SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended
Date of Report (Date of earliest event reported): November 7, 1996
GMAC Commercial Morgage Securities, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 33-94448 23-2811925
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification Number)
650 Dresher Road
Horsham, Pennsylvania 19044
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(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code (215) 682-3480
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Item 2. ACQUISITION OR DISPOSITION OF ASSETS
Description of the Certificates and the Mortgage Pool
On November 7, 1996, a single series of certificates, entitled GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
1996-C1 (the "Certificates"), was issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") attached hereto as Exhibit
4.1, dated as of November 1, 1996, among GMAC Commercial Mortgage Securities,
Inc. as depositor (the "Depositor"), GMAC Commercial Mortgage Corporation as
master servicer and special servicer, and State Street Bank and Trust Company as
trustee. The Certificates consists of fifteen classes identified as the "Class
X-1 Certificates", the "Class X-2 Certificates", the "Class A-1 Certificates",
the "Class A-2A Certificates", the "Class A-2B Certificates", the "Class B
Certificates", the "Class C Certificates", the "Class D Certificates", the
"Class E Certificates", the "Class F Certificates", the "Class G Certificates",
the "Class H Certificates", the "Class R-I Certificates", the "Class R-II
Certificates," and the "Class R-III Certificates", respectively, and were issued
in exchange for, and evidence the entire beneficial ownership interest in, the
assets of a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of commercial and multifamily mortgage loans (the "Mortgage
Loans"), having, as of the close of business on November 1, 1996 (the "Cut-off
Date"), an aggregate principal balance of $456,736,350 (the "Initial Pool
Balance"), after taking into account all payments of principal due on the
Mortgage Loans on or before such date, whether or not received. The Certificates
were sold by the Depositor to Goldman, Sachs & Co. ("Goldman"), on its own
behalf and as representative for Morgan Stanley & Co., Incorporated pursuant to
(i) an underwriting agreement, dated October 30, 1996 (the "Underwriting
Agreement"), between the Depositor, GMACCM and Goldman, as representative for
itself and Goldman and (ii) a certificate purchase agreement, dated October 30,
1996, between the Depositor, GMACCM and Goldman. The Underwriting Agreement is
attached hereto as Exhibit 1.1.
The Class X-1 Certificates will not have a initial certificate balance
("Certificate Balance"), but will represent the right to receive distributions
of interest accrued as provided in the Pooling and Servicing Agreement on a
hypothetical or notional amount (a "Notional Amount") equal of $33,475,146. The
Class X-2 Certificates have an Notional Amount of $456,279,658. The Class A-1
Certificates have an initial Certificate Balance of $33,475,146. The Class A-2A
Certificates have an initial Certificate Balance of $190,267,000. The Class A-
2B Certificates have an initial Certificate Balance of $71,963,000. The Class B
Certificates have an initial Certificate Balance of $31,978,000. The Class C
Certificates have an initial Certificate Balance of $26,268,000. The Class D
Certificates have an initial Certificate Balance of $27,409,000. The Class E
Certificates have an initial Certificate Balance of $13,705,000. The Class F
Certificates will have an initial Certificate Balance of $22,841,000. The Class
G Certificates will have an initial Certificate Balance of $19,415,000. The
Class H Certificates will have an initial Certificate Balance of $19,415,204.
The Class R-I, Class R-II and Class RIII Certificates each have an initial
Certificate Balance of $0.
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Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Not applicable
(b) Not applicable
(c) Exhibits
Exhibit No. Description
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1.1 Underwriting Agreement, dated as of October 30,
1996, between GMAC Commercial Mortgage
Securities, Inc. as seller and Goldman, Sachs &
Co., as representative for itself and Morgan
Stanley & Co., Incorporated, as underwriters.
4.1 Pooling and Servicing Agreement, dated as of
November 1, 1996, among GMAC Commercial Mortgage
Securities, Inc. as depositor, GMAC Commercial
Mortgage Corporation as master servicer and
special servicer, and State Street Bank and
Trust Company as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of
October 30, 1996, between GMAC Commercial
Mortgage Corporation as seller and GMAC
Commercial Mortgage Securities, Inc. as
purchaser.
99.2 Mortgage Loan Purchase Agreement, dated as of
October 30, 1996, between ContiTrade Services
L.L.C. as seller and GMAC Commercial Mortgage
Securities, Inc. as purchaser.
99.3 Mortgage Loan Purchase Agreement, dated as of
October 30, 1996, between ING (U.S.) Capital
Corporation as seller and GMAC Commercial
Mortgage Securities, Inc. as purchaser.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Elisa George
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Name: Elisa George
Title: Vice President
Dated: November 20, 1996
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Index To Exhibits
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Exhibit No. Description
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1.1 Underwriting Agreement, dated as of October 30,
1996, between GMAC Commercial Mortgage
Securities, Inc. as seller and Goldman, Sachs &
Co., as representative for itself and Morgan
Stanley & Co., Incorporated, as underwriters.
4.1 Pooling and Servicing Agreement, dated as of
November 1, 1996, among GMAC Commercial Mortgage
Securities, Inc. as depositor, GMAC Commercial
Mortgage Corporation as master servicer and
special servicer, and State Street Bank and
Trust Company as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of
October 30, 1996, between GMAC Commercial
Mortgage Corporation as seller and GMAC
Commercial Mortgage Securities, Inc. as
purchaser.
99.2 Mortgage Loan Purchase Agreement, dated as of
October 30, 1996, between ContiTrade Services
L.L.C. as seller and GMAC Commercial Mortgage
Securities, Inc. as purchaser.
99.3 Mortgage Loan Purchase Agreement, dated as of
October 30, 1996, between ING (U.S.) Capital
Corporation as seller and GMAC Commercial
Mortgage Securities, Inc. as purchaser.
EXHIBIT 1.1
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GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$395,151,146
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1996-C1
CLASS X-1, CLASS X-2, CLASS A-1, CLASS A-2A, CLASS A-2B,
CLASS B, CLASS C, CLASS D AND CLASS E
UNDERWRITING AGREEMENT
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as of October 30, 1996
Goldman, Sachs & Co.
As Representative of the several
Underwriters named in Schedule I hereto
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
GMAC Commercial Mortgage Securities, Inc., a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as representative (the
"Representative"), the respective classes of Mortgage PassThrough Certificates,
Series 1996-C1, that are identified on Schedule I, in each case, having the
initial aggregate stated principal amount (a "Class Principal Balance") or
initial aggregate notional principal amount (a "Class Notional Amount") and
initial pass-through rate set forth on Schedule I. The Class X-1, Class X-2,
Class A-1, Class A-2A, Class A-2B, Class B, Class C, Class D and Class E
Certificates (collectively, the "Certificates"), together with the Class F,
Class G and Class H Certificates issued therewith, will evidence the entire
interest in the Trust Fund (as defined in the Pooling and Servicing Agreement
referred to below) consisting primarily of a pool (the "Pool") of conventional,
multifamily and commercial mortgage loans (the "Mortgage Loans") as described in
the Prospectus Supplement (as hereinafter defined) to be sold by the Company.
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement") to be dated as of November 1, 1996 (the
"Cut-off Date") among the Company, as depositor, GMAC Commercial Mortgage
Corporation ("GMACCM"), as master servicer (in such capacity, the "Master
Servicer") and special servicer (in such capacity, the "Special Servicer"), and
State Street Bank & Trust Company, as trustee (the "Trustee"). The Certificates
are described in the Basic Prospectus and the Prospectus Supplement (each as
hereinafter defined) which the Company has furnished to the Representative.
Certain of the Mortgage Loans (the "GMACCM Mortgage Loans") will be
acquired by the Company from GMACCM pursuant to a mortgage loan purchase
agreement, dated as of October 30, 1996 (the "GMACCM Purchase Agreement"),
between the Company and GMACCM. Certain of the Mortgage Loans will be acquired
by the Company from
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Internationale Nederlanden (U.S.) Capital Corporation (to be known as ING (U.S.)
Capital Corporation effective as of November 1, 1996) ("ING Capital") pursuant
to a mortgage loan purchase agreement, dated as of October 30, 1996 (the "ING
Capital Purchase Agreement"), between the Company and ING Capital. Certain of
the Mortgage Loans will be acquired by the Company from ContiTrade Services
L.L.C. ("ContiTrade") pursuant to a mortgage loan purchase agreement, dated as
of October 30, 1996 (the "ContiTrade Purchase Agreement"), between the Company
and ContiTrade. GMACCM, ING Capital and ContiTrade collectively constitute the
"Mortgage Loan Sellers"; and the GMACCM Purchase Agreement, the ING Capital
Purchase Agreement and the ContiTrade Purchase Agreement collectively constitute
the "Purchase Agreements".
1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
1.1 The Company represents and warrants to, and agrees
with the Underwriters that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (No.
33-94448) on Form S-3 for the registration under the Securities Act of
1933, as amended (the "Act"), of Mortgage Pass-Through Certificates
(issuable in series), including the Certificates, which registration
statement has become effective, and a copy of which, as amended to the
date hereof, has heretofore been delivered to the Representative. The
Company proposes to file with the Commission pursuant to Rule 424(b)
under the rules and regulations of the Commission under the Act (the
"1933 Act Regulations") a supplement dated October 30, 1996 (the
"Prospectus Supplement"), to the prospectus dated October 22, 1996 (the
"Basic Prospectus"), relating to the Certificates and the method of
distribution thereof. Such registration statement (No. 33-94448)
including exhibits thereto and any information incorporated therein by
reference, as amended at the date hereof, is hereinafter called the
"Registration Statement"; the Basic Prospectus and the Prospectus
Supplement and any information incorporated therein by reference,
together with any amendment thereof or supplement thereto authorized by
the Company on or prior to the Closing Date for use in connection with
the offering of the Certificates, are hereinafter called the
"Prospectus"; and any diskette attached to the Prospectus is
hereinafter called the "Diskette". Any preliminary form of the
Prospectus Supplement which has heretofore been filed pursuant to Rule
424, or prior to the effective date of the Registration Statement
pursuant to Rule 402(a), or 424(a) is hereinafter called a "Preliminary
Prospectus Supplement"; and any diskette attached to the Preliminary
Prospectus Supplement is hereinafter referred to as the "Preliminary
Diskette".
(b) The Registration Statement has become effective,
and the Registration Statement as of its effective date (the "Effective
Date"), and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the applicable
requirements of the Act and the 1933 Act Regulations; and the
Registration Statement, as of the Effective Date, did not contain any
untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus and any Diskette,
as of the date of the Prospectus Supplement, did not, and as of the
Closing Date will not,
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contain an untrue statement of a material fact and did not and will not
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that neither the Company nor GMACCM
makes any representations or warranties as to the information contained
in or omitted from the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto relating to the information
identified by underlining or other highlighting as shown in EXHIBIT C
(the "Excluded Information"); and provided, further, that neither the
Company nor GMACCM makes any representations or warranties as to either
(i) any information in any Computational Materials or ABS Term Sheets
(each as hereinafter defined) required to be provided by the
Underwriters to the Company pursuant to Section 4.2, or (ii) as to any
information contained in or omitted from the portions of the Prospectus
identified by underlining or other highlighting as shown in EXHIBIT D
(the "Underwriter Information"); and provided, further, that neither
the Company nor, except as contemplated by Section 1.2(a), GMACCM makes
any representations or warranties as to any information regarding the
Mortgage Loans or the Mortgage Loan Sellers contained in or omitted
from the portions of the Prospectus Supplement under the headings
"Summary of the Prospectus Supplement--The Mortgage Asset Pool", "Risk
Factors--The Mortgage Loans" and "Description of the Mortgage Asset
Pool" or contained in or omitted from Annex A to the Prospectus
Supplement or contained in or omitted from the Diskette (the "Mortgage
Loan Seller Information"), other than that any Mortgage Loan Seller
Information (exclusive of the information set forth on pages A-9
through A-45, inclusive, of Annex A to the Prospectus Supplement (the
"Loan Detail") and the information on the Diskette) that represents a
restatement or aggregation of the information on the Loan Detail,
accurately reflects the information contained in the Loan Detail; and
provided, further, that neither the Company nor GMACCM makes any
representations or warranties with respect to the Diskette to the
extent that the information set forth in the Diskette is different than
the information set forth in the Loan Detail. Neither the Company nor,
except as contemplated by Section 1.2(b), GMACCM makes any
representations or warranties, however, as to the accuracy or
completeness of any information in the Loan Detail. The Company
acknowledges that, except for any Computational Materials and ABS Term
Sheets, the Underwriter Information constitutes the only information
furnished in writing by or on behalf of any Underwriter for use in
connection with the preparation of the Registration Statement, any
preliminary prospectus or the Prospectus, and the Underwriters confirm
that the Underwriter Information is correct.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has the requisite corporate power to own its properties
and to conduct its business as presently conducted by it.
(d) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Representative on behalf of the Underwriters,
constitutes a valid, legal and binding obligation of the Company,
enforceable against the Company in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, (ii) generally principles of equity,
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regardless of whether such enforcement is considered in a proceeding in
equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations
limit the enforceability of the provisions of this Agreement that
purport to provide indemnification for securities laws liabilities.
(e) As of the Closing Date (as defined herein), the
Certificates will conform in all material respects to the description
thereof contained in the Prospectus and the representations and
warranties of the Company in the Pooling and Servicing Agreement will
be true and correct in all material respects.
1.2 GMACCM represents and warrants to and agrees with you
that:
(a) As of the Closing Date, the representations and
warranties of GMACCM in the Pooling and Servicing Agreement and in
Section 4(b) of the GMACCM Purchase Agreement will be true and correct
in all material respects.
(b) This Agreement has been duly authorized, executed
and delivered by GMACCM and, assuming the due authorization, execution
and delivery by the Representative on behalf of the Underwriters,
constitutes a valid, legal and binding obligation of GMACCM,
enforceable against GMACCM in accordance with the terms hereof, subject
to (i) applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' rights
generally, (ii) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law, and
(iii) public policy considerations underlying the securities laws to
the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to
provide indemnification for securities laws liabilities.
1.3 Each Underwriter represents and warrants to and
agrees with the Company and GMACCM that:
(a) With respect to each class of Certificates, if
any, to be issued in authorized denominations of less than $25,000
initial principal balance or evidencing percentage interests in such
class of less than 20%, as the case may be, the fair market value of
each such Certificate sold to any person on the date of initial sale
thereof by such Underwriter will not be less than $100,000; and with
respect to each class of Certificates to be maintained on the
book-entry records of The Depository Trust Company ("DTC"), the
interest in each such class of Certificates sold to any person on the
date of initial sale thereof by such Underwriter will not be less than
$25,000 initial principal balance or a percentage interest in such
class of less than 20%, as the case may be.
(b) Such Underwriter will have funds available at
Corestates Philadelphia in such Underwriter's account at such bank at
the time all documents are executed and the closing of the sale of the
Certificates is completed, except for the transfer of funds and the
delivery of the Certificates. Such funds will be available for
immediate transfer into the account of GMACCM maintained at such bank.
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(c) As of the date hereof and as of the Closing Date,
such Underwriter has complied with all of its obligations hereunder,
including, without limitation, Section 4.2, and, with respect to all
Computational Materials and ABS Term Sheets provided by such
Underwriter to the Company pursuant to Section 4.2, if any, such
Computational Materials and ABS Term Sheets are accurate in all
material respects (taking into account the assumptions explicitly set
forth in the Computational Materials or ABS Term Sheets, except to the
extent of any errors therein that are caused by errors in the Pool
Information) and include all assumptions relevant to the preparation
thereof. The Computational Materials and ABS Term Sheets provided by
such Underwriter to the Company constitute a complete set of all
Computational Materials and ABS Term Sheets delivered by such
Underwriter to prospective investors that are required to be filed with
the Commission.
1.4 The Representative represents and warrants to the Company and
GMACCM that it has been authorized by each of the other Underwriters to execute
and deliver this Agreement on their behalf.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agree,
severally and not jointly, to purchase from the Company, the actual or notional,
as the case may be, principal amounts or percentage interests set forth in
Schedule I hereto in the respective classes of Certificates at a price for each
such class set forth in Schedule I hereto. There will be added to the purchase
prices of the Certificates (other than the Class A-1 Certificates) an amount
equal to interest accrued thereon from the Cut-off Date to but not including the
Closing Date.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Certificates shall be made at the office of Thacher Proffitt & Wood at 10:00
a.m., New York City time, on November 7, 1996 or such later date as the
Representative shall designate, which date and time may be postponed by
agreement between the Representative and the Company (such date and time of
delivery and payment for the Certificates being herein called the "Closing
Date"). Delivery of the Certificates (also referred to herein as the "DTC
Registered Certificates") shall be made to the Representative for the respective
accounts of the Underwriters through DTC, in each case against payment by the
Underwriters of the purchase prices thereof to or upon the order of the Company
by wire transfer in immediately available funds.
4. OFFERING BY UNDERWRITERS.
4.1 It is understood that the Underwriters propose to
offer the Certificates for sale to the public as set forth in the Prospectus,
and the Underwriters agree that all such offers and sales by the Underwriters
shall be made in compliance with all applicable laws and regulations. It is
further understood that the Company, in reliance upon a no-filing letter from
the Attorney General of the State of New York granted pursuant to Policy
Statement 105, has not and will not file an offering statement pursuant to
Section 352-c of the General Business Law of the State of New York with respect
to the Certificates. As required by Policy Statement 105, each Underwriter
therefore covenants and agrees with the Company that sales of the Certificates
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made by such Underwriter in and from the State of New York will be made only to
institutional investors within the meaning of Policy Statement 105.
4.2 It is understood that each Underwriter may prepare
and provide to prospective investors certain Computational Materials and ABS
Term Sheets (each as defined below) in connection with its offering of the
Certificates, subject to the following conditions to be satisfied by such
Underwriter:
(a) In connection with the use of Computational
Materials, such Underwriter shall comply with all applicable
requirements of the No-Action Letter of May 20, 1994 issued by the
Commission to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated and Kidder Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association dated May
24, 1994 (collectively, the "Kidder/PSA Letter"), as well as the PSA
Letter referred to below. In connection with the use of ABS Term
Sheets, such Underwriter shall comply with all applicable requirements
of the NoAction Letter of February 17, 1995 issued by the Commission to
the Public Securities Association (the "PSA Letter" and, together with
the Kidder/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" as
used herein shall have the meaning given such term in the No-Action
Letters, but shall include only those Computational Materials that have
been prepared or delivered to prospective investors by or at the
direction of such Underwriter. For purposes hereof, "ABS Term Sheets"
and "Collateral Term Sheets" as used herein shall have the meanings
given such terms in the PSA Letter but shall include only those ABS
Term Sheets or Collateral Term Sheets that have been prepared or
delivered to prospective investors by or at the direction of such
Underwriter.
(c) (i) All Computational Materials and ABS Term
Sheets provided to prospective investors that are required to be filed
pursuant to the No-Action Letters shall bear a legend on each page
including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED
SOLELY BY [NAME OF APPLICABLE UNDERWRITER].
NEITHER THE ISSUER OF THE CERTIFICATES NOR ANY
OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO
THE ACCURACY OR COMPLETENESS OF THE
INFORMATION HEREIN. THE INFORMATION HEREIN IS
PRELIMINARY AND WILL BE SUPERSEDED BY THE
APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY
OTHER INFORMATION SUBSEQUENTLY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION."
(ii) In the case of Collateral Term Sheets,
such legend shall also include the following statement:
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"THE INFORMATION CONTAINED HEREIN WILL BE
SUPERSEDED BY THE DESCRIPTION OF THE MORTGAGE
POOL CONTAINED IN THE PROSPECTUS SUPPLEMENT
RELATING TO THE CERTIFICATES AND [,EXCEPT WITH
RESPECT TO THE INITIAL COLLATERAL TERM SHEET
PREPARED BY THE UNDERWRITERS,] SUPERSEDES ALL
INFORMATION CONTAINED IN ANY COLLATERAL TERM
SHEETS RELATING TO THE MORTGAGE POOL PREVIOUSLY
PROVIDED BY [NAME OF APPLICABLE UNDERWRITER]."
The Company shall have the right to require additional specific legends
or notations to appear on any Computational Materials or ABS Term
Sheets, the right to require changes regarding the use of terminology
and the right to determine the types of information appearing therein.
Notwithstanding the foregoing, subsection (c)(i) will be satisfied if
all Computational Materials and ABS Term Sheets referred to therein
bear a legend in a form previously approved in writing by the Company.
(d) Such Underwriter shall provide the Company with
representative forms of all Computational Materials and ABS Term Sheets
prior to their first use, to the extent such forms have not previously
been approved by the Company for use by the Underwriters. Such
Underwriter shall provide to the Company, for filing on Form 8-K as
provided in Section 5.9, copies (in such format as required by the
Company) of all Computational Materials and ABS Term Sheets that are
required to be filed with the Commission pursuant to the No-Action
Letters. Such Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to
be filed. All Computational Materials and ABS Term Sheets described in
this subsection (d) must be provided to the Company not later than
10:00 a.m. New York time one business day before filing thereof is
required pursuant to the terms of this Agreement. Such Underwriter
agrees that it will not provide to any investor or prospective investor
in the Certificates any Computational Materials or ABS Term Sheets on
or after the day on which Computational Materials and ABS Term Sheets
are required to be provided to the Company pursuant to this Section
4.2(d) (other than copies of Computational Materials or ABS Term Sheets
previously submitted to the Company in accordance with this Section
4.2(d) for filing pursuant to Section 5.9), unless such Computational
Materials or ABS Term Sheets are preceded or accompanied by the
delivery of a Prospectus to such investor or prospective investor.
(e) All information included in the Computational
Materials and ABS Term Sheets shall be generated based on substantially
the same methodology and assumptions that are used to generate the
information in the Prospectus Supplement as set forth therein;
PROVIDED, HOWEVER, that the Computational Materials and ABS Term Sheets
may include information based on alternative methodologies or
assumptions if specified therein. If any Computational Materials or ABS
Term Sheets delivered by such Underwriter that are required to be filed
were based on assumptions with respect to the Pool that differ from the
final Pool Information in any material respect or on Certificate
structuring terms that were revised in any material respect prior to
the printing of the
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Prospectus, such Underwriter shall prepare revised Computational
Materials or ABS Term Sheets, as the case may be, based on the final
Pool Information and structuring assumptions, circulate such revised
Computational Materials and ABS Term Sheets to all recipients of the
preliminary versions thereof that indicated orally to such Underwriter
they would purchase all or any portion of the Certificates, and include
such revised Computational Materials and ABS Term Sheets (marked, "as
revised") in the materials delivered to the Company pursuant to
subsection (d) above.
(f) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined to
contain any material error or omission, provided that, at the request
of an Underwriter, the Company will file Computational Materials or ABS
Term Sheets that contain a material error or omission if clearly marked
"superseded by materials dated __________" and accompanied by corrected
Computational Materials or ABS Term Sheets that are marked "material
previously dated __________, as corrected". In the event that within
the period during which the Prospectus relating to the Certificates is
required to be delivered under the Act, any Computational Materials or
ABS Term Sheets delivered by an Underwriter are determined, in the
reasonable judgment of the Company or such Underwriter, to contain a
material error or omission, such Underwriter shall prepare a corrected
version of such Computational Materials or ABS Term Sheets, shall
circulate such corrected Computational Materials and ABS Term Sheets to
all recipients of the prior versions thereof that either indicated
orally to such Underwriter they would purchase all or any portion of
the Certificates, or actually purchased all or any portion thereof, and
shall deliver copies of such corrected Computational Materials and ABS
Term Sheets (marked, "as corrected") to the Company for filing with the
Commission in a subsequent Form 8- K submission (subject to the
Company's obtaining an accountant's comfort letter in respect of such
corrected Computational Materials and ABS Term Sheets, which shall be
at the expense of such Underwriter).
(g) If an Underwriter does not provide any
Computational Materials or ABS Term Sheets to the Company pursuant to
subsection (d) above, such Underwriter shall be deemed to have
represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or electronic
form in connection with the offering of the Certificates that is
required to be filed with the Commission in accordance with the
No-Action Letters, and such Underwriter shall provide the Company with
a certification to that effect on the Closing Date.
(h) In the event of any delay in the delivery by such
Underwriter to the Company of all Computational Materials and ABS Term
Sheets required to be delivered in accordance with subsection (d)
above, or in the delivery of the accountant's comfort letter in respect
thereof pursuant to Section 5.9, the Company shall have the right to
delay the release of the Prospectus to investors or to the
Underwriters, to delay the Closing Date and to take other appropriate
actions, in each case as necessary in order to allow the Company to
comply with its agreement set forth in Section 5.9 to file the
Computational Materials and ABS Term Sheets by the time specified
therein.
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(i) Notwithstanding anything herein to the contrary,
for purposes of this Agreement, neither the Preliminary Diskette nor
the Diskette shall be deemed to be Computational Materials or ABS Term
Sheets.
Each Underwriter represents that it has in place, and
covenants that it shall maintain, internal controls and procedures which it
reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements of the No-Action Letters with respect to the
generation and use of Computational Materials and ABS Term Sheets in connection
with the offering of the Certificates. Each Underwriter further represents and
warrants that, if and to the extent it provided any prospective investors with
any Computational Materials or ABS Terms Sheets prior to the date hereof in
connection with the offering of the Certificates, all of the conditions set
forth in clauses (a) through (h) above have been satisfied with respect thereto.
4.3 Each Underwriter further agrees that, on or prior to
the sixth day after the Closing Date, it shall provide the Company with a
certificate, substantially in the form of EXHIBIT F attached hereto, setting
forth (i) in the case of each class of Certificates, (a) if less than 10% of the
aggregate actual or notional, as the case may be, principal balance of such
class of Certificates has been sold to the public as of such date, the value
calculated pursuant to clause (b)(iii) of EXHIBIT F hereto, or, (b) if 10% or
more of such class of Certificates has been sold to the public as of such date
but no single price is paid for at least 10% of the aggregate actual or
notional, as the case may be, principal balance of such class of Certificates,
then the weighted average price at which the Certificates of such class were
sold expressed as a percentage of the aggregate actual or notional, as the case
may be, principal balance of such class of Certificates sold, or (c) the first
single price at which at least 10% of the aggregate actual or notional, as the
case may be, principal balance of such class of Certificates was sold to the
public, (ii) the prepayment assumption used in pricing each class of
Certificates, and (iii) such other information as to matters of fact as the
Company may reasonably request to enable it to comply with its reporting
requirements with respect to each class of Certificates to the extent such
information can in the good faith judgment of the Underwriters be determined by
them.
5. AGREEMENTS. The Company agrees with the several Underwriters
that:
5.1 Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Certificates, the Company will
furnish the Representative with a copy of each such proposed amendment or
supplement.
5.2 The Company will cause the Prospectus Supplement to
be transmitted to the Commission for filing pursuant to Rule 424(b) under the
Act by means reasonably calculated to result in filing with the Commission
pursuant to said rule.
5.3 If, during the period after the first date of the
public offering of the Certificates in which a prospectus relating to the
Certificates is required to be delivered under the Act, any event occurs as a
result of which it is necessary to amend or supplement the Prospectus, as then
amended or supplemented, in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to
comply with the Act or the 1933 Act Regulations, the Company promptly will
prepare and furnish, at its own expense, to
9
<PAGE>
the Representative on behalf of the several Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
5.4 The Company will furnish to the Representative,
without charge, a copy of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by an underwriter or dealer
may be required by the Act, as many copies of the Prospectus, any documents
incorporated by reference therein and any amendments and supplements thereto as
the Representative may reasonably request.
5.5 The Company agrees, so long as the Certificates shall
be outstanding, or until such time as the several Underwriters shall cease to
maintain a secondary market in the Certificates, whichever first occurs, to
deliver to the Representative the annual statement as to compliance delivered to
the Trustee pursuant to Section 3.13 of the Pooling and Servicing Agreement and
the annual statement of a firm of independent public accountants furnished to
the Trustee pursuant to Section 3.14 of the Pooling and Servicing Agreement, as
soon as such statements are furnished to the Company.
5.6 The Company will endeavor to arrange for the
qualification of the Certificates for sale under the laws of such jurisdictions
as the Representative may reasonably designate and will maintain such
qualification in effect so long as required for the initial distribution of the
Certificates; PROVIDED, HOWEVER, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
5.7 Except as herein provided, the several Underwriters
shall be responsible for paying all costs and expenses incurred by them,
including the fees and disbursements of their counsel, in connection with the
purchase and sale of the Certificates.
5.8 If, during the period after the Closing Date in which
a prospectus relating to the Certificates is required to be delivered under the
Act, the Company receives notice that a stop order suspending the effectiveness
of the Registration Statement or preventing the offer and sale of the
Certificates is in effect, the Company will advise the Representative of the
issuance of such stop order.
5.9 The Company shall file the Computational Materials
and ABS Term Sheets (if any) provided to it by the Underwriters under Section
4.2(d) with the Commission pursuant to a Current Report on Form 8-K by 10:00
a.m. on the morning the Prospectus is delivered to the Underwriters or, the case
of any Collateral Term Sheet required to be filed prior to such date, by 10:00
a.m. on the second business day following the first day on which such Collateral
Term Sheet has been sent to a prospective investor; PROVIDED, HOWEVER, that
prior to such filing of the Computational Materials and ABS Term Sheets (other
than any Collateral Term Sheets that are not based on the Pool Information) by
the Company, each Underwriter must comply with its obligations pursuant to
Section 4.2 and the Company must receive a letter from Deloitte & Touche LLP,
certified public accountants, satisfactory in form and substance to the Company,
10
<PAGE>
GMACCM and their respective counsels, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by the
Company, as a result of which they determined that all information that is
included in the Computational Materials and ABS Term Sheets (if any) provided by
the Underwriters to the Company for filing on Form 8-K, as provided in Section
4.2 and this Section 5.9, is accurate except as to such matters that are not
deemed by the Company to be material. The foregoing letter shall be at the
expense of the Underwriters. The Company shall file any corrected Computational
Materials described in Section 4.2(f) as soon as practicable following receipt
thereof. The Company also will file with the Commission within fifteen days of
the issuance of the Certificates a Current Report on Form 8-K (for purposes of
filing the Pooling and Servicing Agreement).
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
Underwriters' obligation to purchase the Certificates shall be subject to the
following conditions:
6.1 No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that purpose
shall be pending or, to the knowledge of the Company, threatened by the
Commission; and the Prospectus Supplement shall have been filed or transmitted
for filing, by means reasonably calculated to result in a filing with the
Commission pursuant to Rule 424(b) under the Act.
6.2 Since December 31, 1995, there shall have been no
material adverse change (not in the ordinary course of business) in the
condition of the Company or GMACCM.
6.3 The Company shall have delivered to the Underwriters
a certificate, dated the Closing Date, of the President, a Senior Vice President
or a Vice President of the Company to the effect that the signer of such
certificate has examined this Agreement, the Prospectus, the Pooling and
Servicing Agreement and various other closing documents, and that, to the best
of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the
Company in this Agreement and in the Pooling and Servicing Agreement
are true and correct in all material respects; and
(b) the Company has, in all material respects,
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to the
Closing Date.
