------------------------------------------------------------------------------------
DBM17167 Harbour Gates Apartments 0.03320 Deutsche Bank
33878 Sovran Self-Storage Loan 0.12820 GMACCM
33878-1 Sovran Self-Storage (Austin) GMACCM
33878-2 Sovran Self-Storage (Xxxxxxxx) GMACCM
------------------------------------------------------------------------------------------------------------------------------
33878-3 Sovran Self-Storage (Dayton) GMACCM
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxx Xxxxxxx) GMACCM
33878-5 Sovran Self-Storage (Kalamazoo) GMACCM
------------------------------------------------------------------------------------------------------------------------------
33878-6 Sovran Self-Storage (League City) GMACCM
00000-0 Xxxxxx Xxxx-Xxxxxxx (Xxxxxx Xxxxx) GMACCM
33878-8 Sovran Self-Storage (Northbridge) GMACCM
33878-9 Sovran Self-Storage (Titusville) GMACCM
33878-10 Sovran Self-Storage (Wyoming) GMACCM
------------------------------------------------------------------------------------------------------------------------------
33878-11 Sovran Self-Storage (Springdale) GMACCM
DBM16985 101 West Ohio 0.03320 Deutsche Bank
09-0000000 Xxxx Industrial 0.06320 Archon Financial
09-0001557 Xxxxxxxxxxxx Industrial Park - Piedmont 0.03320 Archon Financial
------------------------------------------------------------------------------------------------------------------------------
09-0001558 Xxxxxxxxxxxx Industrial Park - American 0.03320 Archon Financial
09-0001559 Xxxxxxxxxxxx Xxxxxxxxxx Xxxx - Xxxxxxx 0.00000 Xxxxxx Financial
09-0001560 Xxxxxxxxxxxx Industrial Park - Foxfire 0.03320 Archon Financial
09-0001561 Xxxxxxxxxxxx Industrial Park - Keystone 0.03320 Archon Financial
09-0001562 Xxxxxxxxxxxx Industrial Park - MESPA 0.03320 Archon Financial
------------------------------------------------------------------------------------------------------------------------------
09-0001563 Xxxxxxxxxxxx Industrial Park - Enterprise 0.03320 Archon Financial
09-0001564 Xxxxxxxxxxxx Industrial Park - Colonial 0.03320 Archon Financial
DBM17126 Xxx Xxxxxx Xxxxxxxx 0.00000 Xxxxxxxx Bank
DBM16010 Xxxxxxxx Xxxx 0.00000 Xxxxxxxx Bank
09-0000000 Southlake Town Square 0.10320 Archon Financial
------------------------------------------------------------------------------------------------------------------------------
30438 Courtyard by Marriott (New Orleans) 0.12820 GMACCM
DBM16975 Xxxxxxxx Xxxxxxxx 0.00000 Xxxxxxxx Bank
DBM16754 Xxxxx Xxx Xxxxxx Xxxxxxxxxx 0.00000 Xxxxxxxx Bank
34417 Cross Pointe 0.12820 GMACCM
DBM16849 Haverhill Apartments 0.03320 Deutsche Bank
------------------------------------------------------------------------------------------------------------------------------
DBM17032 Xxxxxx Shopping Center 0.03320 Deutsche Bank
00000 Xxxxxxx Xxxxxx Xxxxxxxx 0.00000 XXXXXX
09-0001518 Summit Palm Lake Apartments 0.10320 Archon Financial
33484 Towne Center Both Fee/Leasehold 0.12820 GMACCM
DBM16845 Springfield Hilton Hotel 0.03320 Deutsche Bank
DBM17161 Xxxxxxxxxx Xxxxxx 0.00000 Xxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------
09-0001576 Heritage Plaza 0.03320 Archon Financial
33847 VIC Industrial 0.12820 GMACCM
34270 The Homestead 0.12820 GMACCM
09-0001606 The Palms at South Shore Apartments 0.03320 Archon Financial
33100 Lake City Mall 0.12820 GMACCM
------------------------------------------------------------------------------------------------------------------------------
09-0001523 Xxxxx Creek and Magnolia MHP Portfolio 0.07320 Archon Financial
09-0001523-A Xxxxx Creek Mobile Home Park Archon Financial
09-0001523-B Magnolia Estates Mobile Home Park Archon Financial
09-0001571 Xxxx Xxxxxxx Xxxxxx Xxxx 0.00000 Xxxxxx Financial
36206 Santa Xxxx Southside 0.12820 GMACCM
32376 Holiday Inn (Orangeburg) Leasehold 0.12820 GMACCM
DBM16776 Xxxxxxxx Xxxxx 0.00000 Xxxxxxxx Bank
------------------------------------------------------------------------------------------------------------------------------
DBM16810 Cedar Grove Shopping Center 0.03320 Deutsche Bank