6.4 GMACCM shall have delivered to the Underwriters a
certificate, dated the Closing Date, of the President, a Senior Vice President
or a Vice President of GMACCM to the effect that the signer of such certificate
has examined the Pooling and Servicing Agreement and this Agreement and that, to
the best of his or her knowledge after reasonable investigation, the
representations and warranties of GMACCM contained in the Pooling and Servicing
Agreement and in this Agreement are true and correct in all material respects.
6.5 The Underwriters shall have received the opinions of
Thacher Proffitt & Wood, special counsel for the Company and GMACCM, dated the
Closing Date and substantially to the effect set forth in EXHIBITS A-1 and A-2,
and the opinion of Glen Snyder,
11
<PAGE>
Esq., general counsel for the Company and GMACCM, dated the Closing Date and
substantially to the effect set forth in EXHIBIT B.
6.6 The Underwriters shall have received from Brown &
Wood, LLP, counsel for the Underwriters, an opinion dated the Closing Date in
form and substance reasonably satisfactory to the Underwriters.
6.7 The Underwriters shall have received from Deloitte &
Touche LLP, certified public accountants, (a) a letter dated the date hereof and
reasonably satisfactory in form and substance to the Underwriters and their
counsel, to the effect that they have performed certain specified procedures,
all of which have been agreed to by you, as a result of which they determined
that certain information of an accounting, financial or statistical nature set
forth in the Prospectus Supplement under the captions "Description of the
Mortgage Pool", "Description of the Certificates" and "Yield and Maturity
Considerations" agrees with the records of the Company and the Mortgage Loan
Sellers excluding any questions of legal interpretation and (b) the letter
prepared pursuant to Section 5.9 hereof.
6.8 The respective classes of Certificates shall have
been rated as set forth on Schedule I.
6.9 The Underwriters shall have received, with respect to
the Trustee, a favorable opinion of counsel, dated the Closing Date, addressing
the valid existence of such party under the laws of the jurisdiction of its
organization, the due authorization, execution and delivery of the Pooling and
Servicing Agreement by such party and, subject to standard limitations regarding
laws affecting creditors' rights and general principles of equity, the
enforceability of the Pooling and Servicing Agreement against such party. Such
opinion may express its reliance as to factual matters on representations and
warranties made by, and on certificates or other documents furnished by officers
and/or authorized representatives of, parties to this Agreement and the Pooling
and Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the party on behalf of which such opinion is being rendered. Such opinion may be
qualified as an opinion only on the laws of each state in which the writer of
the opinion is admitted to practice law and the federal law of the United
States.
6.10 The Underwriters shall have received from Thacher
Proffitt & Wood, special counsel to the Company, and from Glen Snyder, Esq.,
general counsel to the Company, reliance letters with respect to any opinions
delivered to the rating agencies identified on Schedule I hereto.
6.11 The Underwriters shall have received from Graham &
James, counsel to ING Capital and ContiTrade, and Thacher Proffitt & Wood,
counsel to GMACCM, the opinions substantially to the effect set forth in Exhibit
A-3 of the respective Purchase Agreements.
The Company will furnish the Underwriters with conformed copies of the above
opinions, certificates, letters and documents as they reasonably request.
12
<PAGE>
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 The Company and GMACCM, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act"), from and
against any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Certificates as originally
filed or in any amendment thereof or other filing incorporated by reference
therein, or in the Prospectus or incorporated by reference therein (if used
within the period set forth in Section 5.3 hereof and as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
in the Diskette, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages, or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon any information with respect to which the Underwriters
have agreed to indemnify the Company pursuant to Section 7.2; provided that the
Company and GMACCM will be liable for any such loss, claim, damage or liability
that arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein relating to the Mortgage
Loan Seller Information only if and to the extent that (i) any such untrue
statement is with respect to information regarding the GMACCM Mortgage Loans
contained in the Loan Detail or, to the extent consistent with Annex A to the
Prospectus Supplement, the Diskette, or (ii) any such untrue statement or
alleged untrue statement or omission or alleged omission is with respect to
information regarding any or all of the Mortgage Loan Sellers or any or all of
the Mortgage Loans contained in the Prospectus Supplement under the headings
"Summary of Prospectus Supplement - The Mortgage Asset Pool", "Risk Factors -
The Mortgage Loans" and/or "Description of the Mortgage Asset Pool" or on Annex
A to the Prospectus Supplement (exclusive of the Loan Detail), and such
information represents a restatement or aggregation of information contained in
the Loan Detail, or (iii) any such untrue statement or alleged untrue statement
or omission or alleged omission is with respect to information regarding GMACCM
or the GMACCM Mortgage Loans contained in the Prospectus Supplement under the
headings "Summary of Prospectus Supplement - The Mortgage Asset Pool", "Risk
Factors - The Mortgage Loans" and/or "Description of the Mortgage Asset Pool" or
on Annex A to the Prospectus Supplement (exclusive of the Loan Detail), and such
information does not represent a restatement or aggregation of information
contained in the Loan Detail; and provided that none of the Company, GMACCM or
any Underwriter will be liable in any case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein relating to the Excluded Information.
7.2 Each Underwriter agrees, severally and not jointly to
indemnify and hold harmless the Company, GMACCM, their respective directors or
officers and any person controlling the Company or GMACCM to the same extent as
the indemnity set forth in clause 7.1 above from the Company and GMACCM to the
Underwriters, but only with respect to (i) the Underwriter Information relating
to such Underwriter or supplied by such Underwriter to the Company for inclusion
in the Prospectus Supplement and (ii) the Computational Materials and ABS Term
Sheets delivered to investors in the Certificates by such Underwriter, except to
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<PAGE>
the extent of any errors in the Computational Materials or ABS Term Sheets that
are caused by errors in the Pool Information. In addition, each Underwriter
agrees to indemnify and hold harmless the Company, GMACCM, their respective
directors or officers and any person controlling the Company or GMACCM against
any and all losses, claims, damages, liabilities and expenses (including,
without limitation, reasonable attorneys' fees) caused by, resulting from,
relating to, or based upon any legend regarding original issue discount on any
Certificate resulting from incorrect information provided by such Underwriter in
the certificates described in Section 4.3 hereof.
7.3 In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either Section 7.1 or 7.2, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by the Representative, in the case of
parties indemnified pursuant to Section 7.1, and by the Company or GMACCM, in
the case of parties indemnified pursuant to Section 7.2. The indemnifying party
may, at its option, at any time upon written notice to the indemnified party,
assume the defense of any proceeding and may designate counsel reasonably
satisfactory to the indemnified party in connection therewith provided that the
counsel so designated would have no actual or potential conflict of interest in
connection with such representation. Unless it shall assume the defense of any
proceeding the indemnifying party shall not be liable for any settlement of any
proceeding, effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. If the indemnifying party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the indemnified party or, if such settlement
provides for release of the indemnified party in connection with all matters
relating to the proceeding which have been asserted against the indemnified
party in such proceeding by the other parties to such settlement, without the
consent of the indemnified party.
7.4 If the indemnification provided for in this Section 7
is unavailable to an indemnified party under Section 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities, in
such proportion as is appropriate to
14
<PAGE>
reflect not only the relative benefits received by the Company and GMACCM on the
one hand and the Underwriters on the other from the offering of the Certificates
but also the relative fault of the Company and GMACCM on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company and GMACCM
on the one hand and of either of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or GMACCM or by
an Underwriter, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
7.5 The Company, GMACCM and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by PRO RATA allocation or by any other method of allocation
which does not take account of the considerations referred to in Section 7.4
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in this Section 7 shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim except where the indemnified
party is required to bear such expenses pursuant to Section 7.4; which expenses
the indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party believes that it
will be ultimately obligated to pay such expenses. In the event that any
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the party which
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7.6 The indemnity and contribution agreements contained
in this Section 7 and the representations and warranties of the Company and
GMACCM in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of an Underwriter or any person controlling an Underwriter or by
or on behalf of the Company or GMACCM and their respective directors or officers
or any person controlling the Company or GMACCM and (iii) acceptance of and
payment for any of the Certificates.
8. TERMINATION. This Agreement shall be subject to termination by
notice given to the Company and GMACCM, if the sale of the Certificates provided
for herein is not consummated because of any failure or refusal on the part of
the Company or GMACCM to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or GMACCM shall
be unable to perform their respective obligations under this Agreement. If the
Underwriters terminate this Agreement in accordance with this Section 8, the
Company or GMACCM will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the Underwriters in connection with
the proposed purchase and sale of the Certificates.
15
<PAGE>
9. DEFAULT BY AN UNDERWRITER. If either Underwriter shall fail to
purchase and pay for any of the Certificates agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a default in
the performance of its obligations under this Agreement, the remaining
Underwriter shall be obligated to take up and pay for the Certificates that the
defaulting Underwriter agreed but failed to purchase; provided, however, that in
the event that the initial principal amount of Certificates that the defaulting
Underwriter agreed but failed to purchase shall exceed 10% of the aggregate
principal balance of all of the Certificates set forth in Schedule I hereto, the
remaining Underwriter shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Certificates, and if such
nondefaulting Underwriter does not purchase all of the Certificates, this
Agreement will terminate without liability to the nondefaulting Underwriter, the
Company or GMACCM. In the event of a default by either Underwriter as set forth
in this Section 9, the Closing Date for the Certificates shall be postponed for
such period, not exceeding seven days, as the nondefaulting Underwriter shall
determine in order that the required changes in the Registration Statement, the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and to any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. CERTAIN REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The
respective agreements, representations, warranties, indemnities and other
statements of the Company, GMACCM, the Underwriters or the officers of any of
the Company, GMACCM and the Underwriters, set forth in or made pursuant to this
Agreement, will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or made by or on behalf of the Company or GMACCM or any of their
respective officers, directors or controlling persons, and will survive delivery
of and payment for the Certificates.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of the Underwriters, will be
mailed, delivered or telegraphed and confirmed to the Representative at 85 Broad
Street, New York, New York 10004, Attention: Mr. Steve Stuart; or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at 650
Dresher Road, P.O. Box 1015, Horsham, Pennsylvania 19044-8015, Attention: Ms.
Elisa George (with a copy to GMAC Mortgage Corporation, 3031 West Grand
Boulevard, Detroit, Michigan 48232, Attention: Robert Schwartz, Esq.); or, if
sent to GMACCM, will be mailed, delivered or telegraphed and confirmed to it at
650 Dresher Road, P.O. Box 1015, Horsham, Pennsylvania 19044-8015, Attention:
Ms. Elisa George (with a copy to GMAC Mortgage Corporation, 3031 West Grand
Boulevard, Detroit, Michigan 48232, Attention: Robert Schwartz, Esq.).
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF
THE STATE OF NEW YORK.
16
<PAGE>
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
17
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, GMACCM and the Underwriters.
Very truly yours,
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Elisa George
-------------------------
Name: Elisa George
Title: Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ Elisa George
-------------------------
Name: Elisa George
Title: Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
- ---------------------------------
Name:
Title:
For itself and the other Underwriters named
in Schedule II to the foregoing Agreement.
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the registration statement No. 33-94448 filed by GMAC
Commercial Mortgage Securities, Inc. on Form S-3 and declared effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES:
Mortgage Pass-Through Certificates, Series 1996-C1, Class X-1, Class X-2, Class A-1, Class A-2A, Class A-2B, Class B, Class C, Class
D and Class E
Underwriters: Goldman, Sachs & Co. ("Goldman") and Morgan Stanley & Co. Incorporated ("Morgan Stanley")
Underwriting Agreement, dated as of October 30, 1996
Cut-off Date: November 1, 1996
Allocations: Subject to the terms and conditions of the Underwriting Agreement, each of Goldman and Morgan Stanley shall purchase
Registered Certificates representing 50% of the Class Principal Balance of the Class A-1 Certificates, 50% of the Class Principal
Balance of the Class A-2A Certificates and 50% of the Class Principal Balance of the Class A-2B Certificates; and Goldman shall also
purchase Registered Certificates representing 100% of the Class Principal Balance or Class Notional Amount, as the case may be, of
each other class of Registered Certificates.
Initial Class Principal Balance (or in the case
Class of Class X-1 and Class X-2, Class Notional Initial Purchase
Designation Amount)(1) Pass-through Rate Price(2) Rating(3)
- ----------- ---------- ----------------- -------- ---------
<S> <C> <C> <C> <C>
X-1 $33,475,146 0.9455% 3.5000000% NR/Aaa
X-2 $456,365,528 1.9673% 9.4181646% NR/Aaa
A-1 $33,475,146 5.9125% 100.0000000% AAA/Aaa
A-2A $190,353,000 6.7900% 100.4998000% AAA/Aaa
A-2B $71,963,000 7.2200% 101.5021000% AAA/Aaa
B $31,978,000 7.3400% 101.5156000% AA/Aa1
C $26,268,000 7.4300% 101.4877000% A/Aa3
D $27,409,000 7.7300% 101.5399000% BBB/Baa1
E $13,705,000 7.8600% 97.4512000% BB+/Baa3
- ------------------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the Class Principal Balance or Class Notional Amount, as applicable, of the relevant class of
Certificates to be purchased. In addition, as to each such class of the Certificates (other than the Class A-1
Certificates), the Underwriters will pay GMAC Commercial Mortgage Securities, Inc. accrued interest at the initial
Pass-Through Rate therefor from the Cut-off Date to but not including the Closing Date.
<PAGE>
(3) By each of Standard & Poor's Ratings Services and Moody's Investors Services, Inc., except that the Class X-1 and Class X-2
Certificates will be rated solely by Moody's Investors Services, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Closing Time, Date and Location: 10:00 a.m. New York City time on November 7, 1996 at the offices of Thacher Proffitt & Wood.
- ------------------------------------------------------------------------------------------------------------------------------------
Issuance and delivery of Registered Certificates: Each class of Registered Certificates will be issued as one or more Certificates
registered in the name of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners will hold interests in such
Certificates through the book-entry facilities of The Depository Trust Company in minimum denominations of initial principal balance
or notional amount, as the case may be, of $100,000 (or, in the case of the Class X-1 and Class X-2 Certificates, $2,500,000) and
integral multiples of $1 in excess thereof.
</TABLE>
<PAGE>
EXHIBIT A-1
[Thacher Proffitt & Wood Letterhead]
November 7, 1996
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, Pennsylvania 19044
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036-8293
GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 1996-C1
----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to GMAC Commercial Mortgage Securities, Inc. (the
"Company") and GMAC Commercial Mortgage Corporation ("GMACCM") in connection
with the issuance by the Company of Mortgage Pass-Through Certificates, Series
1996-C1 (the "Certificates"), evidencing undivided interests in a trust fund
(the "Trust Fund") consisting primarily of certain mortgage loans (the "Mortgage
Loans"), pursuant to the Pooling and Servicing Agreement, dated as of November
1, 1996 (the "Pooling and Servicing Agreement"), among the Company as depositor,
GMACCM as master servicer and special servicer and State Street Bank and Trust
Company as trustee (the "Trustee").
Certain of the Mortgage Loans (the "GMACCM Mortgage Loans") were purchased
by the Company from GMACCM pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of October 30, 1996 (the "GMACCM
Mortgage Loan Purchase Agreement"), between the GMACCM and the Company. Certain
of the Mortgage Loans (the "CTS Mortgage Loans") were purchased by the Company
from ContiTrade Services, L.L.C. ("CTS") pursuant to the Mortgage Loan Purchase
Agreement, dated as of October 30, 1996 (the "CTS Mortgage Loan Purchase
Agreement"), between CTS and the Company. Certain of the Mortgage Loans (the
"ING Mortgage Loans") were purchased by the Company from ING (U.S.) Capital
Corporation ("ING Capital") pursuant to the Mortgage Loan Purchase Agreement,
dated as of October 30, 1996 (the "ING Mortgage Loan Purchase Agreement"),
between ING Capital and the Company.
The Company sold the Class X-1, Class X-2, Class A-1, Class A-2A, Class
A-2B, Class B, Class C, Class D and Class E Certificates (collectively, the
"Publicly Offered Certificates") to Goldman, Sachs & Co. ("Goldman")
<PAGE>
and Morgan Stanley & Co. Incorporated ("Morgan") as underwriters pursuant to the
Underwriting Agreement, dated as of October 30, 1996 (the "Underwriting
Agreement"), among the Company, GMACCM, Goldman and Morgan, and sold the Class
F, Class G, Class H, Class R-I, Class R-II and R-III Certificates (collectively,
the "Privately Offered Certificates") to Goldman as initial purchaser pursuant
to the Certificate Purchase Agreement, dated as of October 30, 1996 (the
"Certificate Purchase Agreement"), among the Company, GMACCM and Goldman (the
Certificate Purchase Agreement, the Underwriting Agreement, the GMACCM Mortgage
Loan Purchase Agreement and the Pooling and Servicing Agreement, collectively,
the "Agreements"). Capitalized terms not defined herein have the meanings set
forth in the Agreements.
In connection with rendering this opinion letter, we have examined the
Agreements, the CTS Mortgage Loan Purchase Agreement and the ING Mortgage Loan
Purchase Agreement and such other documents as we have deemed necessary. As to
matters of fact, we have examined and relied upon representations of parties to
the Agreements, the CTS Mortgage Loan Purchase Agreement and the ING Mortgage
Loan Purchase Agreement contained therein and, where we have deemed appropriate,
separate additional representations or certifications of parties to the
Agreements, the CTS Mortgage Loan Purchase Agreement and the ING Mortgage Loan
Purchase Agreement, their respective officers and representatives or public
officials. In rendering this opinion letter, we have also assumed (i) the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures, the legal capacity of natural persons and the conformity to the
originals of all documents submitted to us as copies, (ii) except as expressly
addressed below, the due authorization, execution and delivery, and the
necessary power with respect thereto, and the enforceability of such documents,
(iii) the conformity to the requirements of the Agreements, the CTS Mortgage
Loan Purchase Agreement and the ING Mortgage Loan Purchase Agreement, of the
Mortgage Notes, the Mortgages and other documents delivered or caused to be
delivered to the Trustee by or on behalf of the Company and (iv) that there is
not any other agreement that materially supplements or otherwise modifies the
agreements expressed in the Agreements, the CTS Mortgage Loan Purchase Agreement
and the ING Mortgage Loan Purchase Agreement.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of New York, the corporate law of the
State or Delaware and the federal law of the United States, nor do we express
any opinion concerning the application of the "doing business" laws or the
securities laws of any jurisdiction other than the federal securities laws of
the United States. In rendering the opinion set forth below, as to matters
governed by the laws of the Commonwealth of Pennsylvania or other laws that may
be applicable to the Company and GMACCM, we have relied without independent
investigation on the opinion letter of Glen W. Snyder, Esq., general counsel to
the Company and GMACCM, dated the date hereof, a copy of which is annexed
hereto. In rendering the opinion set forth below, as to matters governed by the
laws of the Commonwealth of Massachusetts, we have relied without independent
investigation on the opinion letter of Peabody & Arnold, counsel to the Trustee,
dated the date hereof, a copy of which is annexed hereto. To the extent that we
have relied on the foregoing opinion letters, the opinions set forth below are
subject to the same assumptions, qualifications, exceptions and other
limitations set forth therein. We do not express any opinion on any issue not
expressly addressed below.
Based upon the foregoing, it is our opinion that:
1. The Registration Statement has become effective under the
Securities Act of 1933, as amended (the "Act"), and, to the best
of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued or threatened under
Section 8(d) of the Act.
2. The Registration Statement, at the Effective Date, and the
Prospectus, as of the date of the Prospectus Supplement, other
than financial or statistical information or Computational
Materials or ABS Term Sheets contained or incorporated by
reference therein, complied as to form in all material respects
with the requirements of the Act and the applicable rules and
regulations thereunder.
3. To our knowledge, there are no material contracts, indentures, or
other documents (not including Computational Materials and ABS
Term Sheets) of a character required to be described or referred
to under either the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto.
4. The Certificates, when duly and validly executed, authenticated
and delivered in accordance with the Pooling and Servicing
Agreement, will be entitled to the benefits of the Pooling and
Servicing Agreement.
<PAGE>
5. The statements contained in the Prospectus and the Private
Placement Memorandum under the headings "ERISA Considerations" and
"Certain Federal Income Tax Consequences", to the extent that they
constitute matters of State of New York or federal law or legal
conclusions with respect thereto, while not purporting to discuss
all possible consequences of investment in the Certificates, are
correct in all material respects with respect to those
consequences or matters that are discussed therein.
6. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and
the Trust Fund created by the Pooling and Servicing Agreement is
not required to be registered under the Investment Company Act of
1940, as amended.
7. No consent, approval, authorization or order of any federal or
State of New York court or governmental agency or body is required
for the consummation by the Company or GMACCM of the transactions
contemplated by the terms of the Agreements, except (a) such as
have been obtained under the Act and (b) such as may be required
under the blue sky laws of any jurisdiction in connection with the
purchase and the offer and sale of the Underwritten Certificates
by the Underwriters, as to which we express no opinion.
8. Neither the issuance and the sale of the Certificates pursuant to
the Agreements, nor the consummation of any other of the
transactions contemplated by, or the fulfillment by the Company or
GMACCM of the terms of the Agreements, will result in a breach of
any term or provision of any federal or State of New York statute
or regulation or, to the best of our knowledge, conflict with,
result in a breach, violation or acceleration of or constitute a
default under any order of any federal or State of New York court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company or GMACCM.
9. Each of the Agreements has been duly and validly authorized,
executed and delivered by the Company and GMACCM and, upon due
authorization, execution and delivery by all other parties
thereto, each of the Agreements will constitute a valid, legal and
binding agreement of the Company and GMACCM, enforceable against
the Company and GMACCM in accordance with its terms, except as
enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other
similar laws affecting the rights of creditors, (ii) general
principles of equity, whether enforcement is sought in a
proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of the
provisions of any of the Agreements which purport to provide
indemnification with respect to securities law violations.
10. Assuming due authorization, execution and delivery thereof by all
parties thereto, the Pooling and Servicing Agreement will
constitute a valid, legal and binding agreement of the Trustee,
enforceable against the Trustee in accordance with its terms,
except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization
or other similar laws affecting the rights of creditors, (ii)
general principles of equity, whether enforcement is sought in a
proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of the
provisions of any of the Agreements which purport to provide
indemnification with respect to securities law violations.
11. As described in the Prospectus and the Private Placement
Memorandum, and assuming compliance with all the provisions of the
Pooling and Servicing Agreement, for federal income tax purposes,
each of REMIC I, REMIC II and REMIC III will qualify as a real
estate mortgage investment conduit (a "REMIC") within the meaning
of Sections 860A through 860G (the "REMIC Provisions") of the
Internal Revenue Code of 1986 (the "Code") in effect on the date
hereof, and (i) the Class R-I Certificates will be the sole class
of "residual interests" in REMIC I, (ii) the Class R-II
Certificates will be the sole class of "residual interests" in
REMIC II, (iii) the REMIC Regular Certificates will be "regular
interests" in REMIC III, and (iv) the Class R-III Certificates
will be the sole class of "residual interests" in REMIC III.
12. Assuming compliance with the provisions of the Pooling and
Servicing Agreement, for City and State of New York income and
corporation franchise tax purposes, each of REMIC I, REMIC II and
REMIC III will be classified as a REMIC and not a corporation,
partnership or trust, in conformity with the federal income tax
treatment of each such REMIC. Accordingly, each of REMIC I, REMIC
<PAGE>
II and REMIC III will be exempt from all City and State of New
York taxation imposed on its income, franchise or capital stock,
and its assets will not be included in the calculation of any
franchise tax liability.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of this
opinion letter may not be furnished to any other person or entity, nor may any
portion of this opinion letter be quoted, circulated or referred to in any other
document.
Very truly yours,
THACHER PROFFITT & WOOD
By
<PAGE>
EXHIBIT A-2
[Thacher Proffitt & Wood Letterhead]
November 7, 1996
GMAC Commercial Mortgage Securities, Inc.
650 Dresher Road
Horsham, Pennsylvania 19044
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Morgan Stanley & Co., Incorporated
1585 Broadway
New York, New York 10036-8293
GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 1996-C1
----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to GMAC Commercial Mortgage Securities, Inc.
(the "Company") and GMAC Commercial Mortgage Corporation ("GMACCM") in
connection with the issuance by the Company of Mortgage Pass-Through
Certificates, Series 1996-C1 (the "Certificates"), evidencing undivided
interests in a trust fund (the "Trust Fund") consisting primarily of certain
mortgage loans (the "Mortgage Loans"), pursuant to the Pooling and Servicing
Agreement, dated as of November 1, 1996 (the "Pooling and Servicing Agreement"),
among the Company as depositor, GMACCM as master servicer and special servicer
and State Street Bank and Trust Company as trustee (the "Trustee").
Certain of the Mortgage Loans (the "GMACCM Mortgage Loans") were
purchased by the Company from GMACCM pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of October 30, 1996
(the "GMACCM Mortgage Loan Purchase Agreement"), between the GMACCM and the
Company. Certain of the Mortgage Loans (the "CTS Mortgage Loans") were purchased
by the Company from ContiTrade Services, L.L.C. ("CTS") pursuant to the Mortgage
Loan Purchase Agreement, dated as of October 30, 1996 (the "CTS Mortgage Loan
Purchase Agreement"), between CTS and the Company. Certain of the Mortgage Loans
(the "ING Mortgage Loans") were purchased by the Company from ING (U.S.) Capital
Corporation ("ING Capital") pursuant to the Mortgage Loan Purchase Agreement,
dated as of October 30, 1996 (the "ING Mortgage Loan Purchase Agreement"),
between ING Capital and the Company (GMACCM, CTS and ING Capital, collectively,
the "Mortgage Loan Sellers").
The Company sold the Class X-1, Class X-2, Class A-1, Class A-2A, Class
A-2B, Class B, Class C, Class D and Class E Certificates (collectively, the
"Publicly Offered Certificates") to Goldman, Sachs & Co. ("Goldman")
<PAGE>
and Morgan Stanley & Co. Incorporated ("Morgan") as underwriters pursuant to the
Underwriting Agreement, dated as of October 30, 1996 (the "Underwriting
Agreement"), among the Company, GMACCM, Goldman and Morgan, and sold the Class
F, Class G, Class H, Class R-I, Class R-II and Class R-III Certificates
(collectively, the "Privately Offered Certificates") to Goldman as initial
purchaser pursuant to the Certificate Purchase Agreement, dated as of October
30, 1996 (the "Certificate Purchase Agreement"), among the Company, GMACCM and
Goldman (the Certificate Purchase Agreement, the Underwriting Agreement, the
GMACCM Mortgage Loan Purchase Agreement, the CTS Mortgage Loan Purchase
Agreement, the ING Mortgage Loan Purchase Agreement and the Pooling and
Servicing Agreement, collectively, the "Agreements"). Capitalized terms not
defined herein have the meanings set forth in the Agreements.
Because of the wholly or partially non-legal character of many
determinations involved in the preparation of the Registration Statement, the
Prospectus and the Private Placement Memorandum, we are not advising herein with
respect to and do not assume any responsibility herein for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Private Placement Memorandum and make no
representation herein that we have otherwise independently verified the
accuracy, completeness or fairness of such statements. In particular and without
limiting the foregoing, we express no advice as to any such accounting,
financial or statistical information contained in the Registration Statement,
the Prospectus or the Private Placement Memorandum, or as to any Computational
Materials or ABS Term Sheets, and we have not examined any accounting, financial
or statistical records from which the information and statements included
therein were derived. In addition, with limited exception, we have not reviewed
any of the Mortgage Notes, Mortgages or other documents in the Mortgage Files or
made any inquiry of any originator of any Mortgage Loan other than the Mortgage
Loan Sellers.
We do not act as general counsel to the Company or GMACCM. In our
representation of the Company and GMACCM in connection with the transactions
contemplated by the Agreements, however, we met in conferences and participated
in telephone conversations with representatives of parties to the Agreements,
Goldman and Morgan and their respective counsel in addition to us. During those
conferences and telephone conversations, the contents of the Registration
Statement, the Prospectus and the Private Placement Memorandum and related
matters were discussed. With respect to the accuracy, completeness and fairness
of the information relating to GMACCM, the other Mortgage Loan Sellers, and the
Trustee contained in the Prospectus and the Private Placement Memorandum under
the captions "Description of the Mortgage Pool--The Mortgage Loan Sellers",
"Servicing of the Mortgage Loans--The Servicer" and "Description of the
Certificates--The Trustee", we have relied exclusively on those conferences and
telephone conversations and that no information inconsistent therewith has come
to our attention. In addition, we have examined the Agreements and reviewed
various opinions rendered and certificates delivered in connection with the
issuance of the Certificates. We have not otherwise undertaken any procedures
that were intended or likely to elicit information concerning the accuracy,
completeness or fairness of the statements made in the Registration Statement,
the Prospectus or the Memorandum. We have assumed that there is not and will not
be any other agreement that materially supplements or otherwise modifies the
agreements expressed in the Agreements.
Based upon and subject to the foregoing, and further based upon our
understanding of applicable law and the experience we have gained in our
practice thereunder, we hereby advise you that no information has come to our
attention that causes us to believe that (i) the Prospectus, as of the date of
the Prospectus Supplement or as of the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (ii) the Private
Placement Memorandum (exclusive of the information under the headings "Risk
Factors -- The Mortgage Loans" and "Description of the Mortgage Pool" or
elsewhere in the Private Placement Memorandum with respect to the subjects
discussed under such headings), as of the date thereof or hereof, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
This letter is provided for the sole benefit of each addressee hereof,
and no other person or entity is entitled to rely hereon. Copies of this letter
may not be furnished to any other person or entity, nor may any portion of this
letter be quoted, circulated or referred to in any other document.
Very truly yours,
THACHER PROFFITT & WOOD
<PAGE>
By
<PAGE>
EXHIBIT B
[GMAC Mortgage Corporation LETTERHEAD]
November 7, 1996
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, Pennsylvania 19044
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Standard & Poor's Ratings Services,
a Division of the McGraw-Hill Companies, Inc.
26 Broadway
New York, New York 10004
Moody's Investors Service, Inc.
99 Church Street, 2nd Floor
New York, New York 10007
State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1996-C1
--------------------------------------------------
Ladies and Gentlemen:
I am General Counsel to GMAC Commercial Mortgage Securities, Inc. (the
"Company") and GMAC Commercial Mortgage Corporation ("GMACCM"). In that
capacity, I am familiar with the issuance of certain Mortgage Pass-Through
Certificates, Series 1996-C1 (the "Certificates"), evidencing undivided
interests in a trust fund (the "Trust Fund") consisting primarily of certain
mortgage loans (the "Mortgage Loans"), pursuant to a Pooling and Servicing
Agreement, dated as of November 1, 1996 (the "Pooling and Servicing Agreement"),
among the Company as depositor, GMACCM as master servicer and special servicer
and State Street Bank and Trust Company as trustee (the "Trustee").
Certain of the Mortgage Loans were purchased by the Company from GMACCM
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of October 30, 1996 (the "Mortgage Loan Purchase
Agreement"), between GMACCM and the Company. Certain of the Mortgage Loans were
purchased by the Company from ContiTrade Services, L.L.C. ("ContiTrade"),
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of October 30, 1996 (the "ContiTrade Mortgage Loan Purchase
Agreement") between ContiTrade and the Company. Certain of the Mortgage Loans
were purchased by the Company from Internationale Nederlanden (U.S.) Capital
Corporation ("ING Capital"), pursuant to, and for the consideration described
in, the Mortgage Loan Purchase Agreement, dated as of October 30, 1996 (the "ING
Capital Mortgage Loan Purchase Agreement", and collectively with the GMACCM
Mortgage Loan Purchase
<PAGE>
Agreement and the ContiTrade Mortgage Loan Purchase Agreement, the "Mortgage
Loan Purchase Agreements") between ING Capital and the Company.
The Company has sold the Class X-1, Class X-2, Class A-1, Class A-2A,
Class A-2B, Class B, Class C, Class D and Class E Certificates (collectively,
the "Publicly Offered Certificates") to Goldman, Sachs & Co. ("Goldman") and
Morgan Stanley & Co. Incorporated ("Morgan") as underwriters pursuant to the
Underwriting Agreement, dated as of October 30, 1996 (the "Underwriting
Agreement"), among the Company, GMACCM, Goldman and Morgan, and sold the Class
F, Class G, Class H, Class R-I, Class R-II and R-III Certificates (collectively,
the "Privately Offered Certificates") to Goldman as initial purchaser pursuant
to the Certificate Purchase Agreement, dated as of October 30, 1996 (the
"Certificate Purchase Agreement"), among the Company, GMACCM and Goldman (the
Certificate Purchase Agreement, the Underwriting Agreement, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements, collectively, the
"Agreements"). Capitalized terms not defined herein have the meanings set forth
in the Agreements. This opinion is rendered pursuant to Section 6.5 of the
Underwriting Agreement and Section 6(d) of the Certificate Purchase Agreement.
In connection with rendering this opinion letter, I have examined the
Agreements and such other records and other documents as I have deemed
necessary. I have further assumed that there is not and will not be any other
agreement that materially supplements or otherwise modifies the agreements
expressed in the Agreements. As to matters of fact, I have examined and relied
upon representations of parties contained in the Agreements and, where I have
deemed appropriate, representations and certifications of officers of the
Company, GMACCM, the Trustee, other transaction participants or public
officials. I have assumed the authenticity of all documents submitted to me as
originals, the genuineness of all signatures other than officers of the Company
and GMACCM, the legal capacity of natural persons other than officers of the
Company and GMACCM and the conformity to the originals of all documents
submitted to me as copies. I have assumed that all parties, except for the
Company and GMACCM, had the corporate power and authority to enter into and
perform all obligations thereunder. As to such parties, I also have assumed the
due authorization by all requisite corporate action, the due execution and
delivery and the enforceability of such documents. I have further assumed the
conformity of the Mortgage Loans and related documents to the requirements of
the Agreements.
In rendering this opinion letter, I do not express any opinion
concerning any law other than the law of the Commonwealth of Pennsylvania, the
General Corporation Law of the State of Delaware and the federal law of the
United States, and I do not express any opinion concerning the application of
the "doing business" laws or the securities laws of any jurisdiction other than
the federal securities laws of the United States. To the extent that any of the
matters upon which I am opining herein are governed by laws ("Other Laws") other
than the laws identified in the preceding sentence, I have assumed with your
permission and without independent verification or investigation as to the
reasonableness of such assumption, that such Other Laws and judicial
interpretation thereof do not vary in any respect material to this opinion from
the corresponding laws of the Commonwealth of Pennsylvania and judicial
interpretations thereof. I do not express any opinion on any issue not expressly
addressed below.
Based upon the foregoing, I am of the opinion that:
1. The Company is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, and has
the requisite power and authority, corporate or other, to own its properties and
conduct its business, as presently conducted by it, and to enter into and
perform its obligations under the Agreements.
2. GMACCM is duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of California, and has the
requisite power and authority, corporate or other, to own its properties and
conduct its business, as presently conducted by it, and to enter into and
perform its obligations under the Agreements.
<PAGE>
3. Each of the Agreements has been duly and validly authorized,
executed and delivered by the Company and GMACCM and, upon due authorization,
execution and delivery by the other parties thereto, will constitute the valid,
legal and binding agreements of GMACCM and the Company, enforceable against
GMACCM and the Company in accordance with their terms, except as enforceability
may be limited by (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the rights of
creditors, (ii) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of the Agreements
which purport to provide indemnification with respect to securities law
violations.
4. No consent, approval, authorization or order of the Commonwealth of
Pennsylvania, State of Delaware, State of California or federal court or
governmental agency or body is required for the consummation by GMACCM or the
Company of the transactions contemplated by the terms of the Agreements, except
for those consents, approvals, authorizations or orders which previously have
been obtained.
5. Neither the sale, issuance and delivery of the Certificates as
provided in the Agreements nor the consummation of any other of the transactions
contemplated by, or the fulfillment by the Company or GMACCM of any other of the
terms of, the Agreements, will result in a breach of any term or provision of
the charter or bylaws of GMACCM or the Company or any Commonwealth of
Pennsylvania, State of Delaware, State of California or federal statute or
regulation or conflict with, result in a breach, violation or acceleration of or
constitute a default under the terms of any indenture or other material
agreement or instrument to which GMACCM or the Company is a party or by which it
is bound or any order or regulation of any Commonwealth of Pennsylvania or
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over GMACCM or the Company.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity, except Thacher Proffitt & Wood, is
entitled to rely hereon without my prior written consent. Copies of this opinion
letter may not be furnished to any other person or entity, nor may any portion
of this opinion letter be quoted, circulated or referred to in any other
document without my prior written consent.
Very truly yours,
Glen W. Snyder
General Counsel
<PAGE>
EXHIBIT C
Excluded Information of Prospectus Supplement
(All text and tables between brackets are excluded)
<PAGE>
[The following tables indicate the percentage of the initial
Certificate Balance of each Class of Offered Certificates (other than the Class
X Certificates) that would be outstanding after each of the dates shown at
various CPRs and the corresponding weighted average life of each such Class of
Certificates. The tables have been prepared on the basis of the following
assumptions (collectively, the "MATURITY ASSUMPTIONS"): (i) the Initial Group 1
Balance is approximately $33,475,147 and the Initial Group 2 Balance is
approximately $423,347,204, (ii) the initial Certificate Balances and Notional
Amounts, as the case may be, and the Pass-Through Rates for the respective
Classes of Offered Certificates are as set forth or otherwise described herein,
(iii) the scheduled Monthly Payments for each Mortgage Loan are, in the case of
each ARM Loan, equal to the Monthly Payment in effect as of the Cut-Off Date
until the next payment adjustment is scheduled to occur and thereafter is based
on such Mortgage Loan's Cut-off Date Balance and stated remaining amortization
term as of the Cut-off Date and the value of Six-Month LIBOR described in clause
(v) below, plus the related Gross Margin, subject to the respective minimum and
maximum Mortgage Rates, and, in the case of each other Mortgage Loan, based on
such Mortgage Loan's Cut-off Date Balance, calculated remaining amortization
terms (or, in the case of the Cash-Flow Amortization Loans, a 25-year
amortization term) and the Mortgage Rate in effect as of the Cut-off Date (as
such may be increased in the case of one Mortgage Loan), (iv) all Monthly
Payments are assumed to be due on the first day of each month and, with respect
to the Step-Down Loans, the Mortgage Rates during the interest-only periods are
assumed to be equal to a rate that would produce an amount of interest equal to
its Monthly Payment, (v) Six-Month LIBOR remains constant at 5.5625% per annum
(the "BASE LIBOR ASSUMPTION"), and for purpose of two of the Extension Loans (as
defined below), the five year Treasury is assumed to be 6.12% per annum, (vi)
there are no delinquencies or losses in respect of the Mortgage Loans, there are
no extensions of maturity in respect of the Mortgage Loans (except in those
cases where the borrower may require, subject to the satisfaction of certain
conditions, that an extension occur, in which event the term of the related
Mortgage Loan is extended to the maximum extent permitted under the related
Mortgage Note (the "EXTENSION LOANS")), there are no Appraisal Reduction Amounts
with respect to the Mortgage Loans and there are no casualties or condemnations
affecting the Mortgaged Properties, (vii) scheduled Monthly Payments on the
Mortgage Loans are timely received, and prepayments are made on each of the
Mortgage Loans at the indicated CPRs set forth in the table (without regard to
any limitations in such Mortgage Loans on partial voluntary principal
prepayments) (except to the extent modified below by the assumption numbered
(xv)) and in the case of Mortgage Loans with an extension option, no prepayment
occurs during the option period, (viii) all Mortgage Loans accrue interest on
the basis of a 360-day year consisting of twelve 30-day months, (ix) neither the
Servicer nor the Depositor exercises its right of optional termination described
herein, (x) no Mortgage Loan is required to be repurchased by a Mortgage Loan
Seller, (xi) no Prepayment Interest Shortfalls are incurred and no Prepayment
Premiums are collected, (xii) there are no Additional Trust Fund Expenses,
(xiii) distributions on the Certificates are made on the 15th day of each month,
commencing in December 1996, (xiv) the Certificates are issued on November 7,
1996, (xv) WHEN SPECIFICALLY INDICATED IN A PARTICULAR TABLE, no prepayments are
received as to any Mortgage Loan during such Mortgage Loan's prepayment lock-out
period ("LOP"), if any, or yield maintenance period ("YMP"), if any, (xvi) the
prepayment provisions for each Mortgage Loan are assumed to begin on the first
payment date of such Mortgage Loan, and (xvii) the open prepayment period, if
any, is assumed to begin on the first day of the respective month prior to the
maturity date. To the extent that the Mortgage Loans have characteristics that
differ from those assumed in preparing the tables set forth below, the Class
A-1, Class A-2A, Class A-2B, Class B, Class C, Class D and/or Class E
Certificates may mature earlier or later than indicated by the tables. It is
highly unlikely that the Mortgage Loans will prepay in accordance with the
Maturity Assumptions at any constant rate until maturity or that all the
Mortgage Loans will prepay in accordance with the Maturity Assumptions at the
same rate. In addition, variations in the actual prepayment experience and the
balance of the Mortgage Loans that prepay may increase or decrease the
percentages of initial Certificate Balances (and weighted average lives) shown
in the following tables. Such variations may occur even if the average
prepayment experience of the Mortgage Loans were to equal any of the specified
CPR percentages.
Investors are urged to conduct their own analyses of the rates at which
the Mortgage Loans may be expected to prepay.]
<PAGE>
[Based on the Maturity Assumptions, the following tables indicate the
resulting weighted average lives of the Class A-1, Class A-2A, Class A-2B, Class
B, Class C, Class D and Class E Certificates and set forth the percentage of the
initial Certificate Balance of each such Class of Certificates that would be
outstanding after each of the dates shown under the applicable assumptions at
the indicated CPRs.]
<PAGE>
<TABLE>
[PERCENTAGES OF THE INITIAL CERTIFICATE BALANCE OF THE CLASS A-1
CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH
NO PREPAYMENTS LOCKED OUT LOP AND YMP, THEN THE FOLLOWING CPR
Prepayment Assumption (CPR) Prepayment Assumption (CPR)
--------------------------- ---------------------------
DATE 0% 2% 4% 6% 8% 10% 15% 0% 2% 4% 6% 8% 10% 15%
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Delivery Date 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100%
November 1997 99 97 95 93 91 89 84 99 97 96 94 92 90 86
November 1998 98 94 90 87 83 79 71 98 94 91 88 85 81 74
November 1999 97 91 86 80 75 71 59 97 92 87 82 78 73 64
November 2000 95 88 81 75 68 63 50 95 89 83 77 71 66 55
November 2001 94 85 77 69 62 56 4 94 86 79 72 66 60 48
November 2002 93 82 72 64 56 39 0 93 83 75 67 60 54 41
November 2003 83 72 63 23 0 0 0 83 73 63 55 48 41 28
November 2004 2 2 0 0 0 0 0 2 2 2 2 2 2 2
November 2005 2 2 0 0 0 0 0 2 2 2 2 2 2 2
November 2006 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life (years) 7.5 7.0 6.4 5.5 5.0 4.4 3.4 7.5 7.0 6.6 6.1 5.8 5.4 4.6
</TABLE>
<TABLE>
PERCENTAGES OF THE INITIAL CERTIFICATE BALANCE OF THE CLASS A-2A
CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH
NO PREPAYMENTS LOCKED OUT LOP AND YMP, THEN THE FOLLOWING CPR
Prepayment Assumption (CPR) Prepayment Assumption (CPR)
--------------------------- ---------------------------
DATE 0% 2% 4% 6% 8% 10% 15% 0% 2% 4% 6% 8% 10% 15%
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Delivery Date 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100%
November 1997 98 93 89 85 80 76 65 98 98 98 98 98 98 98
November 1998 95 86 78 70 62 54 35 95 95 95 95 95 95 95
November 1999 92 79 67 56 45 34 9 92 92 92 92 91 91 91
November 2000 83 68 52 38 25 13 0 83 83 82 82 81 81 79
November 2001 53 36 21 7 0 0 0 53 53 52 51 51 50 49
November 2002 33 16 0 0 0 0 0 33 32 32 31 30 29 27
November 2003 0 0 0 0 0 0 0 0 0 0 0 0 0 0
November 2004 0 0 0 0 0 0 0 0 0 0 0 0 0 0
November 2005 0 0 0 0 0 0 0 0 0 0 0 0 0 0
November 2006 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life (years) 5.2 4.4 3.7 3.1 2.7 2.3 1.6 5.2 5.2 5.2 5.1 5.1 5.1 5.0]
</TABLE>
<PAGE>
<TABLE>
[PERCENTAGES OF THE INITIAL CERTIFICATE BALANCE OF THE CLASS A-2B
CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH
NO PREPAYMENTS LOCKED OUT LOP AND YMP, THEN THE FOLLOWING CPR
Prepayment Assumption (CPR) Prepayment Assumption (CPR)
--------------------------- ---------------------------
DATE 0% 2% 4% 6% 8% 10% 15% 0% 2% 4% 6% 8% 10% 15%
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Delivery Date 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100%
November 1997 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 1998 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 1999 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2000 100 100 100 100 100 100 61 100 100 100 100 100 100 100
November 2001 100 100 100 100 82 51 0 100 100 100 100 100 100 100
November 2002 100 100 99 60 26 0 0 100 100 100 100 100 100 100
November 2003 99 56 19 0 0 0 0 99 97 96 95 94 93 91
November 2004 80 35 0 0 0 0 0 80 79 77 76 74 73 70
November 2005 61 14 0 0 0 0 0 61 59 56 54 52 50 45
November 2006 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life (years) 8.8 7.7 6.7 6.2 5.7 5.2 4.2 8.8 8.7 8.7 8.6 8.6 8.6 8.5
</TABLE>
<TABLE>
PERCENTAGES OF THE INITIAL CERTIFICATE BALANCE OF THE CLASS B
CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH
NO PREPAYMENTS LOCKED OUT LOP AND YMP, THEN THE FOLLOWING CPR
Prepayment Assumption (CPR) Prepayment Assumption (CPR)
--------------------------- ---------------------------
DATE 0% 2% 4% 6% 8% 10% 15% 0% 2% 4% 6% 8% 10% 15%
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Delivery Date 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100%
November 1997 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 1998 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 1999 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2000 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2001 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2002 100 100 100 100 100 100 0 100 100 100 100 100 100 100
November 2003 100 100 100 100 50 0 0 100 100 100 100 100 100 100
November 2004 100 100 92 15 0 0 0 100 100 100 100 100 100 100
November 2005 100 100 42 0 0 0 0 100 100 100 100 100 100 100
November 2006 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life (years) 9.4 9.2 8.8 7.9 7.2 6.7 5.5 9.4 9.4 9.4 9.4 9.4 9.4 9.3]
</TABLE>
<PAGE>
<TABLE>
[PERCENTAGES OF THE INITIAL CERTIFICATE BALANCE OF THE CLASS C
CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH
NO PREPAYMENTS LOCKED OUT LOP AND YMP, THEN THE FOLLOWING CPR
Prepayment Assumption (CPR) Prepayment Assumption (CPR)
--------------------------- ---------------------------
DATE 0% 2% 4% 6% 8% 10% 15% 0% 2% 4% 6% 8% 10% 15%
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Delivery Date 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100%
November 1997 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 1998 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 1999 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2000 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2001 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2002 100 100 100 100 100 100 79 100 100 100 100 100 100 100
November 2003 100 100 100 100 100 82 0 100 100 100 100 100 100 100
November 2004 100 100 100 100 38 0 0 100 100 100 100 100 100 100
November 2005 100 100 100 58 0 0 0 100 100 100 100 100 100 100
November 2006 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life (years) 9.5 9.4 9.3 9.0 8.1 7.5 6.3 9.5 9.5 9.5 9.5 9.5 9.5 9.5
</TABLE>
<TABLE>
PERCENTAGES OF THE INITIAL CERTIFICATE BALANCE OF THE CLASS D
CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH
NO PREPAYMENTS LOCKED OUT LOP AND YMP, THEN THE FOLLOWING CPR
Prepayment Assumption (CPR) Prepayment Assumption (CPR)
--------------------------- ---------------------------
DATE 0% 2% 4% 6% 8% 10% 15% 0% 2% 4% 6% 8% 10% 15%
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Delivery Date 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100%
November 1997 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 1998 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 1999 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2000 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2001 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2002 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2003 100 100 100 100 100 100 29 100 100 100 100 100 100 100
November 2004 100 100 100 100 100 70 0 100 100 100 100 100 100 100
November 2005 100 100 100 100 80 16 0 100 100 100 100 100 100 100
November 2006 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life (years) 9.7 9.6 9.5 9.3 9.1 8.5 7.0 9.7 9.7 9.7 9.7 9.7 9.7 9.7]
</TABLE>
<PAGE>
<TABLE>
[PERCENTAGES OF THE INITIAL CERTIFICATE BALANCE OF THE CLASS E
CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH
NO PREPAYMENTS LOCKED OUT LOP AND YMP, THEN THE FOLLOWING CPR
Prepayment Assumption (CPR) Prepayment Assumption (CPR)
--------------------------- ---------------------------
DATE 0% 2% 4% 6% 8% 10% 15% 0% 2% 4% 6% 8% 10% 15%
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Delivery Date 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100%
November 1997 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 1998 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 1999 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2000 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2001 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2002 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2003 100 100 100 100 100 100 100 100 100 100 100 100 100 100
November 2004 100 100 100 100 100 100 0 100 100 100 100 100 100 100
November 2005 100 100 100 100 100 100 0 100 100 100 100 100 100 100
November 2006 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life (years) 9.8 9.8 9.6 9.5 9.4 9.2 7.8 9.8 9.8 9.8 9.8 9.8 9.8 9.8]
</TABLE>
<PAGE>
[CERTAIN PRICE/YIELD TABLES
The tables set forth below show the corporate bond equivalent ("CBE")
yield, modified duration, weighted average life, first Distribution Date on
which principal is to be paid ("FIRST PRINCIPAL DISTRIBUTION DATE") and final
Distribution Date ("LAST PRINCIPAL DISTRIBUTION DATE") with respect to each
Class of Offered Certificates (other than the Class X Certificates) under the
Maturity Assumptions.
The yields set forth in the following tables were calculated by
determining the monthly discount rates which, when applied to the assumed stream
of cash flows to be paid on each Class of Offered Certificates (other than the
Class X Certificates), would cause the discounted present value of such assumed
stream of cash flows as of November 7, 1996 to equal the assumed purchase
prices, plus (except in the case of the Class A-1 Certificates) accrued interest
at the applicable Pass-Through Rate as stated on the cover hereof from and
including the Cut-off Date to but excluding the Delivery Date, and converting
such monthly rates to semi-annual corporate bond equivalent rates. Such
calculation does not take into account variations that may occur in the interest
rates at which investors may be able to reinvest funds received by them as
reductions of the Certificate Balances of such Classes of Offered Certificates
and consequently does not purport to reflect the return on any investment in
such Classes of Offered Certificates when such reinvestment rates are
considered. For purposes of these tables, "modified duration" has been
calculated using the modified Macaulay Duration as specified in the "PSA
Standard Formulas." The Macaulay Duration is calculated as the present value
weighted average time to receive future payments of principal and interest, and
the PSA Standards Formula modified duration is calculated by dividing the
Macaulay Duration by the appropriate semi-annual compounding factor. The
duration of a security may be calculated according to various methodologies;
accordingly, no representation is made by the Depositor or any other person that
the "modified duration" approach used herein is appropriate. Duration, like
yield, will be affected by the prepayment rate of the Mortgage Loans and
extensions in respect of Balloon Payments that actually occur during the life of
the Offered Certificates and by the actual performance of the Mortgage Loans,
all of which may differ, and may differ significantly, from the assumptions used
in preparing the tables below. The modified duration shown in the following
tables, in each case, relates to the yield shown immediately above such modified
duration number. Purchase prices are expressed in 32nds as a percentage of the
initial Certificate Balance of the specified Class (i.e., 99.24 means 99%).]
<PAGE>
<TABLE>
[PRE-TAX YIELD TO MATURITY (CBE), MODIFIED DURATION, WEIGHTED AVERAGE LIFE, FIRST PRINCIPAL DISTRIBUTION DATE AND
LAST PRINCIPAL DISTRIBUTION DATE FOR THE CLASS A-1 CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
NO PREPAYMENTS LOCKED OUT
Prepayment Assumption (CPR)
- ----------------------------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
99.24 6.028% 6.032% 6.035% 6.042% 6.047% 6.054% 6.072%
Modified duration
(years) 5.86 5.46 5.08 4.45 4.09 3.68 2.90
99.25 6.023% 6.026% 6.029% 6.035% 6.039% 6.045% 6.061%
99.26 6.018 6.020 6.023 6.028 6.032 6.037 6.050
99.27 6.012 6.014 6.016 6.021 6.024 6.028 6.040
99.28 6.007 6.009 6.010 6.014 6.016 6.020 6.029
Modified duration
(years) 5.86 5.47 5.09 4.45 4.09 3.68 2.90
99.29 6.002% 6.003% 6.004% 6.007% 6.009% 6.011% 6.018%
99.30 5.996 5.997 5.998 6.000 6.001 6.003 6.007
99.31 5.991 5.991 5.992 5.993 5.993 5.994 5.996
100.00 5.986 5.986 5.986 5.986 5.986 5.986 5.986
Modified duration
(years) 5.86 5.47 5.09 4.46 4.09 3.68 2.90
100.01 5.980% 5.980% 5.980% 5.979% 5.978% 5.977% 5.975%
100.02 5.975 5.974 5.973 5.972 5.970 5.969 5.964
100.03 5.970 5.969 5.967 5.965 5.963 5.960 5.953
100.04 5.964 5.963 5.961 5.958 5.955 5.952 5.943
Modified duration
(years) 5.87 5.47 5.09 4.46 4.09 3.69 2.90
100.05 5.959% 5.957% 5.955% 5.951% 5.948% 5.943% 5.932%
100.06 5.954 5.951 5.949 5.944 5.940 5.935 5.921
100.07 5.948 5.946 5.943 5.937 5.932 5.926 5.910
100.08 5.943 5.940 5.937 5.930 5.925 5.918 5.900
Modified duration
(years) 5.87 5.47 5.09 4.46 4.10 3.69 2.90
Weighted Average
Life (years) 7.50 6.95 6.42 5.49 4.98 4.42 3.37
First Principal
Distribution
Date 12/15/96 12/15/96 12/15/96 12/15/96 12/15/9612/15/96 12/15/96
Last Principal
Distribution
Date 02/15/06 01/15/06 10/15/04 04/15/04 09/15/0303/15/03 12/15/01
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN
THE FOLLOWING CPR
Prepayment Assumption (CPR)
- ----------------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
99.24 6.028% 6.031% 6.034% 6.037% 6.040% 6.043% 6.052%