DBM17061 American Xxxxxxxx Xxxxx Xxxxxxxxx 0.00000 Xxxxxxxx Bank
09-0000000 Xxxxxxxx Commerce Center I 0.03320 Archon Financial
09-0001549 Xxxxxxxx Commerce Center II 0.03320 Archon Financial
------------------------------------------------------------------------------------------------------------------------------
09-0001599 Westgate Marketplace 0.03320 Archon Financial
DBM17027 Nob Hill Apartments 0.03320 Deutsche Bank
09-0000000 Xxxxxxxx Xxx Xxxxx 0.00000 Xxxxxx Financial
DBM16767 00 Xxxxxxxxx Xxxx 0.00000 Xxxxxxxx Bank
------------------------------------------------------------------------------------------------------------------------------
DBM16751 Xxxxxxx Xxxxxx Xxxxxxxxxx 0.00000 Xxxxxxxx Bank
09-0000000 Lottsford Business Center 0.03320 Archon Financial
09-0001590 Sauk Gardens Apartments 0.07320 Archon Financial
36069 Jacob's Landing 0.12820 GMACCM
09-0001585 Xxxxxxxx Xxxxx Xxxxxxxxxx 0.00000 Archon Financial
DBM16846 1895 Xxxx Xxxxxxx Xxxx 0.00000 Xxxxxxxx Bank
DBM16747 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx 0.00000 Xxxxxxxx Bank
------------------------------------------------------------------------------------------------------------------------------
09-0001595 Airpark 99 0.03320 Archon Financial
DBM17206 Xxxxxxxxxxx Xxxxx 0.00000 Xxxxxxxx Bank
09-0000000 Mira Vista Commons 0.03320 Archon Financial
34560 Pueblo at Xxxxxxxxx Xxxxxxxx Xxxxxx 0.00000 XXXXXX
------------------------------------------------------------------------------------------------------------------------------
34538 Xxxxxxx Xxxxx Xxxxxxxxxx 0.00000 XXXXXX
35281 Xxxxxxx Xxxxxx Xxxxxxxxxx 0.00000 XXXXXX
DBM17041 XxXxxxx Portfolio 0.03320 Deutsche Bank
DBM17041-A 0000 Xxxxxx Xxxx Deutsche Bank
DBM17041-B 0000 Xxxxx Xxxxxxx Deutsche Bank
------------------------------------------------------------------------------------------------------------------------------
35564 Mission Bay Self Storage 0.12820 GMACCM
33110 Adobe Villas Apartments 0.12820 GMACCM
------------------------------------------------------------------------------------------------------------------------------
09-0001550 0000 Xxxxxxxxx Xxx Xxxxxxxx 0.08320 Archon Financial
09-0001582 Hickory Ridge Apartments 0.03320 Archon Financial
36169 Rancho Mirage Apartments 0.12820 GMACCM
09-0001581 Clear Lake Village Apartments 0.03320 Archon Financial
34347 Courtyard Apartments 0.12820 GMACCM
------------------------------------------------------------------------------------------------------------------------------
09-0001578 Kingstree Commons Shopping Center 0.08320 Archon Financial
34086 Target at Xxxxxx Valley Mall 0.12820 GMACCM
09-0001566 Palm Harbor Commons 0.09320 Archon Financial
09-0001568 General Kearny Apartments 0.03320 Archon Financial
09-0001592 00 Xxxxx Xxxxxx 0.03320 Archon Financial
------------------------------------------------------------------------------------------------------------------------------
09-0001577 Corporate Tower 0.08320 Archon Financial
09-0001579 Dundee Ridge Plaza 0.10320 Archon Financial
32451 Xxxxxx Self Storage 0.12820 GMACCM
------------------------------------------------------------------------------------------------------------------------------
DBM16950 Park West Apartments 0.03320 Deutsche Bank
35756 Xxx Xxxxx Xxxxxxxxx 0.00000 XXXXXX
35756-1 000-000 Xxxxxxx Xxxxxx Xxxxxxxxxx XXXXXX
00000-0 000-000 Xxxxxx Xxxxxx XXXXXX
00000-0 238-258 College Street GMACCM
DBM16970 Xxxxxxx Xxxxx 0.00000 Xxxxxxxx Bank
09-0000000 Ashburn Farm II 0.08320 Archon Financial
------------------------------------------------------------------------------------------------------------------------------
09-0001565 Cape Xxxxxxx Food Lion 0.08320 Archon Financial
09-0001537 Englewood Place Apartments 0.03320 Archon Financial
36167 Southwind Apartments 0.12820 GMACCM
09-0001574 Lakeland Parkway Self Storage 0.08320 Archon Financial
09-0001594 Camelot Apartments 0.03320 Archon Financial
------------------------------------------------------------------------------------------------------------------------------