Modified duration
(years) 5.86 5.50 5.18 4.87 4.59 4.33 3.77
99.25 6.023 6.026 6.028 6.031 6.033 6.036 6.044
99.26 6.018 6.020 6.022 6.024 6.027 6.029 6.035
99.27 6.012 6.014 6.016 6.018 6.020 6.022 6.027
99.28 6.007 6.008 6.010 6.011 6.013 6.015 6.019
Modified duration
(years) 5.86 5.51 5.18 4.87 4.59 4.34 3.77
99.29 6.002% 6.003% 6.004% 6.005% 6.006% 6.007% 6.011%
99.30 5.996 5.997 5.998 5.999 5.999 6.000 6.002
99.31 5.991 5.991 5.992 5.992 5.993 5.993 5.994
100.00 5.986 5.986 5.986 5.986 5.986 5.986 5.986
Modified duration
(years) 5.86 5.51 5.18 4.88 4.60 4.34 3.78
100.01 5.980% 5.980% 5.980% 5.979% 5.979% 5.979% 5.977%
100.02 5.975 5.974 5.974 5.973 5.972 5.971 5.969
100.03 5.970 5.969 5.968 5.967 5.965 5.964 5.961
100.04 5.964 5.963 5.962 5.960 5.959 5.957 5.953
Modified duration
(years) 5.87 5.51 5.18 4.88 4.60 4.34 3.78
100.05 5.959% 5.957% 5.956% 5.954% 5.952% 5.950% 5.944%
100.06 5.954 5.952 5.950 5.947 5.945 5.943 5.936
100.07 5.948 5.946 5.944 5.941 5.938 5.935 5.928
100.08 5.943 5.940 5.938 5.935 5.931 5.928 5.920
Modified duration
(years) 5.87 5.51 5.18 4.88 4.60 4.34 3.78
Weighted Average
Life (years) 7.50 7.01 6.55 6.14 5.75 5.40 4.64
First Principal
Distribution
Date 12/15/96 12/15/96 12/15/96 12/15/96 12/15/96 12/15/96 12/15/96
Last Principal
Distribution
Date 02/15/06 02/15/06 02/15/06 02/15/06 02/15/06 02/15/06 01/15/06]
</TABLE>
<PAGE>
<TABLE>
[PRE-TAX YIELD TO MATURITY (CBE), MODIFIED DURATION, WEIGHTED AVERAGE LIFE, FIRST PRINCIPAL DISTRIBUTION DATE AND
LAST PRINCIPAL DISTRIBUTION DATE FOR THE CLASS A-2A CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
NO PREPAYMENTS LOCKED OUT
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
99.16 6.943% 6.952% 6.963% 6.976% 6.989% 7.005% 7.050%
Modified duration
(years) 4.20 3.61 3.10 2.67 2.32 2.01 1.45
99.20 6.913% 6.918% 6.923% 6.929% 6.935% 6.942% 6.964%
99.24 6.884 6.883 6.882 6.882 6.881 6.880 6.877
99.28 6.854 6.848 6.842 6.835 6.827 6.818 6.791
100.00 6.824 6.814 6.802 6.788 6.773 6.756 6.705
Modified duration
(years) 4.21 3.62 3.10 2.68 2.32 2.01 1.45
100.04 6.795% 6.779% 6.762% 6.742% 6.720% 6.694% 6.619%
100.08 6.765 6.745 6.721 6.695 6.666 6.632 6.534
100.12 6.735 6.711 6.681 6.649 6.612 6.570 6.448
100.16 6.706 6.676 6.641 6.602 6.559 6.509 6.363
Modified duration
(years) 4.22 3.62 3.11 2.68 2.33 2.02 1.46
100.20 6.677% 6.642% 6.601% 6.556% 6.506% 6.447% 6.278%
100.24 6.647 6.608 6.562 6.510 6.453 6.386 6.193
100.28 6.618 6.574 6.522 6.464 6.400 6.325 6.108
101.00 6.589 6.540 6.482 6.418 6.347 6.264 6.024
Modified duration
(years) 4.22 3.63 3.12 2.69 2.34 2.03 1.46
101.04 6.559% 6.506% 6.443% 6.372% 6.294% 6.203% 5.940%
101.08 6.530 6.472 6.403 6.326 6.241 6.142 5.855
101.12 6.501 6.438 6.363 6.280 6.188 6.081 5.771
101.16 6.472 6.404 6.324 6.235 6.136 6.020 5.688
Modified duration
(years) 4.23 3.64 3.12 2.70 2.34 2.03 1.47
Weighted Average
Life (years) 5.20 4.39 3.70 3.14 2.68 2.29 1.61
First Principal
Distribution
Date 12/15/96 12/15/96 12/15/96 12/15/96 12/15/96 12/15/96 12/15/96
Last Principal
Distribution
Date 09/15/03 07/15/03 11/15/02 06/15/02 09/15/01 07/15/01 03/15/00
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN
THE FOLLOWING CPR
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
99.16 6.943% 6.943% 6.944% 6.944% 6.944% 6.944% 6.945%
Modified duration
(years) 4.20 4.19 4.17 4.15 4.13 4.12 4.08
99.20 6.913% 6.913% 6.914% 6.914% 6.914% 6.914% 6.914%
99.24 6.884 6.884 6.884 6.884 6.884 6.883 6.883
99.28 6.854 6.854 6.854 6.853 6.853 6.853 6.853
100.00 6.824 6.824 6.824 6.823 6.823 6.823 6.822
Modified duration
(years) 4.21 4.19 4.17 4.16 4.14 4.12 4.08
100.04 6.795% 6.794% 6.794% 6.793% 6.793% 6.793% 6.792%
100.08 6.765 6.764 6.764 6.763 6.763 6.762 6.761
100.12 6.735 6.735 6.734 6.733 6.733 6.732 6.731
100.16 6.706 6.705 6.704 6.704 6.703 6.702 6.700
Modified duration
(years) 4.22 4.20 4.18 4.16 4.15 4.13 4.09
100.20 6.677% 6.676% 6.675% 6.674% 6.673% 6.672% 6.670%
100.24 6.647 6.646 6.645 6.644 6.643 6.642 6.640
100.28 6.618 6.617 6.615 6.614 6.613 6.612 6.609
101.00 6.589 6.587 6.586 6.585 6.583 6.582 6.579
Modified duration
(years) 4.22 4.21 4.19 4.17 4.15 4.14 4.10
101.04 6.559% 6.558% 6.556% 6.555% 6.554% 6.552% 6.549%
101.08 6.530 6.529 6.527 6.525 6.524 6.522 6.519
101.12 6.501 6.499 6.498 6.496 6.494 6.493 6.489
101.16 6.472 6.470 6.468 6.466 6.465 6.463 6.459
Modified duration
(years) 4.23 4.21 4.19 4.18 4.16 4.14 4.10
Weighted Average
Life (years) 5.20 5.18 5.15 5.13 5.10 5.08 5.02
First Principal
Distribution
Date 12/15/96 12/15/96 12/15/96 12/15/96 12/15/96 12/15/96 12/15/96
Last Principal
Distribution
Date 09/15/03 09/15/03 09/15/03 09/15/03 09/15/03 09/15/03 09/15/03]
</TABLE>
<PAGE>
<TABLE>
[PRE-TAX YIELD TO MATURITY (CBE), MODIFIED DURATION, WEIGHTED AVERAGE LIFE, FIRST PRINCIPAL DISTRIBUTION DATE AND
LAST PRINCIPAL DISTRIBUTION DATE FOR THE CLASS A-2B CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
NO PREPAYMENTS LOCKED OUT
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
100.16 7.206% 7.193% 7.179% 7.169% 7.157% 7.145% 7.109%
Modified duration
(years) 6.31 5.72 5.18 4.86 4.51 4.22 3.54
100.20 7.186% 7.172% 7.155% 7.143% 7.129% 7.116% 7.074%
100.24 7.167 7.150 7.131 7.118 7.102 7.086 7.039
100.28 7.147 7.128 7.107 7.092 7.074 7.057 7.004
101.00 7.127 7.107 7.084 7.067 7.047 7.028 6.969
Modified duration
(years) 6.32 5.73 5.19 4.86 4.51 4.23 3.54
101.04 7.108% 7.085% 7.060% 7.042% 7.019% 6.998% 6.934%
101.08 7.088 7.063 7.036 7.016 6.992 6.969 6.900
101.12 7.069 7.042 7.012 6.991 6.965 6.940 6.865
101.16 7.049 7.021 6.989 6.966 6.938 6.911 6.830
Modified duration
(years) 6.32 5.73 5.20 4.87 4.52 4.23 3.55
101.20 7.030% 6.999% 6.965% 6.940% 6.910% 6.882% 6.795%
101.24 7.010 6.978 6.941 6.915 6.883 6.853 6.761
101.28 6.991 6.956 6.918 6.890 6.856 6.824 6.726
102.00 6.972 6.935 6.894 6.865 6.829 6.795 6.692
Modified duration
(years) 6.33 5.74 5.20 4.87 4.52 4.24 3.55
102.04 6.952% 6.914% 6.871% 6.840% 6.802% 6.766% 6.657%
102.08 6.933 6.892 6.847 6.815 6.775 6.737 6.623
102.12 6.914 6.871 6.824 6.790 6.748 6.708 6.589
102.16 6.895 6.850 6.800 6.765 6.721 6.680 6.554
Modified duration
(years) 6.34 5.75 5.21 4.88 4.53 4.24 3.56
Weighted Average
Life (years) 8.77 7.69 6.74 6.21 5.66 5.22 4.23
First Principal
Distribution Date 09/15/03 07/15/03 11/15/02 06/15/02 09/15/01 07/15/01 03/15/00
Last Principal
Distribution Date 02/15/06 01/15/06 09/15/04 09/15/03 05/15/03 09/15/02 09/15/01
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN
THE FOLLOWING CPR
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
100.16 7.206% 7.205% 7.205% 7.205% 7.204% 7.204% 7.203%
Modified duration
(years) 6.31 6.28 6.26 6.24 6.22 6.21 6.17
100.20 7.186% 7.186% 7.185% 7.185% 7.184% 7.184% 7.183%
100.24 7.167 7.166 7.165 7.165 7.164 7.164 7.163
100.28 7.147 7.146 7.146 7.145 7.145 7.144 7.143
101.00 7.127 7.127 7.126 7.125 7.125 7.124 7.123
Modified duration
(years) 6.32 6.29 6.27 6.25 6.23 6.21 6.18
101.04 7.108% 7.107% 7.106% 7.106% 7.105% 7.104% 7.103%
101.08 7.088 7.087 7.087 7.086 7.085 7.084 7.083
101.12 7.069 7.068 7.067 7.066 7.065 7.065 7.063
101.16 7.049 7.048 7.047 7.046 7.046 7.045 7.043
Modified duration
(years) 6.32 6.30 6.28 6.26 6.24 6.22 6.18
101.20 7.030% 7.029% 7.028% 7.027% 7.026% 7.025% 7.023%
101.24 7.010 7.009 7.008 7.007 7.006 7.005 7.003
101.28 6.991 6.990 6.989 6.988 6.987 6.986 6.983
102.00 6.972 6.970 6.969 6.968 6.967 6.966 6.964
Modified duration
(years) 6.33 6.31 6.29 6.27 6.25 6.23 6.19
102.04 6.952% 6.951% 6.950% 6.949% 6.947% 6.946% 6.944%
102.08 6.933 6.932 6.930 6.929 6.928 6.927 6.924
102.12 6.914 6.912 6.911 6.910 6.908 6.907 6.904
102.16 6.895 6.893 6.892 6.890 6.889 6.888 6.885
Modified duration
(years) 6.34 6.32 6.30 6.28 6.26 6.24 6.20
Weighted Average
Life (years) 8.77 8.73 8.69 8.65 8.61 8.58 8.51
First Principal
Distribution Date 09/15/03 09/15/03 09/15/03 09/15/03 09/15/03 09/15/03 09/15/03
Last Principal
Distribution Date 02/15/06 02/15/06 02/15/06 02/15/06 02/15/06 01/15/06 01/15/06]
</TABLE>
<PAGE>
<TABLE>
[PRE-TAX YIELD TO MATURITY (CBE), MODIFIED DURATION, WEIGHTED AVERAGE LIFE, FIRST PRINCIPAL DISTRIBUTION DATE AND
LAST PRINCIPAL DISTRIBUTION DATE FOR THE CLASS B CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
NO PREPAYMENTS LOCKED OUT
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
100.16 7.334% 7.333% 7.329% 7.319% 7.308% 7.301% 7.276%
Modified duration
(years) 6.59 6.51 6.31 5.83 5.41 5.13 4.41
100.20 7.315% 7.314% 7.309% 7.297% 7.285% 7.276% 7.247%
100.24 7.297 7.295 7.290 7.276 7.262 7.252 7.219
100.28 7.278 7.276 7.270 7.255 7.239 7.228 7.191
101.00 7.259 7.257 7.250 7.234 7.217 7.204 7.163
Modified duration
(years) 6.60 6.52 6.32 5.84 5.42 5.14 4.42
101.04 7.240% 7.238% 7.231% 7.213% 7.194% 7.180% 7.135%
101.08 7.222 7.219 7.211 7.192 7.171 7.156 7.108
101.12 7.203 7.200 7.192 7.170 7.148 7.132 7.080
101.16 7.184 7.181 7.172 7.149 7.126 7.108 7.052
Modified duration
(years) 6.61 6.53 6.33 5.85 5.42 5.15 4.42
101.20 7.166% 7.162% 7.153% 7.128% 7.103% 7.084% 7.024%
101.24 7.147 7.144 7.134 7.107 7.080 7.060 6.996
101.28 7.129 7.125 7.114 7.086 7.058 7.037 6.969
102.00 7.110 7.106 7.095 7.066 7.035 7.013 6.941
Modified duration
(years) 6.62 6.54 6.34 5.86 5.43 5.15 4.43
102.04 7.092% 7.087% 7.076% 7.045% 7.013% 6.989% 6.913%
102.08 7.073 7.069 7.056 7.024 6.990 6.965 6.886
102.12 7.055 7.050 7.037 7.003 6.968 6.942 6.858
102.16 7.036 7.032 7.018 6.982 6.945 6.918 6.831
Modified duration
(years) 6.63 6.55 6.34 5.86 5.44 5.16 4.43
Weighted Average
Life (years) 9.38 9.23 8.83 7.92 7.16 6.69 5.53
First Principal
Distribution Date 02/15/06 01/15/06 10/15/04 04/15/04 09/15/03 03/15/03 12/15/01
Last Principal
Distribution Date 04/15/06 03/15/06 01/15/06 04/15/05 09/15/04 09/15/03 09/15/02
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN
THE FOLLOWING CPR
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
100.16 7.334% 7.334% 7.334% 7.334% 7.334% 7.334% 7.334%
Modified duration
(years) 6.59 6.59 6.58 6.58 6.58 6.58 6.57
100.20 7.315% 7.315% 7.315% 7.315% 7.315% 7.315% 7.315%
100.24 7.297 7.296 7.296 7.296 7.296 7.296 7.296
100.28 7.278 7.278 7.278 7.278 7.277 7.277 7.277
101.00 7.259 7.259 7.259 7.259 7.259 7.259 7.258
Modified duration
(years) 6.60 6.60 6.59 6.59 6.59 6.58 6.57
101.04 7.240% 7.240% 7.240% 7.240% 7.240% 7.240% 7.240%
101.08 7.222 7.222 7.221 7.221 7.221 7.221 7.221
101.12 7.203 7.203 7.203 7.203 7.203 7.202 7.202
101.16 7.184 7.184 7.184 7.184 7.184 7.184 7.183
Modified duration
(years) 6.61 6.61 6.60 6.60 6.60 6.59 6.58
101.20 7.166% 7.166% 7.165% 7.165% 7.165% 7.165% 7.165%
101.24 7.147 7.147 7.147 7.147 7.147 7.146 7.146
101.28 7.129 7.128 7.128 7.128 7.128 7.128 7.127
102.00 7.110 7.110 7.110 7.110 7.110 7.109 7.109
Modified duration
(years) 6.62 6.61 6.61 6.61 6.61 6.60 6.59
102.04 7.092% 7.091% 7.091% 7.091% 7.091% 7.091% 7.090%
102.08 7.073 7.073 7.073 7.073 7.073 7.072 7.072
102.12 7.055 7.055 7.054 7.054 7.054 7.054 7.053
102.16 7.036 7.036 7.036 7.036 7.036 7.035 7.035
Modified duration
(years) 6.63 6.62 6.62 6.62 6.62 6.61 6.60
Weighted Average
Life (years) 9.38 9.38 9.37 9.36 9.36 9.35 9.33
First Principal
Distribution Date 02/15/06 02/15/06 02/15/06 02/15/06 02/15/06 02/15/06 01/15/06
Last Principal
Distribution Date 04/15/06 04/15/06 04/15/06 04/15/06 04/15/06 04/15/06 04/15/06]
</TABLE>
<PAGE>
<TABLE>
[PRE-TAX YIELD TO MATURITY (CBE), MODIFIED DURATION, WEIGHTED AVERAGE LIFE, FIRST PRINCIPAL DISTRIBUTION DATE AND
LAST PRINCIPAL DISTRIBUTION DATE FOR THE CLASS C CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
NO PREPAYMENTS LOCKED OUT
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
100.16 7.427% 7.426% 7.425% 7.423% 7.413% 7.404% 7.384%
Modified duration
(years) 6.63 6.57 6.50 6.39 5.93 5.56 4.85
100.20 7.408% 7.407% 7.406% 7.403% 7.392% 7.382% 7.358%
100.24 7.390 7.388 7.387 7.384 7.371 7.360 7.333
100.28 7.371 7.370 7.368 7.364 7.350 7.338 7.307
101.00 7.352 7.351 7.349 7.345 7.330 7.315 7.282
Modified duration
(years) 6.64 6.58 6.51 6.40 5.94 5.57 4.86
101.04 7.334% 7.332% 7.330% 7.326% 7.309% 7.293% 7.256%
101.08 7.315 7.313 7.311 7.307 7.288 7.271 7.231
101.12 7.297 7.295 7.292 7.287 7.267 7.249 7.206
101.16 7.278 7.276 7.273 7.268 7.247 7.227 7.180
Modified duration
(years) 6.65 6.59 6.52 6.40 5.94 5.58 4.87
101.20 7.260% 7.257% 7.254% 7.249% 7.226% 7.205% 7.155%
101.24 7.241 7.239 7.235 7.230 7.205 7.183 7.130
101.28 7.223 7.220 7.216 7.211 7.185 7.161 7.105
102.00 7.205 7.202 7.198 7.191 7.164 7.139 7.079
Modified duration
(years) 6.64 6.60 6.53 6.41 5.95 5.58 4.87
102.04 7.186% 7.183% 7.179% 7.172% 7.143% 7.117% 7.054%
102.08 7.168 7.165 7.160 7.153 7.123 7.095 7.029
102.12 7.149 7.146 7.142 7.134 7.102 7.073 7.004
102.16 7.131 7.128 7.123 7.115 7.082 7.051 6.979
Modified duration
(years) 6.67 6.61 6.54 6.42 5.96 5.59 4.88
Weighted Average
Life (years) 9.52 9.41 9.25 9.02 8.14 7.47 6.25
First Principal
Distribution Date 04/15/06 03/15/06 01/15/06 04/15/05 09/15/04 09/15/03 09/15/02
Last Principal
Distribution Date 05/15/06 05/15/06 03/15/06 01/15/06 08/15/05 10/15/04 07/15/03
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN
THE FOLLOWING CPR
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
100.16 7.427% 7.427% 7.427% 7.427% 7.427% 7.427% 7.427%
Modified duration
(years) 6.63 6.63 6.62 6.62 6.62 6.62 6.62
100.20 7.408% 7.408% 7.408% 7.408% 7.408% 7.408% 7.408%
100.24 7.390 7.390 7.390 7.390 7.390 7.390 7.389
100.28 7.371 7.371 7.371 7.371 7.371 7.371 7.371
101.00 7.352 7.352 7.352 7.352 7.352 7.352 7.352
Modified duration
(years) 6.64 6.64 6.63 6.63 6.63 6.63 6.63
101.04 7.334% 7.334% 7.334% 7.334% 7.334% 7.334% 7.333%
101.08 7.315 7.315 7.315 7.315 7.315 7.315 7.315
101.12 7.297 7.297 7.297 7.297 7.296 7.296 7.296
101.16 7.278 7.278 7.278 7.278 7.278 7.278 7.278
Modified duration
(years) 6.65 6.65 6.64 6.64 6.64 6.64 6.64
101.20 7.260% 7.260% 7.260% 7.259% 7.259% 7.259% 7.259%
101.24 7.241 7.241 7.241 7.241 7.241 7.241 7.241
101.28 7.223 7.223 7.223 7.223 7.222 7.222 7.222
102.00 7.204 7.204 7.204 7.204 7.204 7.204 7.204
Modified duration
(years) 6.66 6.66 6.65 6.65 6.65 6.65 6.65
102.04 7.186% 7.186% 7.186% 7.186% 7.186% 7.186% 7.185%
102.08 7.168 7.168 7.167 7.167 7.167 7.167 7.167
102.12 7.149 7.149 7.149 7.149 7.149 7.149 7.149
102.16 7.131 7.131 7.131 7.131 7.131 7.131 7.130
Modified duration
(years) 6.67 6.66 6.66 6.66 6.66 6.66 6.66
Weighted Average
Life (years) 9.52 9.51 9.51 9.51 9.50 9.50 9.49
First Principal
Distribution Date 04/15/06 04/15/06 04/15/06 04/15/06 04/15/06 04/15/06 04/15/06
Last Principal
Distribution Date 05/15/06 05/15/06 05/15/06 05/15/06 05/15/06 05/15/06 05/15/06]
</TABLE>
<PAGE>
<TABLE>
[PRE-TAX YIELD TO MATURITY (CBE), MODIFIED DURATION, WEIGHTED AVERAGE LIFE, FIRST PRINCIPAL DISTRIBUTION DATE AND
LAST PRINCIPAL DISTRIBUTION DATE FOR THE CLASS D CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
NO PREPAYMENTS LOCKED OUT
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
100.16 7.735% 7.734% 7.733% 7.731% 7.730% 7.723% 7.702%
Modified duration
(years) 6.62 6.56 6.51 6.44 6.36 6.04 5.21
100.20 7.716% 7.715% 7.714% 7.712% 7.710% 7.703% 7.679%
100.24 7.698 7.696 7.695 7.693 7.691 7.682 7.655
100.28 7.679 7.677 7.676 7.674 7.672 7.662 7.631
101.00 7.660 7.658 7.657 7.655 7.652 7.641 7.607
Modified duration
(years) 6.64 6.57 6.52 6.45 6.37 6.05 5.22
101.04 7.642% 7.639% 7.638% 7.635% 7.633% 7.621% 7.584%
101.08 7.623 7.621 7.619 7.616 7.613 7.601 7.560
101.12 7.604 7.602 7.600 7.597 7.594 7.580 7.536
101.16 7.586 7.583 7.581 7.578 7.575 7.560 7.513
Modified duration
(years) 6.65 6.58 6.53 6.46 6.38 6.06 5.23
101.20 7.567% 7.564% 7.562% 7.559% 7.555% 7.540% 7.489%
101.24 7.549 7.546 7.543 7.540 7.536 7.519 7.466
101.28 7.531 7.527 7.525 7.521 7.517 7.499 7.442
102.00 7.512 7.509 7.506 7.502 7.498 7.479 7.419
Modified duration
(years) 6.66 6.59 6.54 6.47 6.39 6.07 5.23
102.04 7.494% 7.490% 7.487% 7.483% 7.479% 7.459% 7.396%
102.08 7.475 7.471 7.469 7.464 7.460 7.439 7.372
102.12 7.457 7.453 7.450 7.446 7.441 7.419 7.349
102.16 7.439 7.435 7.431 7.427 7.422 7.399 7.326
Modified duration
(years) 6.67 6.60 6.55 6.48 6.40 6.08 5.24
Weighted Average
Life (years) 9.71 9.56 9.45 9.31 9.15 8.51 6.95
First Principal
Distribution Date 05/15/06 05/15/06 03/15/06 01/15/06 08/15/05 10/15/04 07/15/03
Last Principal
Distribution Date 08/15/06 07/15/06 05/15/06 04/15/06 02/15/06 01/15/06 05/15/04
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN
THE FOLLOWING CPR
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
100.16 7.735% 7.735% 7.735% 7.735% 7.735% 7.735% 7.734%
Modified duration
(years) 6.62 6.62 6.62 6.61 6.61 6.61 6.60
100.20 7.716% 7.716% 7.716% 7.716% 7.716% 7.716% 7.716%
100.24 7.698 7.697 7.697 7.697 7.697 7.697 7.697
100.28 7.679 7.679 7.679 7.679 7.678 7.678 7.678
101.00 7.660 7.660 7.660 7.660 7.660 7.660 7.659
Modified duration
(years) 6.64 6.63 6.63 6.62 6.62 6.62 6.61
101.04 7.642% 7.641% 7.641% 7.641% 7.641% 7.641% 7.641%
101.08 7.623 7.623 7.623 7.623 7.622 7.622 7.622
101.12 7.604 7.604 7.604 7.604 7.604 7.604 7.603
101.16 7.586 7.586 7.586 7.585 7.585 7.585 7.585
Modified duration
(years) 6.65 6.64 6.64 6.63 6.63 6.63 6.62
101.20 7.567% 7.567% 7.567% 7.567% 7.567% 7.567% 7.566%
101.24 7.549 7.549 7.549 7.548 7.548 7.548 7.548
101.28 7.531 7.530 7.530 7.530 7.530 7.530 7.529
102.00 7.512 7.512 7.512 7.512 7.511 7.511 7.511
Modified duration
(years) 6.66 6.65 6.65 6.64 6.64 6.64 6.63
102.04 7.494% 7.494% 7.493% 7.493% 7.493% 7.493% 7.492%
102.08 7.475 7.475 7.475 7.475 7.475 7.474 7.474
102.12 7.457 7.457 7.457 7.456 7.456 7.456 7.456
102.16 7.439 7.439 7.438 7.438 7.438 7.438 7.437
Modified duration
(years) 6.67 6.66 6.66 6.65 6.65 6.65 6.64
Weighted Average
Life (years) 9.71 9.70 9.69 9.68 9.67 9.67 9.65
First Principal
Distribution Date 05/15/06 05/15/06 05/15/06 05/15/06 05/15/06 05/15/06 05/15/06
Last Principal
Distribution Date 08/15/06 08/15/06 08/15/06 08/15/06 08/15/06 08/15/06 08/15/06]
</TABLE>
<PAGE>
<TABLE>
[PRE-TAX YIELD TO MATURITY (CBE), MODIFIED DURATION, WEIGHTED AVERAGE LIFE, FIRST PRINCIPAL DISTRIBUTION DATE AND
LAST PRINCIPAL DISTRIBUTION DATE FOR THE CLASS E CERTIFICATES AT THE SPECIFIED CPRS
<CAPTION>
NO PREPAYMENTS LOCKED OUT
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
96.16 8.484% 8.486% 8.492% 8.495% 8.500% 8.506% 8.567%
Modified duration
(years) 6.54 6.52 6.45 6.41 6.35 6.28 5.61
96.20 8.465% 8.466% 8.472% 8.475% 8.479% 8.485% 8.544%
96.24 8.445 8.446 8.452 8.455 8.459 8.464 8.521
96.28 8.425 8.427 8.432 8.435 8.439 8.444 8.498
97.00 8.406 8.407 8.412 8.414 8.418 8.423 8.475
Modified duration
(years) 6.55 6.53 6.46 6.42 6.36 6.29 5.61
97.04 8.386% 8.387% 8.392% 8.394% 8.398% 8.403% 8.453%
97.08 8.366 8.368 8.372 8.374 8.378 8.383 8.430
97.12 8.347 8.348 8.352 8.354 8.358 8.362 8.407
97.16 8.327 8.328 8.332 8.334 8.338 8.342 8.384
Modified duration
(years) 6.56 6.54 6.47 6.43 6.37 6.30 5.62
97.20 8.308% 8.309% 8.313% 8.315% 8.318% 8.321% 8.361%
97.24 8.288 8.289 8.293 8.295 8.298 8.301 8.339
97.28 8.269 8.270 8.273 8.275 8.278 8.281 8.316
98.00 8.250 8.250 8.253 8.255 8.258 8.261 8.293
Modified duration
(years) 6.57 6.56 6.48 6.44 6.38 6.31 5.63
98.04 8.230% 8.231% 8.234% 8.235% 8.238% 8.241% 8.271%
98.08 8.211 8.212 8.214 8.216 8.218 8.220 8.248
98.12 8.192 8.192 8.195 8.196 8.198 8.200 8.226
98.16 8.172 8.173 8.175 8.176 8.178 8.180 8.203
Modified duration
(years) 6.59 6.57 6.49 6.45 6.39 6.32 5.64
Weighted Average
Life (years) 9.80 9.76 9.59 9.50 9.36 9.21 7.83
First Principal
Distribution Date 08/15/06 07/15/06 05/15/06 04/15/06 02/15/06 01/15/06 05/15/04
Last Principal
Distribution Date 09/15/06 08/15/06 07/15/06 05/15/06 04/15/06 02/15/06 10/15/04
<CAPTION>
PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN
THE FOLLOWING CPR
Prepayment Assumption (CPR)
- -----------------------------------------------------------------------------
PRICE 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
96.16 8.484% 8.485% 8.485% 8.485% 8.485% 8.485% 8.485%
Modified duration
(years) 6.54 6.54 6.54 6.54 6.53 6.53 6.53
96.20 8.465% 8.465% 8.465% 8.465% 8.465% 8.466% 8.466%
96.24 8.445 8.445 8.445 8.445 8.446 8.446 8.446
96.28 8.425 8.425 8.426 8.426 8.426 8.426 8.426
97.00 8.406 8.406 8.406 8.406 8.406 8.406 8.406
Modified duration
(years) 6.55 6.55 6.55 6.55 6.54 6.54 6.54
97.04 8.386% 8.386% 8.386% 8.386% 8.387% 8.387% 8.387%
97.08 8.366 8.367 8.367 8.367 8.367 8.367 8.367
97.12 8.347 8.347 8.347 8.347 8.347 8.347 8.348
97.16 8.327 8.327 8.328 8.328 8.328 8.328 8.328
Modified duration
(years) 6.56 6.56 6.56 6.56 6.55 6.55 6.55
97.20 8.308% 8.308% 8.308% 8.308% 8.308% 8.308% 8.308%
97.24 8.288 8.289 8.289 8.289 8.289 8.289 8.289
97.28 8.269 8.269 8.269 8.269 8.269 8.269 8.270
98.00 8.250 8.250 8.250 8.250 8.250 8.250 8.250
Modified duration
(years) 6.57 6.57 6.57 6.57 6.57 6.56 6.56
98.04 8.230% 8.230% 8.230% 8.231% 8.231% 8.231% 8.231%
98.08 8.211 8.211 8.211 8.211 8.211 8.211 8.211
98.12 8.192 8.192 8.192 8.192 8.192 8.192 8.192
98.16 8.172 8.172 8.173 8.173 8.173 8.173 8.173
Modified duration
(years) 6.59 6.58 6.58 6.58 6.58 6.57 6.57
Weighted Average
Life (years) 9.80 9.79 9.79 9.78 9.78 9.77 9.77
First Principal
Distribution Date 08/15/06 08/15/06 08/15/06 08/15/06 08/15/06 08/15/06 08/15/06
Last Principal
Distribution Date 09/15/06 09/15/06 09/15/06 09/15/06 09/15/06 09/15/06 08/15/06]
</TABLE>
<PAGE>
YIELD SENSITIVITY OF THE CLASS X CERTIFICATES
The yield to maturity of each Class of Class X Certificates will be
especially sensitive to the prepayment, repurchase and default experience on, in
the case of the Class X-1 Certificates, the Group 1 Loans, and, in the case of
the Class X-2 Certificates, the Group 2 Loans (and, to a lesser extent, the
Group 1 Loans), which prepayment, repurchase and default experience may
fluctuate significantly from time to time. A rapid rate of principal payments
will have a material negative effect on the yield to maturity of either or both
Classes of the Class X Certificates. There can be no assurance that the Mortgage
Loans will prepay at any particular rate. Prospective investors in the Class X
Certificates should fully consider the associated risks, including the risk that
such investors may not fully recover their initial investment.
[The following tables indicate the sensitivity of the pre-tax yield to
maturity on each Class of the Class X Certificates to various constant rates of
prepayment on the Mortgage Loans by projecting the monthly aggregate payments of
interest on the Class X Certificates and computing the corresponding pre-tax
yields to maturity on a corporate bond equivalent basis, based on the Maturity
Assumptions, as modified by the following additional assumptions: (i) WHEN
SPECIFICALLY INDICATED IN A PARTICULAR TABLE, Six-Month LIBOR will be assumed to
remain constant at per annum rates that are 2.00% (Alternative LIBOR Assumption
#1) or 4.00% (Alternative LIBOR Assumption #2) higher than the Base LIBOR
Assumption; (ii) WHEN SPECIFICALLY INDICATED IN A PARTICULAR TABLE, 50% (or, if
so specified, 100%) of any Prepayment Premium calculated as a declining
percentage of the amount prepaid is collected in connection with each prepayment
as to which such a Prepayment Premium is applicable; and (iii) 100% of all
Prepayment Premiums collected as described in the immediately preceding clause
(ii) will be distributed on the Class X-1 Certificates (if assumed received on a
Group 1 Loan) or the Class X-2 Certificates (if assumed received on a Group 2
Loan). It was further assumed that the respective aggregate purchase prices of
the Class X-1 and Class X-2 Certificates are as specified below, in each case
expressed in 32nds (i.e., 9.08 is 9%) as a percentage of the related initial
Notional Amount (without accrued interest). Any differences between such
assumptions and the actual characteristics and performance of the Mortgage Loans
and of the Class X Certificates may result in yields being different from those
shown in such table. Discrepancies between assumed and actual characteristics
and performance underscore the hypothetical nature of the table, which is
provided only to give a general sense of the sensitivity of yields in varying
prepayment scenarios.
The pre-tax yields set forth in the following tables were calculated by
determining the monthly discount rates that, when applied to the assumed streams
of cash flows to be paid on each Class of Class X Certificates, would cause the
discounted present value of such assumed stream of cash flows to equal the
assumed aggregate purchase price thereof, and by converting such monthly rates
to semi-annual corporate bond equivalent rates. Such calculation does not take
into account shortfalls in collection of interest due to prepayments (or other
liquidations) of the Mortgage Loans or the interest rates at which investors may
be able to reinvest funds received by them as distributions on the Class X
Certificates (and accordingly does not purport to reflect the return on any
investment in the Class X Certificates when such reinvestment rates are
considered).]
Notwithstanding the assumed prepayment rates reflected in the preceding
tables, it is highly unlikely that the Mortgage Loans will be prepaid according
to one particular pattern. For this reason, and because the timing of cash flows
is critical to determining yields, the pre-tax yield to maturity on each Class
of Class X Certificates is likely to differ from those shown in the tables, even
if all of the Mortgage Loans prepay at the indicated CPRs over any given time
period or over the entire life of the Certificates.
There can be no assurance that the Mortgage Loans will prepay at any
particular rate or that the yield on either Class of Class X Certificates will
conform to the yields described herein. Investors are urged to make their
investment decisions based on the determinations as to anticipated rates of
prepayment under a variety of scenarios. Investors in the Class X Certificates
should fully consider the risk that a rapid rate of prepayments on the Mortgage
Loans could result in the failure of such investors to fully recover their
investments.
<PAGE>
<TABLE>
[PRE-TAX YIELD TO MATURITY (CBE)
OF THE CLASS X CERTIFICATES
<CAPTION>
Assumed Prepayment Assumption (Cpr)
Purchase ---------------------------
Class Price 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
X-1 3.16 70.765% 68.218% 65.644% 63.041% 60.409% 57.746% 50.950%
4.00 60.539 58.072 55.579 53.058 50.508 47.930 41.349
4.16 52.607 50.203 47.773 45.316 42.833 40.320 33.909
X-2 9.04 10.655% 8.452% 6.249% 3.978% 1.817% (0.332)% (5.367)%
9.16 9.503 7.316 5.128 2.872 0.729 (1.401) (6.386)
9.28 8.427 6.253 4.080 1.839 (0.288) (2.400) (7.338)
</TABLE>
<TABLE>
PRE-TAX YIELD TO MATURITY (CBE)
OF THE CLASS X CERTIFICATES
(PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN THE FOLLOWING CPR)
<CAPTION>
Assumed Prepayment Assumption (Cpr)
Purchase ---------------------------
Class Price 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
X-1 3.16 70.765% 68.549% 66.323% 64.089% 61.847% 59.598% 53.955%
4.00 60.539 58.391 56.234 54.071 51.902 49.729 44.289
4.16 52.607 50.511 48.409 46.302 44.191 42.078 36.797
X-2 9.04 10.655% 10.565% 10.478% 10.394% 10.313% 10.235% 10.052%
9.16 9.503 9.411 9.323 9.237 9.155 9.076 8.889
9.28 8.427 8.333 8.243 8.156 8.072 7.991 7.802
</TABLE>
<TABLE>
PRE-TAX YIELD TO MATURITY (CBE)
OF THE CLASS X CERTIFICATES (ALTERNATIVE LIBOR ASSUMPTION #1)
<CAPTION>
Assumed Prepayment Assumption (Cpr)
Purchase ---------------------------
Class Price 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
X-1 3.16 70.841% 68.293% 65.717% 63.113% 60.479% 57.816% 51.016%
4.00 60.641 58.172 55.677 53.155 50.604 48.024 41.440
4.16 52.728 50.322 47.891 45.433 42.947 40.433 34.018
X-2 9.04 10.656% 8.454% 6.258% 4.144% 2.040% 0.001% (4.817)%
9.16 9.505 7.318 5.137 3.041 0.954 (1.066) (5.837)
9.28 8.428 6.255 4.089 2.009 (0.060) (2.064) (6.790)
</TABLE>
<TABLE>
PRE-TAX YIELD TO MATURITY (CBE)
OF THE CLASS X CERTIFICATES (ALTERNATIVE LIBOR ASSUMPTION #1)
(PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN THE FOLLOWING CPR)
<CAPTION>
Assumed Prepayment Assumption (Cpr)
Purchase ---------------------------
Class Price 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------------------------------------
<PAGE>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
[X-1 3.16 70.841% 68.615% 66.380% 64.136% 61.883% 59.624% 53.952%
4.00 60.641 58.483 56.317 54.144 51.965 49.781 44.310
4.16 52.728 50.623 48.511 46.394 44.272 42.148 36.836
X-2 9.04 10.656% 10.566% 10.480% 10.396% 10.315% 10.237% 10.054%
9.16 9.505 9.413 9.324 9.239 9.157 9.078 8.891
9.28 8.428 8.335 8.245 8.158 8.074 7.993 7.804]
</TABLE>
<PAGE>
<TABLE>
[PRE-TAX YIELD TO MATURITY (CBE)
OF THE CLASS X CERTIFICATES (ALTERNATIVE LIBOR ASSUMPTION #2)
<CAPTION>
Assumed Prepayment Assumption (Cpr)
Purchase ---------------------------
Class Price 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
X-1 3.16 55.873% 53.448% 50.998% 48.520% 46.015% 43.481% 37.014%
4.00 47.229 44.873 42.491 40.083 37.649 35.186 28.902
4.16 40.498 38.195 35.868 33.515 31.137 28.731 22.592
X-2 9.04 10.658% 8.457% 6.267% 4.312% 2.267% 0.335% (4.269)%
9.16 9.506 7.320 5.146 3.211 1.183 (0.730) (5.290)
9.28 8.430 6.257 4.099 2.181 0.170 (1.726) (6.245)
</TABLE>
<TABLE>
PRE-TAX YIELD TO MATURITY (CBE)
OF THE CLASS X CERTIFICATES (ALTERNATIVE LIBOR ASSUMPTION #2)
(PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN THE FOLLOWING CPR)
<CAPTION>
Assumed Prepayment Assumption (Cpr)
Purchase ---------------------------
Class Price 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
X-1 3.16 55.873% 53.810% 51.743% 49.673% 47.601% 45.528% 40.359%
4.00 47.229 45.221 43.211 41.199 39.187 37.177 32.174
4.16 40.498 38.533 36.567 34.600 32.636 30.675 25.804
X-2 9.04 10.658% 10.568% 10.481% 10.398% 10.317% 10.239% 10.056%
9.16 9.506 9.415 9.326 9.241 9.159 9.079 8.894
9.28 8.430 8.337 8.246 8.160 8.076 7.995 7.806
</TABLE>
<TABLE>
PRE-TAX YIELD TO MATURITY (CBE)
OF THE CLASS X CERTIFICATES (50% RECOVERY OF DECL. % PREMIUMS)
(PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN THE FOLLOWING CPR)
<CAPTION>
Assumed Prepayment Assumption (Cpr)
Purchase ---------------------------
Class Price 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
X-1 3.16 70.765% 69.184% 67.601% 66.015% 64.428% 62.841% 58.873%
4.00 60.539 58.908 57.274 55.638 54.001 52.365 48.280
4.16 52.607 50.944 49.279 47.612 45.945 44.279 40.126
X-2 9.04 10.655% 10.578% 10.505% 10.434% 10.366% 10.301% 10.147%
9.16 9.503 9.425 9.350 9.278 9.208 9.141 8.985
9.28 8.427 8.347 8.270 8.196 8.126 8.058 7.898
</TABLE>
<TABLE>
PRE-TAX YIELD TO MATURITY (CBE)
OF THE CLASS X CERTIFICATES (100% RECOVERY OF DECL. % PREMIUMS)
(PREPAYMENTS LOCKED OUT THROUGH LOP AND YMP, THEN THE FOLLOWING CPR)
<CAPTION>
Assumed Prepayment Assumption (Cpr)
Purchase ---------------------------
<PAGE>
[Class Price 0% 2% 4% 6% 8% 10% 15%
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
X-1 3.16 70.765% 69.825% 68.899% 67.989% 67.094% 66.217% 64.102%
4.00 60.539 59.429 58.329 57.241 56.165 55.103 52.512
4.16 52.607 51.379 50.160 48.950 47.750 46.562 43.646
X-2 9.04 10.655% 10.592% 10.532% 10.474% 10.419% 10.366% 10.242%
9.16 9.503 9.439 9.377 9.318 9.261 9.207 9.080
9.28 8.427 8.361 8.297 8.237 8.179 8.123 7.994]
</TABLE>
<PAGE>
[If each Group 1 Loan were to prepay in full at the later of (i) the
first month following the end of the lockout period (if any), (ii) the first
month following the end of the yield maintenance period (if any), and (iii) the
month in which any prepayment penalty (if any) declines to less than or equal to
2% of the amount prepaid, and if any prepayment penalties due on the Group 1
Loans are collected and passed through to the Class X-1 Certificates, the
resulting yields to maturity of the Class X-1 Certificates would be 39.846%,
25.873%, and 15.627% at prices of 3.5%, 4.0% and 4.5%, respectively, of the
related initial Notional Amount (plus accrued interest).]
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
GENERAL
Upon the issuance of the Offered Certificates, Thacher Proffitt & Wood,
counsel to the Depositor, will deliver its opinion generally to the effect that,
assuming compliance with all provisions of the Pooling and Servicing Agreement,
for Federal income tax purposes, REMIC I, REMIC II and REMIC III will each
qualify as a REMIC under the Code. For Federal income tax purposes, the Class
R-I Certificates will be the sole class of "residual interests" in REMIC I; the
Class R-II Certificates will be the sole class of "residual interests" in REMIC
II; the REMIC Regular Certificates will evidence the "regular interests" in, and
will be treated as debt instruments of, REMIC III; and the Class R-III
Certificates will be the sole class of "residual interests" in REMIC III. See
"Certain Federal Income Tax Consequences--REMICs" in the Prospectus.
ORIGINAL ISSUE DISCOUNT AND PREMIUM
The Class X-1 and Class X-2 Certificates will, the Class E Certificates
may, and the Class A-1, Class A-2A, Class A-2B, Class B, Class C and Class D
Certificates will not, be treated as having been issued with original issue
discount for Federal income tax reporting purposes. The prepayment assumption
that will be used in determining the rate of accrual of original issue discount,
market discount and premium, if any, for Federal income tax purposes will be
based on the assumption that subsequent to the date of any determination the
Mortgage Loans will not prepay prior to their respective maturity dates. No
representation is made that the Mortgage Loans will not prepay. See "Certain
Federal Income Tax Consequences--REMICs--Taxation of Owners of REMIC Regular
Certificates--Original Issue Discount" in the Prospectus.
The IRS has issued OID Regulations under Sections 1271 to 1275 of the
Code generally addressing the treatment of debt instruments issued with original
issue discount. Purchasers of the Offered Certificates should be aware that the
OID Regulations and Section 1272(a)(6) of the Code do not adequately address
certain issues relevant to, or are not applicable to, prepayable securities such
as the Offered Certificates. In addition, there is considerable uncertainty
concerning the application of Section 1272(a)(6) of the Code and the OID
Regulations to REMIC Regular Certificates that provide for payments based on an
adjustable rate, such as the Class A-1 Certificates and the Class X
Certificates. Because of the uncertainties concerning the application of Section
1272(a)(6) of the Code to the Class A-1 Certificates and the Class X
Certificates and because the rules of the OID Regulations relating to debt
instruments having an adjustable rate of interest are limited in their
application in ways that could preclude their application to the Class A-1
Certificates and the Class X Certificates even in the absence of Section
1272(a)(6) of the Code, the IRS could assert that the Class A-1 Certificates and
the Class X Certificates should be treated as having been issued with original
issue discount or should be governed by some other method not yet set forth in
regulations. Prospective purchasers of the Offered Certificates are advised to
consult their tax advisors concerning the tax treatment of such Certificates.
If the Class A-1 Certificates and the Class X Certificates are required
to be treated as having been issued with original issue discount, it appears
that a reasonable method of reporting original issue discount with respect to
the Class A-1 Certificates and the Class X Certificates, generally would be to
report all income with respect to such Certificates as original issue discount
for each period, computing such original issue discount (i) by assuming that the
value of the applicable index will remain constant for purposes of determining
the original yield to maturity of, and projecting future distributions on, such
Certificates, thereby treating such Certificates as fixed rate instruments to
which the original issue discount computation rules described in the Prospectus
can be applied, and (ii) by accounting for any positive or negative variation in
the actual value of the applicable index in any period from its assumed value as
a current adjustment to original issue discount with respect to such period. See
"Certain Federal Income Tax Consequences--REMICs--Taxation of Owners of REMIC
Regular Certificates--Original Issue Discount" in the Prospectus.
<PAGE>
If the method for computing original issue discount described in the
Prospectus results in a negative amount for any period with respect to a holder
of a Class X Certificate, the amount of original issue discount allocable to
such period would be zero and such Certificateholder will be permitted to offset
such negative amount only against future original issue discount
<PAGE>
EXHIBIT D
Underwriter Information
(All text and tables between brackets are excluded)
<PAGE>
PROSPECTUS SUPPLEMENT (TO PROSPECTUS DATED OCTOBER 22, 1996)
$395,151,146
(APPROXIMATE)
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
DEPOSITOR
GMAC COMMERCIAL MORTGAGE CORPORATION
SERVICER
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1996-C1
-----------------
The Series 1996-C1 Mortgage Pass-Through Certificates (the
"CERTIFICATES") will consist of the following 15 classes (each, a "CLASS"): (i)
the Class X-1 and Class X-2 Certificates (collectively, the "CLASS X
CERTIFICATES"); (ii) the Class A-1, Class A-2A and Class A-2B Certificates
(collectively, the "CLASS A CERTIFICATES"; and collectively with the Class X
Certificates, the "SENIOR CERTIFICATES"); (iii) the Class B, Class C, Class D,
Class E, Class F, Class G and Class H Certificates (collectively, the
"Subordinate Certificates"; and collectively with the Senior Certificates, the
"REMIC Regular Certificates");
(COVER CONT. ON NEXT PAGE)
-----------------
PROCEEDS OF THE ASSETS IN THE TRUST FUND ARE THE SOLE SOURCE OF PAYMENTS ON THE
OFFERED CERTIFICATES. THE OFFERED CERTIFICATES DO NOT REPRESENT AN INTEREST
IN OR OBLIGATION OF THE DEPOSITOR, GMAC COMMERCIAL MORTGAGE CORPORATION
OR ANY OF THEIR AFFILIATES. NEITHER THE OFFERED CERTIFICATES NOR THE
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY OR BY THE DEPOSITOR, GMAC COMMERCIAL
MORTGAGE CORPORATION OR ANY OF THEIR AFFILIATES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED THE
MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
PROSPECTIVE INVESTORS SHOULD REVIEW THE INFORMATION APPEARING UNDER THE
CAPTION "RISK FACTORS" BEGINNING ON PAGE S-18 HEREIN AND PAGE 11 IN THE
PROSPECTUS BEFORE PURCHASING ANY OFFERED CERTIFICATE.
<TABLE>
<CAPTION>
Initial Assumed Final
Class Certificate Balance(1) Pass-through Rate Distribution Date(2)
- ----- ---------------------- ----------------- --------------------
<S> <C> <C> <C>
Class X-1............................... N/A(3) 0.9455%(4) July 15, 2006
Class X-2............................... N/A(5) 1.9673%(6) March 15, 2021
Class A-1............................... $ 33,475,146 5.9125%(7) February 15, 2006
Class A-2A.............................. 190,353,000 6.7900% September 15, 2003
Class A-2B.............................. 71,963,000 7.2200% February 15, 2006
Class B................................. 31,978,000 7.3400% April 15, 2006
Class C................................. 26,268,000 7.4300% May 15, 2006
Class D................................. 27,409,000 7.7300% August 15, 2006
Class E................................. 13,705,000 7.8600% September 15, 2006
</TABLE>
(FOOTNOTES ON NEXT PAGE)
[The Offered Certificates will be purchased from the Depositor by
Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated (the "UNDERWRITERS")
and will be offered by the Underwriters from time to time in negotiated
transactions or otherwise at varying prices to be determined at the time of
sale. Proceeds to the Depositor from the sale of the Offered Certificates,
before deducting expenses payable by the Depositor estimated to be approximately
$2,000,000, will be 111.56% of the initial aggregate Certificate Balance of the
Offered Certificates, plus accrued interest. The Offered Certificates are
offered by the Underwriters subject to prior sale, when, as and if delivered to
and accepted by the Underwriters and subject to certain other conditions. It is
expected that the Offered Certificates will be delivered in book-entry form
through the Same-Day Funds Settlement System of DTC on or about November 7, 1996
(the "DELIVERY DATE"), against payment therefor in immediately available funds.]
GOLDMAN, SACHS & CO. MORGAN STANLEY & CO.
Incorporated
and solely as members of the selling group
CONTIFINANCIAL SERVICES CORPORATION [LOGO]
The date of this Prospectus Supplement is October 30, 1996.
<PAGE>
Distributions on the Certificates will be made, to the extent of
available funds, on the 15th day of each month or, if any such 15th day is not a
business day, then on the next business day, beginning in December 1996 (each, a
"DISTRIBUTION DATE"). As described herein, interest distributions on each Class
of Offered Certificates will be made on each Distribution Date based on the
Pass-Through Rate then applicable to such Class and the Certificate Balance or
Notional Amount, as the case may be, of such Class outstanding immediately prior
to such Distribution Date. Distributions allocable to principal of the
respective Classes of Certificates with Certificate Balances (the "PRINCIPAL
BALANCE CERTIFICATES") will be made in the amounts and in accordance with the
priorities described herein until the Certificate Balance of each such Class is
reduced to zero. No Class of Class X Certificates will have a Certificate
Balance or entitle the holders thereof to receive distributions of principal. As
described herein, any Prepayment Premiums actually collected on the Mortgage
Loans will be distributed among certain of the Classes of Certificates in the
amounts and in accordance with the priorities described herein.
See "Description of the Certificates--Distributions" herein.
As and to the extent described herein, the Subordinate Certificates
will be subordinate to the Senior Certificates; and each Class of Subordinate
Certificates will further be subordinate to each other class of Subordinate
Certificates, if any, with an earlier alphabetical Class designation. The REMIC
Residual Certificates will be subordinate to the Regular Interest Certificates.
See "Description of the Certificates--Distributions" and "--Subordination;
Allocation of Losses and Certain Expenses" herein.
The yield to maturity of each Class of Offered Certificates will depend
on, among other things, the rate and timing of principal payments (including by
reason of prepayments, loan extensions, defaults and liquidations) and losses on
or in respect of the Mortgage Loans that result in a reduction of the
Certificate Balance or Notional Amount of such Class. The yield to maturity of
the Class X Certificates will be highly sensitive to the rate and timing of
principal payments (including by reason of prepayments, defaults and
liquidations) and losses on or in respect of, in the case of the Class X-1
Certificates, the Group 1 Loans and, in the case of the Class X-2 Certificates,
the Group 2 Loans (and, to a lesser extent, the Group 1 Loans), which rate and
timing of principal payments and losses may fluctuate significantly from time to
time. A rate of principal prepayments on the Mortgage Loans that is more rapid
than expected by investors will have a material negative effect on the yield to
maturity of one or both Classes of the Class X Certificates. Investors in the
Class X Certificates should consider the associated risks, including the risk
that a rapid rate of principal prepayments on the Mortgage Loans could result in
the failure of investors in either or both Classes of such Certificates to
recover fully their initial investments. See "Yield and Maturity Considerations"
herein and "Yield and Maturity Considerations" and "Risk Factors--Yield and
Prepayment Considerations" in the Prospectus.
See "Index of Principal Definitions" in the Prospectus for the location
of meanings of capitalized terms used but not defined herein. See "Index of
Principal Definitions" herein for location of meanings of other capitalized
terms used herein.
[There is currently no secondary market for the Offered Certificates.
The Underwriters intend to make a secondary market in the Offered Certificates,
but are not obligated to do so. There can be no assurance that a secondary
market for the Offered Certificates will develop or, if it does develop, that it
will continue. The Offered Certificates will not be listed on any securities
exchange.]
S-28
<PAGE>
In the Underwriting Agreement, the Underwriters have agreed, subject to
the terms and conditions set forth therein, to purchase all of the Offered
Certificates if any are purchased. In the event of default by either
Underwriter, the Underwriting Agreement provides that, in certain circumstances,
the purchase commitment of the nondefaulting Underwriters may be increased or
the underwriting may be terminated.
The Underwriting Agreement provides that the obligation of each
Underwriter to pay for and accept delivery of its Certificates is subject to,
among other things, the receipt of certain legal opinions and to the conditions,
among others, that no stop order suspending the effectiveness of the Depositor's
Registration Statement shall be in effect, and that no proceedings for such
purpose shall be pending before or threatened by the Securities and Exchange
Commission.
[The distribution of the Offered Certificates by the Underwriters may
be effected from time to time in one or more negotiated transactions, or
otherwise, at varying prices to be determined at the time of sale. Proceeds to
the Depositor from the sale of the Offered Certificates, before deducting
expenses payable by the Depositor, will be approximately 111.56% of the
aggregate Certificate Balance of the Offered Certificates, plus accrued
interest. Each Underwriter may effect such transactions by selling its
Certificates to or through dealers, and such dealers may receive compensation in
the form of underwriting discounts, concessions or commissions from the
Underwriter for whom they act as agent. In connection with the sale of the
Offered Certificates, each Underwriter may be deemed to have received
compensation from the Depositor in the form of underwriting compensation. Each
Underwriter and any dealers that participate with such Underwriter in the
distribution of the Offered Certificates may be deemed to be underwriters and
any profit on the resale of the Offered Certificates positioned by them may be
deemed to be underwriting discounts and commissions under the Securities Act of
1933, as amended.
ContiFinancial Services Corporation and ING Baring (U.S.) Securities,
Inc., affiliates of ContiTrade and ING Capital, respectively, may act as dealers
on behalf of Goldman, Sachs & Co. with respect to certain Classes of the Offered
Certificates to be purchased by such Underwriter.]
The Underwriting Agreement provides that the Depositor will indemnify
the Underwriters, and that under limited circumstances the Underwriters will
indemnify the Depositor, against certain civil liabilities under the Securities
Act of 1933, as amended, or contribute to payments to be made in respect
thereof.
There can be no assurance that a secondary market for the Offered
Certificates will develop or, if it does develop, that it will continue. The
primary source of ongoing information available to investors concerning the
Offered Certificates will be the Trustee Reports discussed herein under
"Description of the Certificates--Reports to Certificateholders; Certain
Available Information." Except as described herein under "Description of the
Certificates--Reports to Certificateholders; Certain Available Information",
there can be no assurance that any additional information regarding the Offered
Certificates will be available through any other source. In addition, the
Depositor is not aware of any source through which price information about the
Offered Certificates will be generally available on an ongoing basis. The
limited nature of such information regarding the Offered Certificates may
adversely affect the liquidity of the Offered Certificates, even if a secondary
market for the Offered Certificates becomes available.
LEGAL MATTERS
Certain legal matters will be passed upon for the Depositor by Thacher
Proffitt & Wood and for the Underwriters by Brown & Wood LLP.
RATINGS
It is a condition to their issuance that the respective Classes of
Offered Certificates receive the indicated credit ratings from Standard & Poor's
Ratings Services, a Division of the McGraw-Hill Companies, Inc. ("S&P") and/or
Moody's Investors Service, Inc. ("Moody's"; and together with S&P, the "Rating
Agencies"):
Class S&p Moody's
- ------------------------------------------------------------------------
Class X-1 NR Aaa
Class X-2 NR Aaa
Class A-1 AAA Aaa
Class A-2A AAA Aaa
Class A-2B AAA Aaa
Class B AA Aa1
S-29
<PAGE>
EXHIBIT E
(Exhibit E intentionally left blank)
<PAGE>
EXHIBIT F
November 7, 1996
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, Pennsylvania 19044
GMAC Commercial Mortgage
Securities, Inc., Mortgage Pass-
Through Certificates, Series 1996-
C1
----------------------------------
Pursuant to Section 4 of the Underwriting Agreement, dated October 30,
1996 (the "Certificate Purchase Agreement"), among the GMAC Commercial Mortgage
Securities, Inc., GMAC Commercial Mortgage Corporation and Goldman, Sachs & Co.
as representative on behalf of itself and and Morgan Stanley & Co. Incorporated
(the "Underwriters") relating to the Certificates referenced above, the
undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the
Certificates was 0% CPR.
(b) Set forth below is (i), the first price, as a
percentage of the actual or notional, as the case may be, principal balance of
each class of Certificates, at which 10% of the aggregate actual or notional, as
the case may be, principal balance of each such class of Certificates was sold
to the public at a single price, if applicable, or (ii) if more than 10% of a
class of Certificates have been sold to the public but no single price is paid
for at least 10% of the aggregate actual or notional, as the case may be,
principal balance of such class of Certificates, then the weighted average price
at which the Certificates of such class were sold expressed as a percentage of
the actual or notional, as the case may be, principal balance of such class of
Certificates, or (iii) if less than 10% of the aggregate actual or notional, as
the case may be, principal balance of a class of Certificates has been sold to
the public, the purchase price for each such class of Certificates paid by the
Underwriters expressed as a percentage of the actual or notional, as the case
may be, principal balance of such class of Certificates calculated by: (1)
estimating the fair market value of each such class of Certificates as of
November 7, 1996; (2) adding such estimated fair market value to the aggregate
purchase price of each class of Certificates described in clause (i) or (ii)
above; (3) dividing each of the fair market values determined in clause (1) by
the sum obtained in clause (2); (4) multiplying the quotient obtained for each
class of Certificates in clause (3) by the purchase price paid by the Purchaser
for all the Certificates; and (5) for each class of Certificates, dividing the
product obtained from such class of Certificates in clause (4) by the original
actual or notional, as the case may be, principal balance of such class of
Certificates:
Class X-1:___________________
Class X-2:___________________
Class A-1:___________________
Class A-2A:__________________
Class A-2B:__________________
Class B:_____________________
Class C:_____________________
Class D:_____________________
Class E:_____________________
[* less than 10% has been sold to the public]
The prices set forth above do not include accrued interest with respect to
periods before closing.
GOLDMAN, SACHS & CO.