DBM16923 Wyndfall Apartments 0.03320 Deutsche Bank
09-0000000 Seminole Creek Apartments 0.09320 Archon Financial
09-0001556 Xxxxxxxxx Xxxxx Xxxxxxxxxx 0.00000 Archon Financial
35673 Millburn Office 0.12820 GMACCM
------------------------------------------------------------------------------------------------------------------------------
09-0001555 Xxxxxxxx Xxxxxx Xxxxxxxxxx 0.00000 Xxxxxx Financial
09-0001554 Parkway Centre North 0.08320 Archon Financial
09-0001572 Riverview Commons 0.08320 Archon Financial
34008 Xxxxxxxx Canyon Industrial Building 0.12820 GMACCM
34947 Xxxxxxxx Self Storage 0.12820 GMACCM
------------------------------------------------------------------------------------------------------------------------------
36168 Loma Verde Apartments 0.12820 GMACCM
09-0001539 Englewood Townhomes 0.03320 Archon Financial
09-0001605 Towne Oaks Apartments 0.03320 Archon Financial
34926 Pelican Bay Apartments 0.12820 GMACCM
31138 Gateway Self Storage 0.12820 GMACCM
------------------------------------------------------------------------------------------------------------------------------
31138-1 0000 Xxxxx Xxxxx Xx XXXXXX
00000-0 000 Xxxxxxx Xx XXXXXX
00000-0 000 Xxxxxxxx Xxxxx Xx XXXXXX
00000 Xxxxxx Xxxx Center 0.12820 GMACCM
30236 Central Self Storage 0.12820 GMACCM
33494 Shurgard Self Storage 0.12820 GMACCM
09-0001575 Clinton Storage Park 0.08320 Archon Financial
00000 Xxxxxx Xxxxxxx 0.12820 GMACCM
------------------------------------------------------------------------------------------------------------------------------
36071 Xxxxx Xxxxxx Xxxxx XX 0.00000 XXXXXX
00000 Shoppes at Palm Way 0.12820 GMACCM
28310 Xxxxxxx Xxxxxxx Xxxxxxxxxx 0.00000 XXXXXX
32019 Xxxxxxxx Xxxx Xxxxxxxxxx 0.00000 XXXXXX
33614 0000-0000 Xxxxxx Xxxx 0.12820 GMACCM
------------------------------------------------------------------------------------------------------------------------------
09-0001580 Flagler Crossing 0.10320 Archon Financial
09-0001589 River's Edge Apartments 0.09320 Archon Financial
09-0001584 Highland Terrace Apartments 0.09320 Archon Financial
Schedule 1 to 4.1
SCHEDULE II
CLOSING MORTGAGE FILE REVIEW CERTIFICATION
Schedule II-1
SCHEDULE III
POST-CLOSING MORTGAGE FILE REVIEW CERTIFICATION
FORM OF FINAL CERTIFICATION OF TRUSTEE
[Date]
GMAC Commercial Mortgage Securities, Inc. German American Capital Corporation
000 Xxxxxx Xxxx 00 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
[Controlling Class Certificateholders] Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
GMAC Commercial Mortgage Corporation Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Re: Pooling and Servicing Agreement, dated as of June 1, 2002 ("Pooling
and Servicing Agreement") relating to GMAC Commercial Mortgage
Securities Inc., Mortgage Pass-Through Certificates, Series 2002-C2
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in the exception
report annexed hereto as not being covered hereby), that: (i) all documents
specified in clauses (1) through (5), (9), (11) and (12) (in the case of clause
(11), without regard to whether such UCC financing statements were in the
possession of the Mortgage Loan Seller (or its agent)) of the definition of
"Mortgage File" are in its possession or the related Mortgage Loan Seller has
otherwise satisfied the delivery requirements in accordance with Section 2.01(b)
and (ii) all such documents have been reviewed by it or by a Custodian on its
behalf and (A) appear regular on their face, (B) appear to have been executed
(where appropriate) and (C) purport to relate to such Mortgage Loan.
The Trustee makes no representations as to: (i) the validity, legality,
sufficiency, enforceability or genuineness of any such documents contained in
each Mortgage File or any of the Mortgage Loans identified in the Mortgage Loan
Schedule, or (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Certificate is subject in all respects to the terms of
said Pooling and Servicing Agreement.
[SIGNATURE PAGE FOLLOWS]
Schedule III-1
LASALLE BANK NATIONAL ASSOCIATION
as Trustee
By:
------------------------------
Name:
Title:
Schedule III-2
SCHEDULE IV
ENVIRONMENTAL POLICY MORTGAGE LOANS
LOAN NUMBER NAME
----------- ----
34417 Cross Pointe
DBM16810 Cedar Grove Shopping Center
DBM16985 000 Xxxx Xxxx
XXX00000 American Heritage Plaza
Schedule IV-1
SCHEDULE V
STRIP CALCULATION SCHEDULE
DISTRIBUTION DATE
-----------------
July 2002.............................................................7.18490%
August 2002...........................................................7.42540%
September 2002........................................................7.42540%
October 2002..........................................................7.18490%
November 2002.........................................................7.42540%
December 2002.........................................................7.18490%
January 2003..........................................................7.18490%
February 2003.........................................................7.18490%
March 2003............................................................7.18540%
April 2003............................................................7.42540%
May 2003..............................................................7.18490%
June 2003.............................................................7.42540%
July 2003.............................................................7.18490%
August 2003...........................................................7.42540%
September 2003........................................................7.42540%
October 2003..........................................................7.18490%
November 2003.........................................................7.42540%
December 2003.........................................................7.18490%
January 2004..........................................................7.42550%
February 2004.........................................................7.18500%
March 2004............................................................7.18520%
April 2004............................................................7.42550%
May 2004..............................................................7.18500%
June 2004.............................................................7.42550%
July 2004.............................................................7.18500%
August 2004...........................................................7.41310%
September 2004........................................................7.41310%
October 2004..........................................................7.17300%
November 2004.........................................................7.41310%
December 2004.........................................................7.17300%
January 2005..........................................................7.17300%
February 2005.........................................................7.17300%
March 2005............................................................7.17360%
April 2005............................................................7.41310%
May 2005..............................................................7.17300%
June 2005.............................................................7.41310%
July 2005.............................................................7.17720%
August 2005...........................................................7.41740%
September 2005........................................................7.41740%
October 2005..........................................................7.17720%
November 2005.........................................................7.41740%
December 2005.........................................................7.17720%
January 2006..........................................................7.17720%
February 2006.........................................................7.17730%
March 2006............................................................7.17810%
April 2006............................................................7.41750%
May 2006..............................................................7.17370%
June 2006.............................................................7.41390%
July 2006.............................................................7.17370%
August 2006...........................................................7.41390%
Schedule V-1
DISTRIBUTION DATE
-----------------
September 2006........................................................7.41390%
October 2006..........................................................7.17370%
November 2006.........................................................7.41380%
December 2006.........................................................7.17370%
January 2007..........................................................7.17370%
February 2007.........................................................7.17590%
March 2007............................................................7.18250%
April 2007............................................................7.41470%
May 2007..............................................................7.17460%
June 2007.............................................................7.41470%
July 2007.............................................................7.17460%
August 2007...........................................................7.41470%
September 2007........................................................7.41470%
October 2007..........................................................7.17460%
November 2007.........................................................7.41470%
December 2007.........................................................7.17450%
January 2008..........................................................7.41470%
February 2008.........................................................7.17450%
March 2008............................................................7.17480%
April 2008............................................................7.41470%
May 2008..............................................................7.17450%
June 2008.............................................................7.41470%
July 2008.............................................................7.17450%
August 2008...........................................................7.41470%
September 2008........................................................7.41460%
October 2008..........................................................7.17450%
November 2008.........................................................7.41460%
December 2008.........................................................7.17450%
January 2009..........................................................7.17450%
February 2009.........................................................7.17450%
March 2009............................................................7.17540%
April 2009............................................................7.41460%
May 2009..............................................................7.17440%
June 2009.............................................................7.41460%
July 2009 and thereafter..............................................0.00000%
Schedule V-2
SCHEDULE VI
BROKER STRIP SCHEDULE
CUT-OFF DATE BROKER STRIP
LOAN NUMBER PROPERTY NAME BALANCE AMOUNT
09-0001518 Summit Palm Lake Apartments $14,790,047
09-0001541 Southlake Town Square $17,874,894
09-0001550 0000 Xxxxxxxxx Xxx Building $4,183,363
09-0001554 Parkway Centre North $2,439,039
09-0001556 Westfield Ridge Apartments $2,586,942
09-0001565 Cape Xxxxxxx Food Lion $3,188,290
09-0001570 Ashburn Farm II $3,190,296
09-0001574 Lakeland Parkway Self Storage $2,922,083
09-0001575 Clinton Storage Park $1,692,518
09-0001577 Corporate Tower $3,582,547
09-0001578 Kingstree Commons Shopping Center $4,015,096
09-0001579 Dundee Ridge Plaza $3,496,635
09-0001580 Flagler Crossing $1,189,211
Schedule VI-1