By:______________________________________
Name:____________________________________
Title:___________________________________
For itself and the other Underwriters
named in Schedule I to the Underwriting
Agreement
S-1
EXHIBIT 4.1
<PAGE>
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer
GMAC COMMERCIAL MORTGAGE CORPORATION,
Special Servicer
and
STATE STREET BANK AND TRUST COMPANY,
Trustee
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 1996
---------------------------------
$456,736,350
Mortgage Pass-Through Certificates
Series 1996-C1
<PAGE>
TABLE OF CONTENTS
-----------------
Section Page
- ------- ----
ARTICLE I
DEFINITIONS
1.01. Defined Terms ...................................................... 4
Accrued Certificate Interest .............................................. 4
Acquisition Date .......................................................... 4
Additional Trust Fund Expense ............................................. 4
Adjustable Rate Mortgage Loan ............................................. 4
Adjustment Date ........................................................... 4
Advance ................................................................... 4
Advance Interest .......................................................... 5
Affiliate ................................................................. 5
Aggregate Principal Distribution Amount ................................... 5
Agreement ................................................................. 5
Applicable State Law ...................................................... 5
Appraisal ................................................................. 5
Appraisal Reduction Amount ................................................ 5
Appraised Value ........................................................... 6
Assignment of Leases ...................................................... 6
Assumed Monthly Payment ................................................... 6
Available Distribution Amount ............................................. 6
Balloon Mortgage Loan ..................................................... 7
Balloon Payment ........................................................... 7
Balloon Payment Interest Excess ........................................... 7
Balloon Payment Interest Shortfall ........................................ 7
Bankruptcy Code ........................................................... 7
Breach .................................................................... 7
Book-Entry Certificate .................................................... 7
Business Day .............................................................. 8
CERCLA .................................................................... 8
Certificate ............................................................... 8
Certificate Account ....................................................... 8
Certificate Factor ........................................................ 8
Certificateholder" or "Holder ............................................. 8
Certificateholder Reports ................................................. 8
Certificate Notional Amount ............................................... 9
Certificate Owner ......................................................... 9
Certificate Principal Balance ............................................. 9
Certificate Register ...................................................... 9
Certificate Registrar ..................................................... 9
Class ..................................................................... 9
i
<PAGE>
Section Page
- ------- ----
Class A Certificate ....................................................... 9
Class A-1 Certificate ..................................................... 9
Class A-2A Certificate .................................................... 9
Class A-2B Certificate .................................................... 9
Class B Certificate ....................................................... 9
Class C Certificate ....................................................... 9
Class D Certificate ....................................................... 10
Class E Certificate ....................................................... 10
Class F Certificate ....................................................... 10
Class G Certificate ....................................................... 10
Class H Certificate ....................................................... 10
Class Notional Amount ..................................................... 10
Class Principal Balance ................................................... 10
Class R-I Certificate ..................................................... 10
Class R-II Certificate .................................................... 10
Class R-III Certificate ................................................... 11
Class X Certificate ....................................................... 11
Class X-1 Certificate ..................................................... 11
Class X-2 Certificate ..................................................... 11
Class X-2 Share ........................................................... 11
Closing Date .............................................................. 11
Code ...................................................................... 11
Collection Period ......................................................... 12
Collection Report ......................................................... 12
Commission ................................................................ 12
Compensating Interest Payments ............................................ 12
ContiTrade ................................................................ 12
Conti Guarantor ........................................................... 12
Conti Guarantor Agreement ................................................. 12
Controlling Class ......................................................... 12
Corporate Trust Office .................................................... 12
Corrected Mortgage Loan ................................................... 12
CPR ....................................................................... 13
Credit File ............................................................... 13
Cross-Collateralized Mortgage Loans ....................................... 13
Current Principal Distribution Amount ..................................... 13
Custodian ................................................................. 14
Cut-off Date .............................................................. 14
Cut-off Date Principal Balance ............................................ 14
Debt Service Coverage Ratio ............................................... 14
Debt Service Reduction .................................................... 14
Defaulted Mortgage Loan ................................................... 14
Default Interest .......................................................... 14
Defect .................................................................... 14
ii
<PAGE>
Section Page
- ------- ----
Deficient Valuation ....................................................... 14
Definitive Certificate .................................................... 15
Delinquency Advance ....................................................... 15
Delinquency Advance Date .................................................. 15
Delinquent Loan Status Report ............................................. 15
Depositor ................................................................. 15
Depository ................................................................ 15
Depository Participant .................................................... 15
Determination Date ........................................................ 15
Directly Operate .......................................................... 15
Discount Rate ............................................................. 16
Distributable Certificate Interest ........................................ 16
Distribution Account ...................................................... 16
Distribution Date ......................................................... 16
Distribution Date Statement ............................................... 16
Due Date .................................................................. 16
Effective Certificate Notional Amount ..................................... 17
Effective Class Notional Amount ........................................... 17
Effective Pass-Through Rate ............................................... 17
Effective REMIC I Remittance Rate ......................................... 17
Eligible Account .......................................................... 17
Emergency Advance ......................................................... 18
Environmental Assessment .................................................. 18
ERISA ..................................................................... 18
Escrow Payment ............................................................ 18
Event of Default .......................................................... 18
Exchange Act .............................................................. 18
Extension Adviser ......................................................... 18
FDIC ...................................................................... 18
FHLMC ..................................................................... 18
Final Recovery Determination .............................................. 18
Final Distribution Date ................................................... 18
Fixed Rate Mortgage Loan .................................................. 18
FNMA ...................................................................... 19
Formula 1 LIBOR Business Day .............................................. 19
Formula 1 LIBOR Determination Date ........................................ 19
GMACCM .................................................................... 19
Gross Margin .............................................................. 19
Ground Lease .............................................................. 19
Group 1 Certificates ...................................................... 19
Group 1 Loan .............................................................. 19
Group 2 Certificates ...................................................... 19
Group 2 Loan .............................................................. 19
Hazardous Materials ....................................................... 19
iii
<PAGE>
Section Page
- ------- ----
Historical Loan Modification Report ....................................... 19
Historical Loss Report .................................................... 20
Independent ............................................................... 20
Independent Contractor .................................................... 20
Index ..................................................................... 20
ING ....................................................................... 21
Initial Class Notional Amount ............................................. 21
Initial Class Principal Balance ........................................... 21
Initial Effective Class Notional Amount ................................... 21
Initial Loan Group 1 Balance .............................................. 21
Initial Loan Group 2 Balance .............................................. 21
Insurance Policy .......................................................... 21
Insurance Proceeds ........................................................ 21
Interest Accrual Period ................................................... 22
Interest Only Certificate ................................................. 22
Interest Rate Adjustment Date ............................................. 22
Interested Person ......................................................... 22
Issue Price ............................................................... 22
Late Collections .......................................................... 22
LIBOR ..................................................................... 22
LIBOR Reference Period .................................................... 23
Liquidation Event ......................................................... 23
Liquidation Expenses ...................................................... 23
Liquidation Fee ........................................................... 23
Liquidation Fee Rate ...................................................... 23
Liquidation Proceeds ...................................................... 23
Loan Group ................................................................ 24
Loan Group 1 .............................................................. 24
Loan Group 2 .............................................................. 24
Loan-to-Value Ratio ....................................................... 24
Loss Reimbursement Amount ................................................. 24
MAI ....................................................................... 24
Majority Certificateholder ................................................ 24
Master Servicer ........................................................... 24
Master Servicer Remittance Date ........................................... 25
Master Servicing Fee ...................................................... 25
Master Servicing Fee Rate ................................................. 25
Maturity Assumptions ...................................................... 25
Maturity Date ............................................................. 26
Modified Mortgage Loan .................................................... 26
Monthly Payment ........................................................... 26
Moody's ................................................................... 26
Mortgage .................................................................. 27
Mortgaged Property ........................................................ 27
iv
<PAGE>
Section Page
- ------- ----
Mortgage File ............................................................. 27
Mortgage Loan ............................................................. 29
Mortgage Loan Accrual Period .............................................. 29
Mortgage Loan Accrued Interest ............................................ 29
Mortgage Loan Purchase Agreement .......................................... 29
Mortgage Loan Schedule .................................................... 29
Mortgage Loan Seller ...................................................... 30
Mortgage Note ............................................................. 30
Mortgage Pool ............................................................. 30
Mortgage Rate ............................................................. 30
Mortgagor ................................................................. 31
Net Aggregate Prepayment Interest Shortfall ............................... 31
Net Default Interest ...................................................... 31
Net Investment Earnings ................................................... 31
Net Investment Loss ....................................................... 31
Net Mortgage Rate ......................................................... 31
Net Operating Income ...................................................... 31
Nonrecoverable Advance .................................................... 31
Nonrecoverable Delinquency Advance ........................................ 32
Nonrecoverable Servicing Advance .......................................... 32
Non-Registered Certificate ................................................ 32
Officer's Certificate ..................................................... 32
Operating Statement Analysis .............................................. 32
Opinion of Counsel ........................................................ 32
OTS ....................................................................... 32
Ownership Interest ........................................................ 32
Pass-Through Rate ......................................................... 33
Payment Adjustment Date ................................................... 33
Payment Priority .......................................................... 33
Penalty Charges ........................................................... 34
Percentage Interest ....................................................... 34
Permitted Investments ..................................................... 34
Permitted Transferee ...................................................... 36
Person .................................................................... 36
Plan ...................................................................... 36
Prepayment Assumption ..................................................... 36
Prepayment Interest Excess ................................................ 36
Prepayment Interest Shortfall ............................................. 36
Prepayment Premium ........................................................ 37
Primary Servicing Office .................................................. 37
Principal Balance Certificate ............................................. 37
Principal Distribution Amount ............................................. 37
Principal Prepayment ...................................................... 37
Proposed Plan ............................................................. 37
v
<PAGE>
Section Page
- ------- ----
Prospectus ................................................................ 37
Purchase Price ............................................................ 37
Qualified Appraiser ....................................................... 38
Qualified Insurer ......................................................... 38
Rated Final Distribution Date ............................................. 38
Rating Agency ............................................................. 38
Realized Loss ............................................................. 38
Record Date ............................................................... 38
Reference Banks ........................................................... 39
Registered Certificates ................................................... 39
Reimbursement Rate ........................................................ 39
REMIC ..................................................................... 39
REMIC I ................................................................... 39
REMIC I Regular Interest .................................................. 39
REMIC I Remittance Rate ................................................... 40
REMIC II .................................................................. 40
REMIC II Regular Interest ................................................. 40
REMIC II Remittance Rate .................................................. 40
REMIC III ................................................................. 41
REMIC III Certificates .................................................... 41
REMIC III Regular Certificate ............................................. 41
REMIC Provisions .......................................................... 41
Rents from Real Property .................................................. 41
REO Acquisition ........................................................... 41
REO Disposition ........................................................... 41
REO Extension ............................................................. 41
REO Loan .................................................................. 42
REO Loan Accrual Period ................................................... 42
REO Property .............................................................. 42
REO Revenues .............................................................. 42
REO Status Report ......................................................... 42
REO Tax ................................................................... 42
Request for Release ....................................................... 42
Required Appraisal Loan ................................................... 43
Reserve Account ........................................................... 43
Reserve Funds ............................................................. 43
Residual Certificate ...................................................... 43
Responsible Officer ....................................................... 43
Securities Act ............................................................ 43
Security Agreement ........................................................ 43
Senior Certificate ........................................................ 43
Servicing Account ......................................................... 43
Servicing Advances ........................................................ 43
Servicing Fees ............................................................ 44
vi
<PAGE>
Section Page
- ------- ----
Servicing Officer ......................................................... 44
Servicing Return Date ..................................................... 44
Servicing Standard ........................................................ 44
Servicing Transfer Event .................................................. 44
Six-Month LIBOR (Formula 1) ............................................... 44
Special Servicer Loan Status Report ....................................... 45
Special Servicer Standby Fee .............................................. 45
Special Servicer Standby Fee Rate ......................................... 45
Special Servicing Fee ..................................................... 45
Special Servicing Fee Rate ................................................ 45
Specially Serviced Mortgage Loan .......................................... 45
Spread Rate ............................................................... 47
Standard & Poor's ......................................................... 47
Startup Day ............................................................... 47
Stated Maturity Date ...................................................... 47
Stated Principal Balance .................................................. 47
Step-Down Loan ............................................................ 48
Subordinated Certificate .................................................. 48
Sub-Servicer .............................................................. 48
Sub-Servicing Agreement ................................................... 48
Tax Returns ............................................................... 48
Transfer .................................................................. 48
Transferee ................................................................ 48
Transferor ................................................................ 48
Trust Fund ................................................................ 48
Trustee ................................................................... 48
Trustee Fee ............................................................... 49
Trustee Fee Rate .......................................................... 49
UCC ....................................................................... 49
UCC Financing Statement ................................................... 49
Uncertificated Accrued Interest ........................................... 49
Uncertificated Distributable Interest ..................................... 49
Uncertificated Notional Amount ............................................ 50
Uncertificated Principal Balance .......................................... 50
Uninsured Cause ........................................................... 51
United States Person ...................................................... 51
USPAP ..................................................................... 51
Voting Rights ............................................................. 51
Workout Fee ............................................................... 51
Workout Fee Rate .......................................................... 51
1.02. Certain Calculations in Respect of the Mortgage Pool ........ 51
ARTICLE II
vii
<PAGE>
Section Page
- ------- ----
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
2.01. Conveyance of Mortgage Loans ..................................... 53
2.02. Acceptance by Trustee ............................................ 55
2.03. Mortgage Loan Sellers' Repurchase of Mortgage Loans for Defects in
Mortgage Files and Breaches of Representations and Warranties .... 57
2.04. Issuance of Class R-I Certificates; Creation of REMIC I Regular
Interests ........................................................ 58
2.05. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II
by the Trustee ................................................... 58
2.06. Issuance of Class R-II Certificates .............................. 58
2.07. Conveyance of REMIC II Regular Interests; Acceptance of REMIC
III by Trustee ................................................... 59
2.08. Issuance of REMIC III Certificates ............................... 59
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
3.01. Servicing and Administration of the Mortgage Loans ............... 60
3.02. Collection of Mortgage Loan Payments ............................. 61
3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts ......................................................... 61
3.04. Certificate Account .............................................. 63
3.05. Permitted Withdrawals From the Certificate Account and the
Distribution Account ............................................. 66
3.06. Investment of Funds in the Certificate Account and the Distribution
Account .......................................................... 69
3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity
Coverage ......................................................... 71
3.08. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing ............................................ 73
3.09. Realization Upon Defaulted Mortgage Loans ........................ 74
3.10. Trustee to Cooperate; Release of Mortgage Files .................. 77
3.11. Servicing Compensation ........................................... 78
3.12. Inspections; Collection of Financial Statements .................. 82
3.13. Annual Statement as to Compliance ................................ 83
3.14. Reports by Independent Public Accountants ........................ 83
3.15. Access to Certain Information .................................... 84
3.16. Title to REO Property ............................................ 84
viii
<PAGE>
Section Page
- ------- ----
3.17. Management of REO Property ....................................... 85
3.18. Sale of Defaulted Mortgage Loans and REO Properties .............. 88
3.19. Additional Obligations of the Master Servicer .................... 91
3.20. Modifications, Waivers, Amendments and Consents .................. 93
3.21. Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping ................................................... 96
3.22. Sub-Servicing Agreements ......................................... 97
3.23. Designation of Special Servicer by the Majority Certificateholder of
the Controlling Class ............................................ 99
3.24. Extension Adviser; Elections ..................................... 100
3.25. Limitation on Liability of Extension Adviser ..................... 101
3.26. Duties of Extension Adviser ...................................... 101
3.27. Special Servicer to Cooperate with the Extension Adviser ......... 102
3.28. Representations and Warranties of the Master Servicer ............ 102
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
4.01. Distributions .................................................... 104
4.02. Statements to Certificateholders; Certain Reports by the Master
Servicer and the Special Servicer ................................ 119
4.03. Delinquency Advances ............................................. 127
4.04. Allocation of Realized Losses and Additional Trust Fund Expenses . 129
ARTICLE V
THE CERTIFICATES
5.01. The Certificates ................................................. 131
5.02. Registration of Transfer and Exchange of Certificates ............ 131
5.03 Book-Entry Certificates .......................................... 137
5.04. Mutilated, Destroyed, Lost or Stolen Certificates ................ 138
5.05. Persons Deemed Owners ............................................ 138
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
6.01. Liability of the Depositor, the Master Servicer and the Special
Servicer.......................................................... 139
ix
<PAGE>
Section Page
- ------- ----
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 ......................................................... 139
6.03. Limitation on Liability of the Depositor, the Master Servicer, the
Special Servicer and Others ...................................... 140
6.04. Depositor, Master Servicer and Special Servicer Not to Resign .... 141
6.05. Rights of the Depositor in Respect of the Master Servicer and the
Special Servicer ................................................. 141
ARTICLE VII
DEFAULT
7.01. Events of Default ................................................ 142
7.02. Trustee to Act; Appointment of Successor ......................... 144
7.03. Notification to Certificateholders ............................... 145
7.04. Waiver of Events of Default ...................................... 145
ARTICLE VIII
CONCERNING THE TRUSTEE
8.01. Duties of Trustee ................................................ 147
8.02. Certain Matters Affecting the Trustee ............................ 148
8.03. Trustee Not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans ................................................... 149
8.04. Trustee May Own Certificates ..................................... 150
8.05. Fees and Expenses of Trustee; Indemnification of Trustee ......... 150
8.06. Eligibility Requirements for Trustee ............................. 150
8.07. Resignation and Removal of the Trustee ........................... 151
8.08. Successor Trustee ................................................ 152
8.09. Merger or Consolidation of Trustee ............................... 152
8.10. Appointment of Co-Trustee or Separate Trustee .................... 153
8.11 Appointment of Custodians ........................................ 154
8.12 Access to Certain Information .................................... 154
8.13. Representations and Warranties of the Trustee .................... 156
8.14. Filings with the Securities and Exchange Commission .............. 156
8.15. Massachusetts Filings ............................................ 157
ARTICLE IX
x
<PAGE>
Section Page
- ------- ----
TERMINATION
9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans ............................................................ 158
9.02. Additional Termination Requirements .............................. 159
ARTICLE X
ADDITIONAL REMIC PROVISIONS
10.01. REMIC Administration ............................................. 161
10.02. Depositor, Master Servicer, Special Servicer and Trustee to
Cooperate ........................................................ 164
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01. Amendment ........................................................ 165
11.02. Recordation of Agreement; Counterparts ........................... 167
11.03. Limitation on Rights of Certificateholders ....................... 167
11.04. GOVERNING LAW .................................................... 168
11.05. Notices .......................................................... 168
11.06. Severability of Provisions ....................................... 169
11.07. Grant of a Security Interest ..................................... 169
11.08. Successors and Assigns; Beneficiaries ............................ 170
11.09. Article and Section Headings ..................................... 170
11.10. Notices to the Rating Agencies ................................... 170
xi
<PAGE>
EXHIBITS
Exhibit A-1 Form of Class X-1 Certificate
Exhibit A-2 Form of Class X-2 Certificate
Exhibit A-3 Form of Class A-1 Certificate
Exhibit A-4 Form of Class A-2A Certificate
Exhibit A-5 Form of Class A-2B Certificate
Exhibit A-6 Form of Class B Certificate
Exhibit A-7 Form of Class C Certificate
Exhibit A-8 Form of Class D Certificate
Exhibit A-9 Form of Class E Certificate
Exhibit A-10 Form of Class F Certificate
Exhibit A-11 Form of Class G Certificate
Exhibit A-12 Form of Class H Certificate
Exhibit A-13 Form of Class R-I Certificate
Exhibit A-14 Form of Class R-II Certificate
Exhibit A-15 Form of Class R-III Certificate
Exhibit B-1 Form of Transferor Certificate
Exhibit B-2 Form of Transferee Certificate
Exhibit B-3 Form of Transferee Certificate
Exhibit C-1 Form of Transfer Affidavit and Agreement
Exhibit C-2 Form of Transferor Certificate
Exhibit D Form of Delinquent Loan Status Report
Exhibit E Form of Historical Loan Modification Report
Exhibit F Form of Historical Loss Report
Exhibit G Form of REO Status Report
Exhibit H Form of Request for Release
Exhibit I Form of Special Servicer Loan Status Report
Exhibit J Form of Section 4.02 Information and Reports
Exhibit K Form of UCC-1 Financing Statement
<PAGE>
This Pooling and Servicing Agreement (this "Agreement"), is
dated and effective as of November 1, 1996, among GMAC COMMERCIAL MORTGAGE
SECURITIES, INC., as Depositor, GMAC COMMERCIAL MORTGAGE CORPORATION, as Master
Servicer, GMAC COMMERCIAL MORTGAGE CORPORATION, as Special Servicer, and STATE
STREET BANK AND TRUST COMPANY, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, to be issued
hereunder in multiple Classes, which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund to be created hereunder, the
primary assets of which will be the Mortgage Loans. The aggregate of the initial
Stated Principal Balances of the Mortgage Loans is approximately $456,736,394.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Mortgage Loans 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 of
Mortgage Loans attached hereto as Schedule I. The REMIC I Remittance Rate and
the initial Uncertificated Principal Balance of each such REMIC I Regular
Interest shall equal the Net Mortgage Rate from time to time (calculated in
accordance with the terms of the related Mortgage Note as in effect on the
Closing 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, the 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
- ----------- --------------- -----------------
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X-1 Variable(1) N/A(2)
LG1 Variable(1) $33,475,146.00
LG2 Variable(1) $423,261,248.00
A-1 Variable(1) $33,475.15
A-2A 6.79% $190,267.00
A-2B 7.22% $71,963.00
B 7.34% $31,978.00
C 7.43% $26,268.00
D 7.73% $27,409.00
E 7.86% $13,705.00
F 7.86% $22,841.00
G 5.70% $19,415.00
H 5.70% $19,415.20
- --------------------
(1) Calculated in accordance with the definition of "REMIC II Remittance
Rate".
(2) REMIC II Regular Interest X-1 does not have an Uncertificated Principal
Balance and will accrue interest on an Uncertificated Notional Amount that
is equal to the aggregate Uncertificated Principal Balance of the REMIC I
Regular Interests relating to the Group 1 Loans outstanding from time to
time.
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.
<PAGE>
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Initial Class
Designation Pass-through Rate Principal Balance
- ----------- ----------------- -----------------
Class X-1 N/A(3)(1) N/A(1)
Class X-2 Variable(2) N/A(3)
Class A-1 Variable(2) $ 33,475,146
Class A-2A 6.7900% 190,267,000
Class A-2B 7.2200% 71,963,000
Class B 7.3400% 31,978,000
Class C 7.4300% 26,268,000
Class D 7.7300% 27,409,000
Class E 7.8600% 13,705,000
Class F 7.8600% 22,841,000
Class G 5.7000% 19,415,000
Class H 5.7000% 19,415,204
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(1) The Class X-1 Certificates do not have a Class Principal Balance or a
Pass-Through Rate. Such Certificates shall be entitled to 100% of the
Uncertificated Accrued Interest in respect of REMIC II Regular Interest
X-1, subject to such adjustments as are contemplated by the definition
of "Uncertificated Distributable Interest".
(2) Calculated in accordance with the definition of "Pass-Through Rate".
(3) The Class X-2 Certificates do not have a Class Principal Balance and
will accrue interest on a Class Notional Amount that is equal to the
aggregate of the Uncertificated Principal Balances of REMIC II Regular
Interests LG1 and LG2 outstanding from time to time (rounded to the
nearest whole dollar in the case of the initial Class Notional Amount
of the Class X-2 Certificates on the Closing Date).
Capitalized terms used in this Preliminary Statement are
defined in Article I hereof.
In consideration of the mutual agreements herein contained,
the Depositor, the Master Servicer, the Special Servicer and the Trustee agree
as follows:
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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-1 Certificates), for any
Distribution Date, one month's (or, in the case of the Class A-1 Certificates
for the initial Distribution Date, 38 days') interest (calculated on the basis
of a 360-day year consisting of twelve 30-day months) at the PassThrough Rate
applicable to such Class of Certificates for such Distribution Date, accrued on
the Class Principal Balance or Class Notional Amount, as the case may be, of
such Class of Certificates outstanding immediately prior to such Distribution
Date. With respect to the Class X-1 Certificates, for any Distribution Date,
100% of the Uncertificated Accrued Interest in respect of REMIC II Regular
Interest X-1 for such Distribution Date. The Accrued Certificate Interest in
respect of any Class of REMIC III Regular Certificates for any Distribution Date
shall be deemed to have accrued during the applicable Interest Accrual Period.
"Acquisition Date": With respect to any REO Property, the
first day on which such REO Property is considered to be acquired by the Trust
Fund within the meaning of Treasury Regulation Section 1.856-6(b)(1), which is
the first day on which the Trust Fund is treated as the owner of such REO
Property for federal income tax purposes.
"Additional Trust Fund Expense": Any expense experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss, that would result in the REMIC III Regular Certificateholders'
receiving less than the full amount of principal and/or interest to which they
are entitled on any Distribution Date.
"Adjustable Rate Mortgage Loan": A Mortgage Loan as to which
the related Mortgage Note provides, as of the Closing Date, for periodic
adjustments to the Mortgage Rate thereon based on changes in the related Index.
"Adjustment Date": With respect to each Adjustable Rate
Mortgage Loan, any date on which the Mortgage Rate thereon is subject to
adjustment pursuant to the related Mortgage Note. The first Adjustment Date
following the Cut-off Date as to each Adjustable Rate Mortgage Loan is set forth
in the Mortgage Loan Schedule. Successive Adjustment Dates will occur as to each
Adjustable Rate Mortgage Loan with the frequency specified in the Mortgage Loan
Schedule.
"Advance": Any Delinquency Advance or Servicing Advance.
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"Advance Interest": Interest accrued on any Advance at the
Master Servicer Reimbursement Rate and payable to the Master Servicer, the
Special Servicer or the Trustee, as the case may be, all in accordance with
Section 3.11(f) or Section 4.03(d), as applicable.
"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.
"Aggregate Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the Principal Distribution Amounts for both
Loan Groups for such Distribution Date.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Applicable State Law": For purposes of Article X, the
Applicable State Law shall be (a) the laws of the state 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 $1,000,000; or (ii) a limited appraisal and a summary
report of the "market value" of the Mortgaged Property, as defined in 12 CFR
ss.225.62(g), conducted by a Qualified Appraiser in the case of Mortgage Loans
and REO Loans with a Stated Principal Balance as of the date of such appraisal
of $1,000,000 or less.
"Appraisal Reduction Amount": With respect to any Required
Appraisal Loan, an amount (as calculated on the Determination Date immediately
succeeding the date on which the most recent relevant Appraisal was obtained by
the Master Servicer or the Special Servicer, as the case may be, pursuant to
this Agreement) equal to the excess, if any, of (a) the sum of (i) the Stated
Principal Balance of such Required Appraisal Loan, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer or the Trustee, all
accrued and unpaid interest on such Required Appraisal Loan through the most
recent Due Date prior to such Determination Date at a per annum rate equal to
the related Mortgage Rate, (iii) all related unreimbursed
<PAGE>
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Advances made by or on behalf of the Master Servicer, the Special Servicer or
the Trustee in respect of such Required Appraisal Loan, together with all unpaid
Advance Interest accrued on such Advances, and (iv) all currently due but unpaid
real estate taxes and assessments, insurance premiums and, if applicable, ground
rents in respect of the related Mortgaged Property or REO Property, net of any
Escrow Payments or other reserves held by the Master Servicer or the Special
Servicer with respect to any such item, over (b) 90% of an amount equal to (i)
the Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by such Appraisal referred to in the parenthetical
above, net of (ii) the amount of any liens on such property (not accounted for
in clause (a)(iv) of this definition) that are prior to the lien of the Required
Appraisal Loan.
"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.
"Assignment of Leases": With respect to any Mortgaged
Property, any assignment of leases, rents 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 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
Mortgage Loan remains outstanding and part of the Trust Fund, if no Monthly
Payment (other than the related delinquent 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 such Due Date equal to the Monthly Payment that would
have been due in respect of such Mortgage Loan on such Due Date if it had been
required to continue to accrue interest in accordance with its terms, and to pay
principal in accordance with the amortization schedule (if any), in effect
immediately prior to, and without regard to the occurrence of, its most recent
scheduled maturity date. With respect to any REO Loan, for any Due Date therefor
as of which 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) that was due in respect of the related
Mortgage Loan for the last Due Date prior to its becoming an REO Loan.
"Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the aggregate amount
relating to the Trust Fund on deposit in the Certificate Account and the
Distribution Account as of the close of business on the related Determination
Date, (ii) the aggregate amount of any Delinquency Advances made by the Master
Servicer or Trustee for such Distribution Date pursuant to Section 4.03, (iii)
the aggregate of
<PAGE>
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any Compensating Interest Payments made by the Master Servicer for such
Distribution Date pursuant to Section 3.19, and (iv) in the case of the Final
Distribution Date, the aggregate of any Liquidation Proceeds paid by the Master
Servicer or the Depositor in connection with a purchase of all the Mortgage
Loans and any REO Properties pursuant to Section 9.01, 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) - (v), inclusive, of Section 3.05(b), (iv) Prepayment Premiums, or (v) any
amounts deposited in the Certificate Account or the Distribution Account, as the
case may be, in error. 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 after the first day
of, but on or before the Determination Date in, any calendar month, the amount
of interest (net of related Master Servicing Fees and Special Servicing Fees)
accrued on such Mortgage Loan from the beginning of such month to, but not
including, such Stated Maturity Date, to the extent such interest is actually
paid by the related Mortgagor in connection with the payment of the related
Balloon Payment during the Collection Period in which such Stated Maturity Date
occurs.
"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, the amount of interest that would have
accrued on such Mortgage Loan at the related Net Mortgage Rate from such Stated
Maturity Date through the end of such calendar month, 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).
"Breach": As defined in Section 2.03(a).
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
<PAGE>
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"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, and the cities in which
the Primary Servicing Offices of the Master Servicer and the Special Servicer
and the city in which the Corporate Trust Office of the Trustee is located, are
authorized or obligated by law or executive order to remain closed.
"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 1996-C1, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Account": The custodial account or accounts
created and maintained pursuant to Section 3.04(a) in the name of a depository
institution, as custodian for the holders of the Certificates, for the holders
of certain other interests in mortgage loans serviced or sold by the Master
Servicer and for the Master Servicer, into which the amounts set forth in
Section 3.04(a) shall be deposited directly. Any such account or accounts shall
be an Eligible Account.
"Certificate Factor": With respect to any Class of REMIC III
Regular Certificates, as of any date of determination, a fraction, expressed as
a decimal carried to eight places, the numerator of which is the then related
Class Principal Balance, the Class Notional Amount or Effective Class Notional
Amount, as the case may be, and the denominator of which is the related Initial
Class Principal Balance, the Initial Class Notional Amount or Initial Effective
Class Notional Amount, as the case may be.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Master Servicer, the
Special Servicer, the Trustee, the Depositor or any Affiliate of either shall be
deemed not to be outstanding, and the Voting Rights to which it is entitled
shall not be taken into account in determining whether the requisite percentage
of Voting Rights necessary to effect any such consent, approval or waiver has
been obtained, except as otherwise provided in Sections 7.04 and 11.01. The
Trustee shall be entitled to request and rely upon a certificate of the Master
Servicer, the Special Servicer or the Depositor in determining whether a
Certificate is registered in the name of an Affiliate of such Person. All
references herein to "Holders" or "Certificateholders" shall reflect the rights
of Certificate Owners as they may indirectly exercise such rights through the
Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certificateholder Reports": As defined in Section 4.02(a).
<PAGE>
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"Certificate Notional Amount": With respect to any 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-2 Certificates.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to any Principal
Balance Certificate, as of any date of determination, the then outstanding
principal amount of such Certificate equal to the product of (a) the Percentage
Interest evidenced by such Certificate, multiplied by (b) the then Class
Principal Balance of the Class of Certificates to which such Certificate
belongs.
"Certificate Register" and "Certificate Registrar": The
register maintained and registrar appointed pursuant to Section 5.02.
"Class": Collectively, all of the Certificates bearing the
same alphabetical and, if applicable, numerical class designation.
"Class A Certificate": Any one of the Class A-1, Class A-2A or
Class A-2B Certificates.
"Class A-1 Certificate": Any one of the Certificates with a
"Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class A-2A Certificate": Any one of the Certificates with a
"Class A-2A" 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-2B Certificate": Any one of the Certificates with a
"Class A-2B" 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.
<PAGE>
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"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 Notional Amount": The aggregate notional principal
amount on which the Class X-2 Certificates accrue interest from time to time
which, as of any date of determination, is equal to the then aggregate of the
Uncertificated Principal Balances of REMIC II Regular Interest LG1 and REMIC II
Regular Interest LG2 (rounded to the nearest whole dollar in the case of the
Initial Class Notional Amount of the Class X-2 Certificates as of the Closing
Date).
"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-13 attached hereto, and evidencing the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions.
"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-14 attached hereto, and evidencing the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
<PAGE>
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"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-15 attached hereto, and evidencing the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Class X-1 or 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, and evidencing a "regular interest" 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, and evidencing a "regular interest" in REMIC III for purposes of
the REMIC Provisions.
"Class X-2 Share": When used to describe a portion of the
Uncertificated Accrued Interest in respect of either REMIC II Regular Interest
LG1 or REMIC II Regular Interest LG2 for any Distribution Date, that portion
thereof equal to one month's interest (calculated on the basis of a 360-day year
consisting of twelve 30-day months) on the Uncertificated Principal Balance of
such REMIC II Regular Interest immediately prior to such Distribution Date at a
per annum rate equal to, in the case of each Distribution Date, the excess, if
any, of (i) the weighted average of the REMIC II Remittance Rates applicable to
REMIC II Regular Interests LG1 and LG2 for such Distribution Date (weighted on
the basis of the respective Uncertificated Principal Balances of such REMIC II
Regular Interests immediately prior to such Distribution Date), over (ii) the
weighted average of the REMIC II Remittance Rates applicable to REMIC II Regular
Interests A-1, A-2A, A-2B, B, C, D, E, F, G and H for such Distribution Date
(weighted on the basis of the respective Uncertificated Principal Balances of
such REMIC II Regular Interests immediately prior to such Distribution Date).
When used to describe a portion of the Uncertificated Distributable Interest in
respect of either REMIC II Regular Interest LG1 or REMIC II Regular Interest LG2
for any Distribution Date, that portion thereof equal to: (a) the Class X-2
Share of the Uncertificated Accrued Interest in respect of such REMIC II Regular
Interest for such Distribution Date; reduced (to not less than zero) by (b) that
portion of the Net Aggregate Prepayment Interest Shortfall, if any, for such
Distribution Date allocable in respect of such REMIC II Regular Interest
specifically in reduction of the Class X-2 Share of its Uncertificated
Distributable Interest for such Distribution Date; and increased by (c), in the
case of any Distribution Date subsequent to the initial Distribution Date, the
excess, if any, of (i) the Class X-2 Share of the Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for the prior Distribution
Date, over (ii) 1,000 times the aggregate distributions of interest made in
respect of such REMIC II Regular Interest on the prior Distribution Date
pursuant to clause (i) of the first paragraph of Section 4.01(a).
"Closing Date": November 7, 1996.
"Code": The Internal Revenue Code of 1986.
<PAGE>
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"Collection Period": With respect to any Distribution Date,
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) 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 3.19(f) to cover Prepayment
Interest Shortfalls or Section 3.19(e) to cover Balloon Payment Interest
Shortfalls.
"ContiTrade": ContiTrade Services L.L.C. or its successor in
interest.
"Conti Guarantor": ContiFinancial Corporation or its successor
in interest.
"Conti Guarantor Agreement": The Guaranty Agreement dated as
of October 30, 1996, from the Conti Guarantor in favor of the Depositor and
certain other specified beneficiaries.
"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 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 then largest
remaining Class Principal Balance). Initially, the Controlling Class will
consist of the Class H 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 Two International Place, 5th Floor,
Boston, Massachusetts 02110, Attention: Corporate Trust Dept.; Ref. GMAC
1996-C1.
"Corrected Mortgage Loan": Any 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).
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"CPR": An assumed constant rate of prepayment each month
(which is quoted on a per annum basis) relative to the then outstanding
principal balance of a pool of mortgage loans for the life of such mortgage
loans.
"Credit File": Any documents, other than documents required to
be part of the related Mortgage File, in the possession of the Master Servicer
or Special Servicer and relating to the origination and servicing of any
Mortgage Loan.
"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
either Loan Group for any Distribution Date, an amount equal to the aggregate
of:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due,
as the case may be, in respect of the Mortgage Loans and any REO Loans
constituting such Loan Group for their respective Due Dates occurring
during the related Collection Period;
(b) all Principal Prepayments received on the Mortgage Loans
in such Loan Group during the related Collection Period;
(c) with respect to any Balloon Mortgage Loan in such Loan
Group as to which the related Stated Maturity 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
Balloon Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered;
(d) that portion of all Liquidation Proceeds and Insurance
Proceeds received on or in respect of the Mortgage Loans in such Loan
Group 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 related Collection Period and not previously
recovered; and
(e) that portion of all 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
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of the REO Loans in such Loan Group, 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 the related Collection Period and not previously recovered.
"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, the Mortgage Loan Seller or an
Affiliate of either of them.
"Cut-off Date": November 1, 1996.
"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 for any twelve month period (or such shorter period calculated on an
annualized basis) covered by an annual or quarterly operating statement or an
operating statement for a partial year for the related Mortgaged Property, the
ratio of Net Operating Income produced by the related Mortgaged Property during
such period to the aggregate amount of Monthly Payments (other than any Balloon
Payment) due under such Mortgage Loan during such period.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, other than a
reduction resulting from a Deficient Valuation.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent
in an amount equal to at least two Monthly Payments or is delinquent thirty days
or more in respect of its Balloon Payment, if any, in either case such
delinquency to be determined without giving effect to any grace period permitted
by the related Mortgage or Mortgage Note and without regard to any acceleration
of payments under the related Mortgage and Mortgage Note.
"Default Interest": With respect to any Mortgage Loan (or
related REO Loan), any amounts collected thereon, other than 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.
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding
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principal balance of the Mortgage Loan, which valuation results from a
proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquency Advance": As to any Mortgage Loan or REO Loan,
any advance made by the Master Servicer or the Trustee pursuant to Section 4.03.
"Delinquency Advance Date": The second Business Day preceding
each Distribution Date.
"Delinquent Loan Status Report": A report or reports setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the immediately preceding Determination Date, were (i) delinquent
30-59 days, (ii) delinquent 60-89 days, (iii) delinquent 90 days or more, (iv)
current but specially serviced, (v) in foreclosure but as to which the related
Mortgaged Property had not become REO Property, or (vi) related to Mortgaged
Property which had become REO Property, together with such additional
information in respect of each such Mortgage Loan as is contemplated on Exhibit
D hereto.
"Depositor": GMAC Commercial Mortgage Securities, Inc. or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended.
"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.
"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 preceding.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers, the performance of any construction work thereon or any use
of such REO Property in a trade or business conducted by REMIC I 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)
<PAGE>
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establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such REO Property.
"Discount Rate": With respect to any Class of Registered
Certificates, the rate determined by the Trustee, in its good faith, in
connection with the voluntary or involuntary prepayment of any Mortgage Loan, to
be the yield (interpolated and rounded to the nearest one-thousandth of a
percent, if necessary) in the secondary market for United States Treasury
securities with a maturity closest to the earlier of (i) the then scheduled
maturity of such Mortgage Loan and (ii) the last Distribution Date on which
principal or, in the case of the Class X Certificates, interest was to be paid
in respect of such Class of Certificates (without taking into account the
related principal prepayment but giving effect to all prior principal
prepayments). Such determination is to be made by assuming no future prepayments
on or in respect of the Mortgage Loans during, and by otherwise applying the
Maturity Assumptions to, the period subsequent to the end of the Collection
Period in which the related prepayment was received.
"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: FIRST, to the respective Classes
of Principal Balance Certificates (other than the Class A Certificates),
sequentially in reverse alphabetical order of Class designation, in each case up
to the amount of any Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date; and THEREAFTER, among the respective
Classes of Senior 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 "State Street Bank and Trust
Company, as Trustee, in trust for the registered holders of GMAC Commercial
Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series 1996-C1".
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 December 1996.
"Distribution Date Statement": As defined in Section 4.02(a).
"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
<PAGE>
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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.
"Effective Certificate Notional Amount": With respect to any
Class X-1 Certificate, as of any date of determination, the then notional
principal amount on which such Certificate indirectly accrues interest equal to
the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Effective Class Notional Amount of the Class X-1
Certificates.
"Effective Class Notional Amount": The aggregate notional
principal amount on which the Class X-1 Certificates indirectly accrue interest
from time to time, which, as of any date of determination, is equal to the then
aggregate Stated Principal Balance of the Group 1 Loans.
"Effective Pass-Through Rate": With respect to the Class X-1
Certificates, for any Distribution Date, the REMIC II Remittance Rate applicable
to REMIC II Regular Interest X-1 for such Distribution Date.
"Effective REMIC I Remittance Rate": With respect to any REMIC
I Regular Interest, for any Distribution Date, (a) if the Mortgage Note for the
related Mortgage Loan or REO Loan provides that interest accrues on such
Mortgage Loan or REO Loan, as the case may be, on the basis of a 360-day year
consisting of twelve 30-day months (a"30/360 basis"), the related REMIC I
Remittance Rate in effect for such REMIC I Regular Interest for such
Distribution Date, and (b) if the Mortgage Note for the related Mortgage Loan or
REO Loan provides that interest accrues on such Mortgage Loan or REO Loan, as
the case may be, other than on a 30/360 basis, the annualized rate at which
interest would have to accrue thereon on a 30/360 basis during the applicable
Interest Accrual Period for such REMIC I Remittance Rate and such Distribution
Date in order to produce the actual amount of Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest for such Distribution Date.
"Eligible Account": An account that is any of the following:
(i) maintained with a depository institution whose (A) commercial paper,
short-term unsecured debt obligations or other short-term deposits are rated at
least A1 by Standard & Poor's and P-1 by Moody's, if the deposits are to be held
in the account for less than 30 days, or (B) long-term unsecured debt
obligations are rated at least AA- by Standard & Poor's and 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 corporate 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
<PAGE>
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not result in the downgrade, qualification or withdrawal of the rating then
assigned to any Class of Certificates by such Rating Agency.
"Emergency Advance:" Any Servicing Advance that must be made
within five Business Days by the Special Servicer in order to avoid any material
penalty, any material harm to a Mortgaged Property or any other material adverse
consequence to the Trust Fund.
"Environmental Assessment": A "Phase I assessment" conducted
in accordance with ASTM Standard E 1527-93 or any successor thereto published by
ASTM.
"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).
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Extension Adviser": As defined in Section 3.24(a).
"FDIC": Federal Deposit Insurance Corporation or any
successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any
successor.
"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, by the Conti Guarantor pursuant to the Conti Guaranty Agreement, by
the Majority Certificateholder of a Controlling Class pursuant to Section
3.18(b) or by the Master Servicer or the Special Servicer pursuant to Section
3.18(c) or by the Master Servicer or the Depositor pursuant to Section 9.01)
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.
"Final Distribution Date": The final Distribution Date on
which any distributions are to be made on the Certificates as contemplated by
Section 9.01.
"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
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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.
"Formula 1 LIBOR Business Day": Each day on which commercial
banks are open for domestic and international business (including dealings in
U.S. Dollar deposits) in London and New York City.
"Formula 1 LIBOR Determination Date": The day that is two
Formula 1 LIBOR Business Days prior to the first day of each LIBOR Reference
Period.
"GMACCM": GMAC Commercial Mortgage Corporation or its
successor in interest.
"Gross Margin": With respect to each Adjustable Rate Mortgage
Loan (and any successor REO Loan), the fixed number of percentage points set
forth in the Mortgage Loan Schedule that is added to the applicable value of the
related Index on each Interest Rate Adjustment Date in accordance with the terms
of the related Mortgage Note to determine, subject to any applicable periodic
and lifetime limitations on adjustments thereto, the related Mortgage Rate.
"Ground Lease": The ground lease pursuant to which any
Mortgagor holds a leasehold interest in the related Mortgaged Property.
"Group 1 Certificates": The Class X-1 and Class A-1
Certificates.
"Group 1 Loan": Any Mortgage Loan (or related REO Loan) in
Loan Group 1.
"Group 2 Certificates": The Class X-2, Class A-2A, Class A-2B,
Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates.
"Group 2 Loan": Any Mortgage Loan (or related REO Loan) in
Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including, without
limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"), radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory", "usable work
in process" or similar classification which would, if classified as unusable, be
included in the foregoing definition.
"Historical Loan Modification Report": A report or reports
setting forth, among other things, those Mortgage Loans which, as of the close
of business on the immediately
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preceding Determination Date, have been modified pursuant to this Agreement (i)
during the Collection Period ending on such Determination Date and (ii) since
the Cut-off Date, showing the original and the revised terms thereof, together
with such additional information in respect of each such Mortgage Loan as is
contemplated by Exhibit E hereto.
"Historical Loss Report": A report or reports setting forth,
among other things, as of the close of business on the immediately preceding
Determination Date, (i) the amount of Liquidation Proceeds and Liquidation
Expenses, both for the Collection Period ending on such Determination Date and
for all prior Collection Periods, and (ii) the amount of Realized Losses
occurring during such Collection Period and historically, set forth on a
Mortgage Loan-byMortgage Loan and REO Property-by-REO Property basis, together
with such additional information in respect of each Mortgage Loan and REO
Property as to which a Final Recovery Determination has been made as is
contemplated by Exhibit F hereto.
"Independent": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee and any and all Affiliates thereof,
(ii) does not have any direct financial interest in or any material indirect
financial interest in any of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or any Affiliate thereof, and (iii) is not connected with
the Depositor, the Master Servicer, the Special Servicer, the Trustee or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, the Master
Servicer, the Special Servicer or any Affiliate thereof merely because such
Person is the beneficial owner of 1% or less of any class of securities issued
by the Depositor, the Master Servicer or any Affiliate thereof, as the case may
be.
"Independent Contractor": Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by any Person that owns, directly or indirectly, 35 percent or more of any Class
of Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust Fund, delivered to the Trustee), so long as REMIC I does not receive
or derive any income from such Person and provided that the relationship between
such Person and REMIC I is at arm's length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust Fund, 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, or cause any income realized in
respect of such REO Property to fail to qualify as Rents from Real Property.
"Index": With respect to each Adjustable Rate Mortgage Loan
(and any successor REO Loan), for each Interest Rate Adjustment Date, the base
index used to determine the new
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Mortgage Rate in effect thereon as specified in the related Mortgage Note. If
the Index currently in effect for any Adjustable Rate Mortgage Loan (or
successor REO Loan) ceases to be available, the Master Servicer shall, subject
to Section 3.19 and the terms of the related Mortgage Note, select a comparable
alternative index.
"ING": ING (U.S.) Capital Corporation or its successor in
interest.
"Initial Class Notional Amount": With respect to the Class X-2
Certificates, the initial Class Notional Amount thereof as of the Closing Date,
equal to $456,279,658.
"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 below:
Initial Class
Class Principal Balance
----- -----------------
Class A-1 $ 33,475,146
Class A-2A $190,267,000
Class A-2B $ 71,963,000
Class B $ 31,978,000
Class C $ 26,268,000
Class D $ 27,409,000
Class E $ 13,705,000
Class F $ 22,841,000
Class G $ 19,415,000
Class H $ 19,415,204
"Initial Effective Class Notional Amount": With respect to the
Class X-1 Certificates, the Initial Effective Class Notional Amount thereof as
of the Closing Date, equal to $33,475,146.
"Initial Loan Group 1 Balance": The aggregate Cut-off Date
Principal Balance of Loan Group 1.
"Initial Loan Group 2 Balance": The aggregate Cut-off Date
Principal Balance of Loan Group 2.
"Insurance Policy": With respect to any Mortgage Loan, any
hazard insurance policy, flood insurance policy, title 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
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to the Mortgagor, in either case, in accordance with the Master Servicer's or
Special Servicer's, as the case may be, normal servicing procedures.
"Interest Accrual Period": With respect to any Distribution
Date; (i) in the case of the Class A-1 Certificates, the period that begins on
the 15th day of the calendar month preceding the month in which such
Distribution Date occurs (or, in the case of the initial Distribution Date, that
begins on the Closing Date) and ends on the 14th day of the calendar month in
which such Distribution Date occurs; and (ii) in the case of each other Class of
REMIC III Regular Certificates, and in the case of each REMIC I Regular Interest
and REMIC II Regular Interest, the calendar month immediately preceding the
month in which such Distribution Date occurs.
"Interest Only Certificate": Any Class X-1 or Class X-2
Certificate.
"Interest Rate Adjustment Date": With respect to each
Adjustable Rate Mortgage Loan (and any successor REO Loan), any date on which
the related Mortgage Rate is subject to adjustment pursuant to the related
Mortgage Note. The first Interest Rate Adjustment Date subsequent to the Cut-off
Date for each Adjustable Rate Mortgage Loan is specified in the Mortgage Loan
Schedule, and successive Interest Rate Adjustment Dates for such Mortgage Loan
(and any successor REO Loan) shall thereafter periodically occur with the
frequency specified in the Mortgage Loan Schedule.
"Interested Person": The Depositor, the Master Servicer, the
Special Servicer, any Holder of a Certificate, or any Affiliate of any such
Person.
"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 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 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.
"LIBOR": With respect to each Distribution Date, the value of
Six-Month LIBOR (Formula 1) on the most recent Formula 1 LIBOR Determination
Date preceding the
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commencement of the Interest Accrual Period applicable to the Class A-1
Certificates for such Distribution Date.
"LIBOR Reference Period": Each successive six-month calendar
period, commencing on the first day of April and October of each year and ending
on the day preceding the next LIBOR Reference Period.
"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 by a Mortgage Loan Seller pursuant to Section 6 of
the related Mortgage Loan Purchase Agreement or by the Conti Guarantor pursuant
to the Conti Guaranty Agreement; (iv) such Mortgage Loan is purchased by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(b);
(v) such Mortgage Loan is purchased by the Master Servicer or the Special
Servicer pursuant to Section 3.18(c); or (vi) such Mortgage Loan is purchased by
the Master Servicer or the Depositor pursuant to Section 9.01. With respect to
any REO Property (and the related REO Loan), any of the following events: (i) a
Final Recovery Determination is made with respect to such REO Property; or (ii)
such REO Property is purchased by the Master Servicer pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and
necessary "out of pocket" costs and expenses incurred by the Special Servicer in
connection with the liquidation of any Specially Serviced Mortgage Loan or REO
Property pursuant to Section 3.09 or 3.18 (including, without limitation, legal
fees and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced
Mortgage Loan or REO Property (other than any Specially Serviced Mortgage Loan
or REO Property purchased by the Majority Certificateholder of the Controlling
Class, the Master Servicer or the Special Servicer pursuant to Section 3.18 or
by the Master Servicer or the Depositor pursuant to Section 9.01), the fee
designated as such and payable to the Special Servicer pursuant to Section
3.11(c).
"Liquidation Fee Rate": With respect to each Specially
Serviced Mortgaged Loan or REO Property as to which a Liquidation Fee is
payable, 1%.
"Liquidation Proceeds": Cash amounts (other than Insurance
Proceeds and REO Revenues) received or paid by the Master Servicer or the
Special Servicer in connection with: (i) the taking of all or a part of a
Mortgaged Property by exercise of the power of eminent domain or condemnation;
(ii) the liquidation of a Mortgaged Property or other collateral constituting
security for a defaulted Mortgage Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iv) the
purchase of a Defaulted Mortgage Loan by the Majority Certificateholder
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of the Controlling Class pursuant to Section 3.18(b) or by the Master Servicer
or the Special Servicer pursuant to Section 3.18(c) or any other sale thereof
pursuant to Section 3.18(d); (v) the repurchase of a Mortgage Loan by a Mortgage
Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement or by the Conti Guarantor pursuant to the Conti Guaranty Agreement; or
(vi) the purchase of a Mortgage Loan or REO Property by the Master Servicer or
the Depositor pursuant to Section 9.01.
"Loan Group": Each of Loan Group 1 and Loan Group 2.
"Loan Group 1": Collectively, all of the Adjustable Rate
Mortgage Loans.
"Loan Group 2": Collectively, all of the Fixed Rate Mortgage
Loans and Step- Down Mortgage Loans.
"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.
"Loss Reimbursement Amount": With respect to any REMIC I
Regular Interest and any Distribution Date (except the initial Distribution
Date, with respect to which the Loss Reimbursement Amount for such REMIC I
Regular Interest will be zero), an amount equal to (a)(i) the Loss Reimbursement
Amount with respect to such REMIC I Regular Interest for the immediately
preceding Distribution Date, minus (ii) the aggregate of all reimbursements
deemed made to REMIC II on the immediately preceding Distribution Date pursuant
to Section 4.01(a)(iii) 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 or, if the related Mortgage Loan or REO
Loan accrues interest on a different basis, on such alternative basis) on the
amount described in clause (a) of 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, as the case may be.
"Master Servicer": GMACCM, or any successor master servicer
appointed as herein provided.
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"Master Servicer Remittance Date": The Business Day preceding
each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and
REO Loan, the fee designated as such and payable to the Master Servicer pursuant
to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage
Loan and REO Loan, 0.14% per annum.
"Maturity Assumptions": The assumptions that: (i) the Initial
Loan Group 1 Balance is approximately $33,475,147 and the Initial Loan Group 2
Balance is approximately $423,261,248, (ii) the Class Principal Balances, Class
Notional Amounts, Effective Class Notional Amounts and Pass-Through Rates, as
the case may be, of the respective Classes of REMIC III Regular Certificates are
as provided for herein, (iii) the scheduled Monthly Payments for each Mortgage
Loan are, in the case of each Adjustable Rate Mortgage Loan, equal to the
Monthly Payment in effect as of the Cut-off Date until the next payment
adjustment is scheduled to occur and thereafter based on such Mortgage Loan's
Cut-off Date Principal Balance and stated remaining amortization term as of the
Cut-off Date and the value of the related Index described in clause (v) below,
plus the related Gross Margin, subject to the respective minimum and maximum
Mortgage Rates, and, in the case of each other Mortgage Loan, based on such
Mortgage Loan's Cut-off Date Principal Balance, calculated remaining
amortization terms (or, in the case of those Mortgage Loans that provide for
quarterly payments of principal based on net cash flow from the related
Mortgaged Properties, a 25-year amortization term) and the Mortgage Rate in
effect as of the Cut-off Date (as such may be increased in the case of one
Mortgage Loan), (iv) all Monthly Payments are assumed to be due on the first day
of each month and, with respect to the Step-Down Mortgage Loans, the Mortgage
Rates during the interest-only periods are assumed to be equal to a rate that
would produce an amount of interest equal to its Monthly Payment, (v) the Index
for each Adjustable Rate Mortgage Loan and, accordingly, Six-Month LIBOR
(Formula 1) remains constant at 5.5625% per annum, and for purpose of two of the
Extension Loans (as defined below), the five year Treasury is assumed to be
6.12% per annum, (vi) there are no delinquencies or losses in respect of the
Mortgage Loans, there are no extensions of maturity in respect of the Mortgage
Loans (except in those cases where the borrower may require, subject to the
satisfaction of certain conditions, that an extension occur, in which event the
term of the related Mortgage Loan is extended to the maximum extent permitted
under the related Mortgage Note (the "EXTENSION LOANS")), there are no Appraisal
Reduction Amounts with respect to the Mortgage Loans and there are no casualties
or condemnations affecting the Mortgaged Properties, (vii) scheduled Monthly
Payments on the Mortgage Loans are timely received, and no prepayments are made
on any of the Mortgage Loans, (viii) all Mortgage Loans accrue interest on the
basis of a 360-day year consisting of twelve 30-day months, (ix) neither the
Master Servicer nor the Depositor exercises its right of optional termination
provided for herein, (x) no Mortgage Loan is required to be repurchased by a
Mortgage Loan Seller, (xi) no Prepayment Interest Shortfalls are incurred and no
Prepayment Premiums are collected, (xii) there are no Additional Trust Fund
Expenses, (xiii) distributions on the Certificates are made on the 15th day of
each month, commencing in
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December 1996, (xiv) the Certificates are issued on November 7, 1996, (xv) the
prepayment provisions for each Mortgage Loan are assumed to begin on the first
payment date of such Mortgage Loan, and (xvi) the open prepayment period, if
any, is assumed to begin on the first day of the respective month prior to the
maturity date.
"Maturity Date": With respect to any Mortgage Loan as of any
date of determination, the date on which the last payment of principal is due
and payable under the related Mortgage Note, after taking into account all
Principal Prepayments received prior to such date of determination and any
extension permitted at the Mortgagor's option under the terms of 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, or (iii) any modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the Master Servicer or Special Servicer pursuant to
Section 3.20.
"Modified Mortgage Loan": Any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal
or interest due thereon (other than, or in addition to, bringing
current Monthly Payments with respect to such Mortgage Loan);
(B) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount not less than the fair market value
(as is), as determined by an Appraisal delivered to the Special
Servicer (at the expense of the related Mortgagor and upon which the
Special Servicer may conclusively rely), of the property to be
released; or
(C) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage
Loan or reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and/or interest on such Mortgage Loan,
including any Balloon Payment, which is payable by a Mortgagor from time to time
under the terms of the related Mortgage Note (as such may be modified at any
time following the Closing Date) and applicable law.
"Moody's": Moody's 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 which designation shall be given to the Trustee, the
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Master Servicer and the Special Servicer and specific ratings of Moody's
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.
"Mortgaged Property": Individually and collectively, as the
context may require, the real property interest subject to the lien of a
Mortgage and constituting collateral for a Mortgage Loan. With respect to any
Cross-Collateralized Mortgage Loan, as the context may require, "Mortgaged
Property" may mean, collectively, all the Mortgaged Properties securing such
Cross-Collateralized Mortgage Loan.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 2.01(b), collectively the following documents:
(i) 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 State Street Bank and Trust Company, as
trustee for the registered holders of GMAC Commercial
Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 1996-C1, without recourse";
(ii) 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;
(iii) an original assignment of the Mortgage, in recordable
form, executed by the most recent assignee of record
thereof prior to the Trustee, or if none by the
originator, either in blank or in favor of the
Trustee (in such capacity);
(iv) 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;
(v) 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
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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 (iii)
above;
(vi) 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;
(vii) an original assignment or a copy 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 (iii) above;
(viii) 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;
(ix) the original or a copy of the lender's title
insurance policy issued as of the date of the
origination of the Mortgage Loan, 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;
(x) 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;
(xi) (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 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 Seller, a UCC financing
statement executed by the most recent assignee of
record prior to the Trustee or, if none, by the
originator, evidencing
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the transfer of such security interest, either in
blank or in favor of the Trustee;
(xii) 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;
(xiii) when relevant, the related Ground Lease or a copy
thereof; and
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned to the Trustee pursuant to Section 2.01 and from time to time held in
the Trust Fund. As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage and other security documents contained in the related
Mortgage File.
"Mortgage Loan Accrual Period": With respect to any Mortgage
Loan and any Due Date therefor, the one month period immediately preceding such
Due Date.
"Mortgage Loan Accrued Interest": With respect to any Mortgage
Loan for any related Mortgage Loan Accrual Period, the aggregate amount of
interest accrued in respect of such Mortgage Loan during such Mortgage Loan
Accrual Period at the Mortgage Rate then in effect.
"Mortgage Loan Purchase Agreement": With respect to any
Mortgage Loan Seller, the 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 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;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
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(iii) the (A) Mortgage Rate in effect as of the Cut-off Date and (B)
whether such Mortgage Loan is an Adjustable Rate Mortgage
Loan, a Fixed-Rate Loan or a Step-Down Loan;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut- off Date;
(ix) in the case of an Adjustable Rate Mortgage Loan, the (A)
Index, (B) Gross Margin, (C) first Mortgage Rate adjustment
date following the Cut-off Date and the frequency of Mortgage
Rate adjustments, and (D) maximum and minimum lifetime
Mortgage Rate; if any; and
(x) the Loan Group.
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": Any of GMACCM, ContiTrade and ING.
"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 and
any successor REO Loans.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or
prior to its Maturity Date, the fixed or adjustable annualized 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.
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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 3.19(f) in
connection with such Prepayment Interest Shortfalls.
"Net Default Interest": With respect to any Mortgage Loan, any
Default Interest actually collected thereon, net of any portion thereof
allocable to pay the Special Servicer any Liquidation Fee or Workout Fee in
respect of such Mortgage Loan and further net of any Advance Interest accrued on
Advances made in respect of such Mortgage Loan and reimbursable from such
Default Interest in accordance with Section 3.05(a).
"Net Investment Earnings": With respect to either the
Certificate Account or the Distribution 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 either the Certificate
Account or the Distribution Account for any Collection Period, the amount by
which the aggregate of all losses, if any, incurred during such Collection
Period in connection with the investment of funds relating to the Trust Fund
held in such account in accordance with Section 3.06, exceeds the aggregate of
all interest and other income realized during such Collection Period on such
funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect, minus the Master Servicing Fee Rate.
"Net Operating Income": With respect to any Mortgaged
Property, for any twelve month period (or such shorter period calculated on an
annualized basis), the total operating revenues derived from such Mortgaged
Property during such period, minus the total fixed and variable operating
expenses incurred in respect of such Mortgaged Property during such period other
than (i) non-cash items such as depreciation and amortization, (ii) capital
expenditures and (iii) debt service on loans secured by the Mortgaged Property.
"Nonrecoverable Advance": Any Nonrecoverable Delinquency
Advance or Nonrecoverable Servicing Advance.
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"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. The determination by the
Master Servicer or, if applicable, the Trustee that it has made a Nonrecoverable
Delinquency Advance or that any proposed Delinquency Advance, if made, would
constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an
Officer's Certificate delivered to the Depositor and delivered to or retained by
the Trustee, detailing a reasonable basis for such determination. The Trustee
shall be entitled to rely conclusively upon any such Officer's Certificate of
the Master Servicer.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property which, in the judgment of the Master Servicer, the Special Servicer or,
if applicable, the Trustee, will not be ultimately recoverable (together with
Advance Interest thereon) from late payments, Insurance Proceeds, Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan or REO
Property. The determination by the Master Servicer, the Special Servicer or, if
applicable, the Trustee that it has made a Nonrecoverable Servicing Advance or
that any proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be evidenced by an Officers' Certificate delivered to
the Depositor and delivered to or retained by the Trustee, detailing a
reasonable basis for such determination. The Trustee shall be entitled to rely
conclusively upon any such Officer's Certificate of the Master Servicer.
"Non-Registered Certificate": Unless and until registered
under the Securities Act, any Class F, Class G, Class H 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.
"Operating Statement Analysis": As defined in Section 4.02(c).
"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.
"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 and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
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"Pass-Through Rate": With respect to:
(1) the Class A-1 Certificates, (a) for each Distribution
Date up to and including the Distribution Date in
April 1997, 5.9125% per annum, and (b) for any
subsequent Distribution Date, the lesser of (i) LIBOR
for such Distribution Date, plus 0.35%, and (ii) the
REMIC II Remittance Rate for REMIC II Regular
Interest LG1 for such Distribution Rate (or, if the
Uncertified Principal Balance of REMIC II Regular
Interest LG1 prior to such Distribution Date is zero,
11.61% per annum);
(2) the Class X-2 Certificates, for any Distribution
Date, a rate per annum equal to the excess, if any,
of (i) the weighted average of the REMIC II
Remittance Rates applicable to REMIC II Regular
Interest LG1 and REMIC II Regular Interest LG2 for
such Distribution Date (weighted on the basis of the
respective Uncertificated Principal Balances of such
REMIC II Regular Interests immediately prior to such
Distribution Date), over (ii) the weighted average of
the respective REMIC II Remittance Rates applicable
to REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2A, REMIC II Regular Interest A-2B, REMIC
II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G and REMIC II Regular Interest H
for such Distribution Date (weighted on the basis of
the respective Uncertificated Principal Balances of
such REMIC II Regular Interests immediately prior to
such Distribution Date); and
(3) the Class A-2A Certificates, the Class A-2B
Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E
Certificates, the Class F Certificates, the Class G
Certificates and the Class H Certificates, for any
Distribution Date, the respective fixed rates per
annum specified as such in the Preliminary Statement.
"Payment Adjustment Date": With respect to each Adjustable
Rate Mortgage Loan, any date on which the related Monthly Payment is subject to
adjustment pursuant to the related Mortgage Note. The first Payment Adjustment
Date subsequent to the Cut-off Date for each Adjustable Rate Mortgage Loan is
specified in the Mortgage Loan Schedule, and successive Payment Adjustment Dates
for such 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. The Payment Priority of the
respective Classes of Certificates shall be, in descending order, as follows:
FIRST, the respective Classes of Senior Certificates, PRO RATA; SECOND, the
Class B Certificates; THIRD,
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the Class C Certificates; FOURTH, the Class D Certificates; FIFTH, the Class E
Certificates; SIXTH, the Class F Certificates; SEVENTH, the Class G
Certificates; EIGHTH, the Class H Certificates; and LAST, the respective classes
of Residual Certificates.
"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, the Certificate Notional Amount or the Effective 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,
Initial Class Notional Amount or the Initial Effective 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": One or more of the following:
(i) 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;
(ii) repurchase agreements on obligations specified in clause
(i) maturing not more than one month 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 the Rating
Agency in its highest short-term rating available;
(iii) 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 (or, if the Rating Agency is
Standard & Poor's, in the case of the principal depository institution
in a depository institution holding company, the short-term debt
obligations of the depository institution holding company) at all times
since the date of acquisition thereof have been rated by the Rating
Agency in its highest short-term rating available; and provided further
that, if the Rating Agency is Standard & Poor's and if the depository
or trust company is a principal subsidiary of a bank holding company
and the debt obligations of such subsidiary are not separately rated,
the applicable rating shall be that of the bank holding company; and,
provided further that, if the original maturity of such short-term
obligations of a domestic branch of a foreign depository institution or
trust company shall exceed 30 days, the
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short-term rating of such institution shall be A-1+ in the case of
Standard & Poor's if Standard & Poor's is the Rating Agency;
(iv) 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 the 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;
(v) a money market fund or a qualified investment fund rated
by the Rating Agency in its highest rating available;
(vi) commercial paper of issuers rated A-1+ or P-1, as
applicable, by each Rating Agency; 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;
(vii) short-term debt obligations of issuers rated A-1 (or the
equivalent) by each Rating Agency provided that the total amount of
such investment (A) is limited to monthly principal and interest
payments assuming fully amortizing collateral, (B) does not represent
more than 20% of the rated issue's outstanding principal amount and (C)
shall have a maturity of not more than 30 days; and
(viii) other obligations or securities that are acceptable to
the Rating Agency as a Permitted Investment hereunder and which would
not result in the downgrade, qualification or withdrawal of the
then-current rating assigned to any Class of Certificates by the Rating
Agency, as evidenced in writing;
provided, however, that no instrument shall be a Permitted Investment if it
represents, (1) the right to receive only interest payments with respect to the
underlying debt instrument, (2) the right to receive both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations, (3) an obligation that has a remaining maturity of greater than 365
days from the date of acquisition thereof, or (4) an obligation that Standard &
Poor's does not explicitly rate, then such obligation must be limited to those
instruments that have a predetermined fixed dollar of principal due at maturity
that cannot vary or change or, if rated, the obligation should not have an "r"
highlighter affixed to its rating, and interest thereon may either be fixed or
variable and should be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionately with that index. 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.
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"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 and (v) 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.
"Prepayment Assumption": A CPR of 0%, 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 applied to such Mortgage Loan
following such Mortgage Loan's Due Date in such Collection Period, the amount of
interest (net of related Master Servicing Fees) 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 during any
Collection Period, which Principal Prepayment was applied to such Mortgage Loan
prior to such Mortgage Loan's Due Date in such Collection Period, the amount of
interest that would have accrued at the related Net Mortgage Rate on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
the day immediately preceding such Due Date, inclusive, to the extent not
collected from the related Mortgagor (without regard to any Prepayment Premium
that may have been collected).
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"Prepayment Premium": Any premium, penalty or fee paid or
payable, as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Mortgage Loan or REO
Loan.
"Primary Servicing Office": With respect to each of the Master
Servicer and the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement; initially located in
Pennsylvania.
"Principal Balance Certificate": Any REMIC III Regular
Certificate other than an Interest Only Certificate.
"Principal Distribution Amount": With respect to either Loan
Group for any Distribution Date, the aggregate of (i) the Current Principal
Distribution Amount with respect to such Loan Group for such Distribution Date
and (ii), if such Distribution Date is subsequent to the initial Distribution
Date, the excess, if any, of the Principal Distribution Amount with respect to
such Loan Group 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.
"Proposed Plan": As defined in Section 3.17.
"Prospectus": The Prospectus dated October 22, 1996, as
supplemented by the Prospectus Supplement dated October 30, 1996, relating to
the offering of the Certificates.
"Purchase Price": With respect to any Mortgage Loan, a price
equal to the outstanding principal balance of such Mortgage Loan as of the date
of purchase, together with (a) all accrued and unpaid interest on such Mortgage
Loan at the related Mortgage Rate in effect from time to time to but not
including the Due Date in the Collection Period of purchase or, in the case of a
purchase by the Master Servicer or the Depositor pursuant to Section 9.01, to
but not including the Due Date in the Collection Period preceding the Collection
Period of purchase, (b) all related unreimbursed Servicing Advances, and (c) if
such Mortgage Loan is being purchased by a Mortgage Loan Seller pursuant to
Section 6 of the related Mortgage Loan Purchase Agreement or the Conti Guarantor
pursuant to the Conti Guaranty Agreement, all expenses reasonably incurred or to
be incurred by the Master Servicer (unless such Mortgage Loan Seller is acting
as Master Servicer), the Depositor and the Trustee in respect of the Breach or
Defect giving rise to the repurchase obligation. With respect to any REO
Property, the amount calculated in accordance with the preceding sentence in
respect of the related REO Loan.
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"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser or
state certified appraiser.
"Qualified Insurer": An insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rated Final Distribution Date": The Distribution Date in
October 2028.
"Rating Agency": Each of Standard & Poor's and Moody's.
"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 commencement of the Collection Period in which 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 owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or interest so forgiven.
With respect to any Mortgage Loan as to which the Mortgage
Rate thereon has been permanently reduced for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or Special Servicer pursuant to Section 3.20, the amount of
the consequent reduction in the interest portion of each successive Monthly
Payment due thereon. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to any Distribution Date, (i) in
the case of Class A-1 Certificates, the fifth day of the calendar month in which
such Distribution Date occurs or, if such fifth day is not a Business Day, the
immediately preceding Business Day; and (ii) in the
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case of each other Class of Certificates, the last Business Day of the calendar
month immediately preceding the month in which such Distribution Date occurs.
"Reference Banks": For so long as the Master Servicer is
required pursuant to Section 3.19(a) to calculate Six-Month LIBOR (Formula 1),
those reference banks utilized by it in connection with such calculation, which
shall in any event be leading banks engaged in Eurodollar deposits in the
international Eurocurrency market with an established place of business in
London. Thereafter, Barclays Bank, plc, The Bank of Tokyo, Ltd., Bankers Trust
Company and National Westminster Bank, plc, or any substitute reference bank
appointed by the Trustee which is a leading bank engaged in transactions in
Eurodollar deposits in the international Eurocurrency market with an established
place of business in London.
"Registered Certificates": The Class X-1, Class X-2, Class
A-1, Class A-2A, Class A-2B, 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.
"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 payments of principal, interest and other amounts
due and payable on the Mortgage Loans on or before the Cut-off Date), together
with all documents delivered or caused to be delivered under the Mortgage Loan
Purchase Agreements with respect to the Mortgage Loans by the Mortgage Loan
Sellers; (ii) any REO Properties acquired in respect of the Mortgage Loans;
(iii) such funds or assets as from time to time are deposited in the
Distribution Account and the Certificate Account; and (iv) the rights of the
Depositor under Sections 2, 4(a) and 6 of each Mortgage Loan Purchase Agreement
assigned by the Depositor to the Trustee and, to the extent it relates to the
obligations of ContiTrade under such Sections of its Mortgage Loan Purchase
Agreement, the right, title and interest of the Depositor under the
corresponding Guaranty Agreement.
"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
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shall be the loan number for the related Mortgage Loan set forth in the Mortgage
Loan Schedule.
"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, as
of the commencement of the related Collection Period (calculated in accordance
with the terms of the related Mortgage Note in effect as of the Closing Date).
"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 Regular Interest": Any of the 13 separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time and, except for REMIC II Regular Interest X-1, 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.
"REMIC II Remittance Rate": With respect to:
(a) REMIC II Regular Interest LG1, (i) for the initial
Distribution Date, 7.48917% per annum, (ii) for each Distribution Date
subsequent to the initial Distribution Date up to and including the
Distribution Date in April 1997, 5.9125% per annum, and (iii) for any
subsequent Distribution Date, the lesser of (A) LIBOR for such
Distribution Date, plus 0.35%, and (B) the weighted average of the
Effective REMIC I Remittance Rates for the REMIC I Regular Interests
relating to the Group 1 Loans for such Distribution Date (weighted on
the basis of the respective Uncertificated Principal Balances of such
REMIC I Regular Interests immediately prior to such Distribution Date)
or, if the aggregate Uncertificated Principal Balance of such REMIC I
Regular Interests was reduced to zero prior to such Distribution Date,
11.61% per annum;
(b) REMIC II Regular Interest LG2, for any Distribution Date,
the weighted average of the Effective REMIC I Remittance Rates for the
REMIC I Regular Interests related to the Group 2 Loans for such
Distribution Date (weighted on the basis of the respective
Uncertificated Principal Balances of such REMIC I Regular Interests
immediately prior to such Distribution Date);
(c) REMIC II Regular Interest X-1, for any Distribution Date,
the excess, if any, of (i) the weighted average of the Effective REMIC
I Remittance Rates for the REMIC I Regular Interests related to the
Group 1 Loans for such Distribution Date (weighted on the basis of the
respective Uncertificated Principal Balances of such REMIC
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I Regular Interests immediately prior to such Distribution Date), over
(ii) the REMIC II Remittance Rate applicable to REMIC II Regular
Interest LG1 for such Distribution Date;
(d) REMIC II Regular Interest A-1, (i) for the initial
Distribution Date, 7.48917% per annum, (ii) for each Distribution Date
up to and including the Distribution Date in April 1997, 5.9125% per
annum, and (iii) for any subsequent Distribution Date, the lesser of
(A) LIBOR for such Distribution Date, plus 0.35%, and (B) the weighted
average of the Effective REMIC I Remittance Rates for the REMIC I
Regular Interests relating to the Group 1 Loans for such Distribution
Date (weighted on the basis of the respective Uncertificated Principal
Balances of such REMIC I Regular Interests immediately prior to such
Distribution Date) or, if the aggregate Uncertificated Principal
Balance of such REMIC I Regular Interests was reduced to zero prior to
such Distribution Date, 11.61% per annum; and
(e) each of REMIC II Regular Interests A-2A, A-2B, B, C, D, E,
F, G and H, for any Distribution Date, the respective fixed rates per
annum specified as such in the Preliminary Statement.
"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 Certificates": 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 proposed, temporary and final Treasury regulations and any
rulings 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.
"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 3.11(f).
"REO Extension": As defined in Section 3.16(a).
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"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 Payments and
other amounts due and owing in respect of the predecessor Mortgage Loan as of
the date of the related REO Acquisition shall be deemed to continue to be due
and owing in respect of an REO Loan. All amounts payable or reimbursable to the
Master Servicer, the Special Servicer or the Trustee in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, any unreimbursed Advances, together with any
Advance Interest accrued and payable in respect of such Advances, shall continue
to be payable or reimbursable to the Master Servicer, the Special Servicer or
the Trustee, as the case may be, in respect of an REO Loan.
"REO Loan Accrual Period": With respect to any REO Loan and
any Due Date therefor, the one month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf and in the name of the Trustee for the benefit of the
Certificateholders through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"REO Status Report": A report or reports substantially in the
form of Exhibit G attached hereto setting forth, among other things, with
respect to each REO Property that was included in the Trust Fund as of the close
of business on the immediately preceding Determination Date, (i) the Acquisition
Date of such REO Property, (ii) the amount of income collected with respect to
any REO Property (net of related expenses) and other amounts, if any, received
on such REO Property during the Collection Period ending on such Determination
Date and (iii) the value of the REO Property based on the most recent Appraisal
or other valuation thereof available to the Master Servicer as of such date of
determination (including any valuation prepared internally by the Special
Servicer).
"REO Tax": As defined in Section 3.17.
"Request for Release": A release signed by a Servicing
Officer, in the form of Exhibit H attached hereto.
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"Required Appraisal Loan": As defined in Section 3.19(d).
"Reserve Account": The account or accounts created and
maintained pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any cash
amounts or instruments convertible into cash delivered by the related Mortgagor
to be held in escrow by or on behalf of the mortgagee representing reserves for
repairs, replacements, capital improvements and/or environmental testing and
remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I, Class R-II or Class
R-III Certificate.
"Responsible Officer": When used with respect to the 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.
"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-1, Class X-2, Class A-1,
Class A-2A or Class A-2B Certificate.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses (including attorneys' fees and expenses and
fees of real estate brokers) incurred by the Master Servicer, the Special
Servicer or, if applicable, the Trustee in connection with the servicing and
administering of (a) a Mortgage Loan in respect of which a default, delinquency
or other unanticipated event has occurred or as to which a default is imminent
or (b) an REO Property, including, but not limited to, the cost of (i)
compliance with the obligations of the Master Servicer and/or the Special
Servicer set forth in Section 3.03(c) and 3.09(c), (ii) the preservation,
restoration and protection of a Mortgaged Property, (iii) obtaining any
Insurance Proceeds or any Liquidation Proceeds in respect of any Mortgage Loan
or REO Property, (iv) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including foreclosures, and (v) the operation, management,
maintenance and liquidation of any
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REO Property. All Emergency Advances made by the Special Servicer hereunder
shall be considered "Servicing Advances" for the purposes hereof.
"Servicing Fees": With respect to each Mortgage Loan and REO
Loan, the Master Servicing Fee, the Special Servicing Fee and the Special
Servicer Standby Fee (if applicable).
"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 Return Date": With respect to any Corrected
Mortgage Loan, the date that servicing thereof is returned by the Special
Servicer to the Master Servicer pursuant to Section 3.21(a).
"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 (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Six-Month LIBOR (Formula 1)": The rate per annum determined
on each Formula 1 LIBOR Determination Date in the following manner after first
referring to the offered quotations appearing on the display page designated as
"LIBO" on the Reuters Monitor Money Rates Service or such other page as may
replace the LIBO page (the "Reuters Screen LIBO Page") for six-month United
States dollar deposits in the London interbank market, as of 11:00 a.m. (London
time) on such Formula 1 LIBOR Determination Date. If on any Formula 1 LIBOR
Determination Date two or more such offered quotations appear on the Reuters
Screen LIBO page, Six-Month LIBOR (Formula 1) for the immediately succeeding
LIBOR Reference Period will be equal to the arithmetic mean of such offered
quotations (rounded upwards, if necessary, to the nearest whole multiple of
1/16%). If on any Formula 1 LIBOR Determination Date fewer than two such offered
quotations appear on the Reuters Screen LIBO Page, SixMonth LIBOR (Formula 1)
for the immediately succeeding LIBOR Reference Period will be equal to the
arithmetic mean of the quotations offered by the Reference Banks for six-month
United States dollar deposits in the London interbank market, as of 11:00 a.m.
(London time) on such Formula 1 LIBOR Determination Date (rounded upwards, if
necessary, to the nearest whole multiple of 1/16%); provided, however, that (i)
if only one Reference Bank offers such a quotation, Six-Month LIBOR (Formula 1)
for the immediately succeeding LIBOR Reference Period will be equal to that
quotation (rounded upwards, if necessary, to the nearest whole multiple of
1/16%), or (ii) if no Reference Banks offer such a quotation, Six-Month LIBOR
(Formula 1) for the immediately succeeding LIBOR Reference Period shall be
Six-Month LIBOR (Formula 1) as determined on the previous Formula 1 LIBOR
Determination Date. For so long
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as it is required pursuant to Section 3.19(a) to do so, the Master Servicer
shall calculate SixMonth LIBOR (Formula 1) and promptly report to the Trustee
the value thereof; and, thereafter, the Trustee shall calculate Six-Month LIBOR
(Formula 1).
"Special Servicer Loan Status Report": A report or reports
setting forth, among other things, as of the close of business on the
immediately preceding Determination Date (i) the aggregate amount of Specially
Serviced Mortgage Loans and (ii) a loan-by-loan listing of all Specially
Serviced Mortgage Loans indicating their status, date and reason for transfer to
the Special Servicer and such additional information as is contemplated by
Exhibit I hereto.
"Special Servicer Standby Fee": With respect to each Mortgage
Loan, the fee designated as such and payable to the Special Servicer pursuant to
Section 3.11(c).
"Special Servicer Standby Fee Rate": With respect to each
Mortgage Loan and REO Loan, .005% per annum.
"Special Servicing Fee": With respect to each Specially
Serviced Mortgage Loan and REO Loan, the fee designated as such and payable to
the Special Servicer pursuant to Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to
which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any
Balloon Payment, which failure has continued
unremedied for 30 days; or
(b) 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
(c) if the Master Servicer has determined in its good
faith and reasonable judgment, that a default in the
making of a Monthly Payment or any other payment
required under the related Mortgage Note or the
related Mortgage is likely to occur within 30 days
and is likely to remain unremedied for at least 60
days or, in the case of a Balloon Payment, for at
least 30 days; or
(d) there shall have occurred a default, other than as
described in clause (a) or (b) above, that materially
impairs the value of the related Mortgaged Property
as security for the Mortgage Loan or otherwise
materially and
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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
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary case under any present or future federal
or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the
related Mortgagor and such decree or order shall have
remained in force undischarged or unstayed for a
period of 60 days; or
(f) 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
(g) 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
(h) 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):
(w) with respect to the circumstances described in
clauses (a) and (b) above, the related Mortgagor has
made three consecutive full and timely Monthly
Payments under the terms of such Mortgage Loan (as
such terms may be changed or modified in connection
with a bankruptcy or similar proceeding involving the
related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 3.20);
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(x) with respect to the circumstances described in
clauses (c), (e), (f) and (g) 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
(d) above, such default is cured; and
(z) with respect to the circumstances described in clause
(h) above, such proceedings are terminated.
"Spread Rate": With respect to the Class X-2 Certificates,
1.00% per annum; with respect to the Class A-2A and Class A-2B Certificates,
0.30% per annum; with respect to the Class B Certificates, 0.50% per annum; with
respect to the Class C Certificates, 0.50% per annum; with respect to the Class
D Certificates, 0.65% per annum; and with respect to the Class E Certificates
1.50% per annum.
"Standard & Poor's": Standard & Poor's Ratings Services, a
Division of The McGraw-Hill Companies, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Standard &
Poor's" shall be deemed to refer to such other nationally recognized statistical
rating agency or other comparable Person designated by the Depositor, notice of
which designation shall be given to the Trustee, the Master Servicer, and the
Special Servicer, and specific ratings of Standard & Poor's Ratings Services, a
Division of the McGraw-Hill Companies, Inc. herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"Startup Day": With respect to each of REMIC I, REMIC II and
REMIC III, the day designated as such in Section 10.01(b).
"Stated Maturity Date": With respect to any Mortgage Loan, the
Due Date on which the last payment of principal is due and payable under the
terms of the related Mortgage Note as in effect on the Closing Date, without
regard to any change in or modification of such terms in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or Special Servicer pursuant to Section 3.20.
"Stated Principal Balance": With respect to any Mortgage Loan
(and any related REO Loan), the Cut-off Date Balance of such Mortgage Loan, as
reduced on each Distribution Date (to not less than zero) by (i) all payments
(or Delinquency Advances in lieu thereof) of, and all other collections
allocated as provided in Section 1.02 to, principal of or with respect to such
Mortgage Loan (or related REO Loan) that are (or, if they had not been applied
to cover any Additional Trust Fund Expense, would have been) distributed to
Certificateholders on such Distribution Date, and (ii) the principal portion of
any Realized Loss incurred in respect of such Mortgage Loan (or related REO
Loan) during the related Collection Period. Notwithstanding the foregoing, if a
Liquidation Event occurs in respect of any Mortgage Loan or REO Property,
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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.
"Step-Down Loan": A Mortgage Loan as to which the related
Mortgage Note provides, as of the Closing Date, for a one-time step-down in the
Mortgage Rate within the 12- month period following the Cut-off Date.
"Subordinated Certificate": Any Class B, Class C, Class D,
Class E, Class F, Class G, Class H or Residual Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or
the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Master Servicer or the Special Servicer and any Sub-Servicer relating to
servicing and administration of Mortgage Loans as provided in Section 3.22.
"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, 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.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust Fund": Collectively, all of the assets of REMIC I,
REMIC II and REMIC III.
"Trustee": State Street Bank and Trust Company, its successor
in interest, or any successor trustee appointed as herein provided.
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"Trustee Fee": With respect to each Collection Period, an
amount equal to one- twelfth of the product of the Trustee Fee Rate and the
aggregate Stated Principal Balance of the Mortgage Pool as of the commencement
of such Collection Period.
"Trustee Fee Rate": .005%.
"UCC": As defined in Section 3.06(a).
"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 or, if the
related Mortgage Loan or REO Loan accrues interest on a different basis, on such
alternative basis) 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 as set forth below. Onetenth of one
percent of the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall be allocated on such Distribution Date: FIRST, to REMIC
II Regular Interests H, G, F, E, D, C and B, sequentially in that order, in each
case up to the amount of any Uncertificated Accrued Interest in respect of such
REMIC II Regular Interest for such Distribution Date; and, THEREAFTER, among the
remaining REMIC II Regular Interests, up to an
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amount equal to, and PRO RATA in accordance with, (i) in the case of each of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2A and REMIC II
Regular Interest A-2B, the amount of Uncertificated Accrued Interest in respect
of such REMIC II Regular Interest for such Distribution Date, (ii) in the case
of each of REMIC II Regular Interest LG1 and REMIC II Regular Interest LG2, 0.1%
of the Class X-2 Share of the Uncertificated Accrued Interest in respect of such
REMIC II Regular Interest for such Distribution Date (any such allocation in
respect of each of REMIC II Regular Interest LG1 and REMIC II Regular Interest
LG2 pursuant to this clause THEREAFTER being specifically made in reduction of
the Class X-2 Share of such REMIC II Regular Interest's Uncertificated
Distributable Interest for such Distribution Date), and (iii) in the case of
REMIC II Regular Interest X-1, 0.1% of the Uncertificated Accrued Interest in
respect of such REMIC II Regular Interest for such Distribution Date. The
remaining 99.9% of the Net Aggregate Prepayment Interest Shortfall, if any, for
such Distribution Date shall be allocated on such Distribution Date: FIRST,
among REMIC II Regular Interests LG1, LG2 and X-1, in each case, in an amount
equal to 999 times the amount allocated thereto on such Distribution Date
pursuant to the preceding sentence (any such allocation in respect of each of
REMIC II Regular Interest LG1 and REMIC II Regular Interest LG2 pursuant to this
clause FIRST being specifically made in reduction of the Class X-2 Share of such
REMIC II Regular Interest's Uncertificated Distributable Interest for such
Distribution Date); and THEREAFTER, between REMIC II Regular Interests LG1 and
LG2, PRO RATA in accordance with the respective amounts of Uncertificated
Accrued Interest in respect of such REMIC II Regular Interests for such
Distribution Date (in each case, net of the Class X-2 Share thereof).
"Uncertificated Notional Amount": The aggregate notional
principal amount on which REMIC II Regular Interest X-1 accrues interest from
time to time which, as of any date of determination, is equal to the then
aggregate Uncertificated Principal Balance of the REMIC I Regular Interests
relating to the Group 1 Loans.
"Uncertificated Principal Balance": The principal amount of
any REMIC I Regular Interest or REMIC II Regular Interest (other than REMIC II
Regular Interest X-1) 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 (other than
REMIC II Regular Interest X-1) 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).
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"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, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate or trust 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.
"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, 98.0% 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,
1.4% of the Voting Rights shall be allocated among the Holders of the various
outstanding Classes of the Interest Only Certificates in proportion to the
respective Class Notional Amount or Effective Class Notional Amount, as the case
may be, of their Certificates, and the remaining Voting Rights shall be
allocated equally among the holders of the respective Classes of the Residual
Certificates. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates.
"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, 1.0%.
SECTION 1.02. Certain Calculations in Respect of the Mortgage
Pool.
(a) All amounts collected in respect of any group of related
CrossCollateralized 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
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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 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 other amounts then due and
owing under such Mortgage Loan; and EIGHTH, as a recovery of any remaining
principal of such Mortgage Loan to the extent of its entire remaining unpaid
principal balance.
(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 Collection Period 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 foregoing applications of amounts received in respect
of any Mortgage Loan or REO Property shall be determined by the Master Servicer
in its good faith judgment.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby 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) and 6 of each Mortgage Loan Purchase
Agreement and, to the extent it relates to the obligations of ContiTrade under
such Sections of its Mortgage Loan Purchase Agreement, the right, title and
interest of the Depositor under the Conti Guaranty Agreement and (iii) all other
assets included or to be included in REMIC I. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans (other than payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date). The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
(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 a Custodian appointed thereby,
on or before the Closing Date, the Mortgage File for each of such Mortgage Loan
Seller's Mortgage Loans so assigned. If the related Mortgage Loan Seller cannot
deliver, or cause to be delivered as to any Mortgage Loan, the original Mortgage
Note, the Mortgage Loan Seller shall deliver a copy or duplicate original of
such Mortgage Note, together with an affidavit certifying that the original
thereof has been lost or destroyed. If the related Mortgage Loan Seller cannot
deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iv), (xi) and (xii) of the
definition of "Mortgage File", with evidence of recording or filing, as the case
may be, thereon, because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, or because such original recorded document has been lost or returned
from the recording or filing office and subsequently lost, as the case may be,
the delivery requirements of the related Mortgage Loan Purchase Agreement and
this Section 2.01(b) shall be deemed to have been satisfied as to such missing
document or instrument, and such missing document or instrument shall be deemed
to have been included in the Mortgage File, provided that a photocopy of such
missing document or instrument (certified by the related Mortgage Loan Seller to
be a true and complete copy of the original thereof submitted for recording or
filing, as the case may be) is delivered to the Trustee or a Custodian appointed
thereby on or before the Closing Date. If the related Mortgage Loan Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, the original
or a copy of the related lender's
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title insurance policy referred to in clause (ix) of the definition of "Mortgage
File" solely because such policy has not yet been issued, the delivery
requirements of this Section 2.01(b) shall be deemed to be satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that the related Mortgage Loan Seller shall have
delivered to the Trustee or a Custodian appointed thereby, on or before the
Closing Date, a commitment for title insurance "marked-up" at the closing of
such Mortgage Loan, and the related Mortgage Loan Seller shall deliver to the
Trustee or such Custodian, promptly following the receipt thereof, the original
related lender's title insurance policy (or a copy thereof). In addition,
notwithstanding anything to the contrary contained herein, if there exists with
respect to any group of related Cross-Collateralized Mortgage Loans only one
original of any document referred to in the definition of "Mortgage File"
covering all the Mortgage Loans in such group, then the inclusion of the
original of such document in the Mortgage File for any of the Mortgage Loans in
such group shall be deemed an inclusion of such original in the Mortgage File
for each such Mortgage Loan. Neither the Trustee nor any Custodian shall in any
way be liable for any failure by the Mortgage Loan Seller or the Depositor to
comply with the delivery requirements of the Mortgage Loan Purchase Agreement
and this Section 2.01(b).
If any of the endorsements referred to in clause (i) of the
definition of "Mortgage File", or any of the assignments referred to in clauses
(iii), (v) and (vii) of the definition of "Mortgage File", are delivered to the
Trustee in blank, the Trustee shall be responsible for completing the related
endorsement or assignment in the name of the Trustee (in such capacity).
(c) Except under the circumstances provided for in the last
sentence of this subsection (c), the Trustee shall, as to each Mortgage Loan, at
the expense of the related Mortgage Loan Seller, promptly (and in any event
within 45 days of the Closing Date) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, as appropriate, each assignment referred to
in clauses (iii) and (v) of the definition of "Mortgage File" and each UCC-2 and
UCC-3 referred to in clause (xi) (B) of the definition of "Mortgage File". Each
such assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC-2 and UCC-3 shall
reflect that the file copy thereof should be returned to the Trustee following
filing. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Trustee shall
direct the related Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase Agreement promptly to prepare or cause to be prepared a substitute
therefor or cure such defect, as the case may be, and thereafter the Trustee
shall upon receipt thereof cause the same to be duly recorded or filed, as
appropriate.
(d) All documents and records in the Depositor's or any
Mortgage Loan Seller's possession relating to the Mortgage Loans that are not
required to be a part of a Mortgage File in accordance with the definition
thereof shall be delivered to the Master Servicer on or before the Closing Date
and shall be held by the Master Servicer (or a Sub-Servicer retained thereby) on
behalf of the Trustee in trust for the benefit of the Certificateholders. If the
Sub-Servicer
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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, as in full force and effect, without amendment or
modification, on the Closing Date.
SECTION 2.02. Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this
Agreement, acknowledges 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 (i)-(iii), (ix) and (xii) of the
definition of "Mortgage File", of a fully executed original counterpart of each
Mortgage Loan Purchase Agreement and of all other assets included in REMIC I and
delivered to it, in good faith and without notice of any adverse claim, and
declares that it or a Custodian on its behalf holds and will hold such documents
and the other documents delivered or caused to be delivered by the Mortgage Loan
Sellers constituting the Mortgage Files, and that it holds and will hold such
other assets included in REMIC I, in trust for the exclusive use and benefit of
all present and future Certificateholders.
(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 to each of the Depositor, the Master Servicer, the Special
Servicer and each Mortgage Loan Seller 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
(i) - (iii), (ix) and (xii) 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) all documents
delivered or caused to be delivered by the related Mortgage Loan Seller
constituting the related Mortgage File have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (i), (ii), (iii)(B), (iv), (vii) and (ix) of
the definition of "Mortgage Loan Schedule", is correct.
(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 to each of the Depositor,
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the Master Servicer, the Special Servicer 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 (i), (ii), (ix) and (xii) of the
definition of "Mortgage File" are in its possession or the related Mortgage Loan
Seller has otherwise satisfied the delivery requirements in accordance with
Section 2.01(b), (ii) it or a Custodian on its behalf has received either a
recorded original of each of the assignments specified in clauses (iii) and,
insofar as an unrecorded original thereof had been delivered or caused to be
delivered by the related Mortgage Loan Seller, (v) of the definition of
"Mortgage File" or a copy of such recorded original certified by the applicable
public recording office to be true and complete, (iii) all Mortgage Loan
documents received by it or any Custodian have been reviewed by it or by such
Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iv) based on the examinations referred to in subsection (b)
above and this subsection (c) and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (i), (ii), (iii)(B), (iv), (vii) and (ix) of the definition
of "Mortgage Loan Schedule", is correct.
(d) It is acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (iv) - (viii), (x), (xi) and (xiii) of the
definition of "Mortgage File" exist or are required to be delivered by the
Depositor, any Mortgage Loan Seller or any other Person or (ii) to inspect,
review or examine any of the documents, instruments, certificates or other
papers relating to the Mortgage Loans delivered to it to determine that the same
are genuine, enforceable, in recordable form or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
(e) If, in the process of reviewing the Mortgage Files or at
any time thereafter, the Trustee or any Custodian finds (or, if at any time, any
other party hereto finds) any document or documents constituting a part of a
Mortgage File to have not been properly executed or, subject to Section 2.01(b),
to have not been delivered, to contain information that does not conform in any
material respect with the corresponding information set forth in the Mortgage
Loan Schedule, or to be defective on its face (each, a "Defect" in the related
Mortgage File) the Trustee (or such other party) shall promptly so notify each
of the other parties hereto and the related Mortgage Loan Seller (and, in the
case of ContiTrade, the Conti Guarantor). 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.
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SECTION 2.03. Mortgage Loan Sellers' Repurchase of Mortgage
Loans for Defects in Mortgage Files and
Breaches of Representations and Warranties.
(a) If the Trustee discovers or receives notice of a Defect in
any Mortgage File or a breach of any representation or warranty set forth in or
required to be made pursuant to Section 4(a) of each Mortgage Loan Purchase
Agreement (a "Breach"), which Defect or Breach, as the case may be, materially
and adversely affects the value of any Mortgage Loan or the interests of the
Certificateholders therein, or if the Trustee discovers or receives notice of
any event that would give rise to the repurchase of a Mortgage Loan pursuant to
Section 6(b) of any Mortgage Loan Purchase Agreement, the Trustee shall give
prompt written notice of such Defect, Breach or event, as the case may be, to
the Depositor, the Master Servicer, the Special Servicer and the related
Mortgage Loan Seller (and, in the case of ContiTrade, the Conti Guarantor) and
shall request that the related Mortgage Loan Seller, not later than 90 days from
such Mortgage Loan Seller's receipt of such notice, cure such Defect, Breach or
event, as the case may be, in all material respects or repurchase the affected
Mortgage Loan at the applicable Purchase Price in conformity with the related
Mortgage Loan Purchase Agreement. If the affected Mortgage Loan is to be
repurchased, the Trustee shall designate the Certificate Account as the account
to which funds in the amount of the Purchase Price are to be wired.
(b) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the Trustee, the Master Servicer and the
Special Servicer shall each tender promptly to the related Mortgage Loan Seller,
upon delivery to each of the Trustee, the Master Servicer and the Special
Servicer of a trust receipt executed by the related Mortgage Loan Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and each document that constitutes a part of the related
Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or
assigned, as the case may be, to the related Mortgage Loan Seller in the same
manner as provided in Section 2 of the related Mortgage Loan Purchase Agreement.
(c) Section 6 of the related Mortgage Loan Purchase Agreement
provides the sole remedy available to the Certificateholders, or the Trustee on
behalf of the Certificateholders, respecting any Defect in a Mortgage File or
any Breach of any representation or warranty set forth in or required to be made
pursuant to Section 4(a) of such Mortgage Loan Purchase Agreement or any of the
circumstances described in Section 6(b) of such Mortgage Loan Purchase
Agreement.
(d) The Master Servicer (or, in the case of GMACCM, for so
long as it is acting as Master Servicer, the Trustee) shall, for the benefit of
the Certificateholders, enforce the obligations of each Mortgage Loan Seller
under Section 6 of the related Mortgage Loan Purchase Agreement (and, in the
case of ContiTrade, to the extent necessary, the corresponding obligations of
the Conti Guarantor under the Conti Guaranty 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 Master Servicer or the
Trustee, as the case may be, would
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require were it, in its individual capacity, the owner of the affected Mortgage
Loan(s). The Master Servicer or the Trustee, as the case may be, 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, if
applicable, the Conti Guarantor); SECOND, pursuant to Section 3.05(a)(ix) out of
the related Purchase Price, to the extent that such expenses are a specific
component thereof; and THIRD, if at the conclusion of such enforcement action it
is determined that the amounts described in clauses FIRST and SECOND are
insufficient, then pursuant to Section 3.05(a)(x) out of general collections on
the Mortgage Loans on deposit in the Certificate Account.
SECTION 2.04. Issuance of Class R-I Certificates; Creation of
REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder and the
Trustee has executed, and caused the Certificate Registrar to authenticate and
deliver, to or upon the order of the Depositor, the Class R-I Certificates in
authorized denominations. The interests evidenced by the Class R-I Certificates,
together with the REMIC I Regular Interests, constitute the entire beneficial
ownership of REMIC I. The rights of the Class R-I Certificateholders and REMIC
II to receive distributions from the proceeds of REMIC I in respect of the Class
R-I Certificates and the REMIC I Regular Interests, respectively, and all
ownership interests of the Class R-I Certificateholders and REMIC II in and to
such distributions, shall be as set forth in this Agreement.
SECTION 2.05. Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Class R-II and REMIC III
Certificateholders. 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 and REMIC III
Certificateholders.
SECTION 2.06. Issuance of Class R-II Certificates; Creation
of REMIC II Regular Interest.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of the Depositor,
the REMIC II Regular Interests have been issued hereunder and the Trustee has
executed, and caused the Certificate Registrar to authenticate and deliver, to
or upon the order of the Depositor, the Class R-II Certificates in authorized
denominations. The interests evidenced by the Class R-II Certificates, together
with the REMIC II Regular Interests, constitute the entire beneficial ownership
of
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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.
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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
activities on behalf of third parties or on behalf of itself, whichever is
higher, with respect to mortgage loans that are comparable to the Mortgage
Loans; (ii) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans or, if a Mortgage Loan comes
into and continues in default and if, in the good faith and reasonable judgment
of the Special Servicer, no satisfactory arrangements can be made for the
collection of the delinquent payments, the maximization of the recovery on such
Mortgage Loan to the Certificateholders (as a collective whole) on a present
value basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Net Mortgage
Rate); and (iii) without regard to (A) any relationship that the Master Servicer
or the Special Servicer, as the case may be, or any Affiliate thereof may have
with the related Mortgagor, (B) the ownership of any Certificate by the Master
Servicer or the Special Servicer, as the case may be, or by any Affiliate
thereof, (C) the Master Servicer's obligation to make Advances, (D) the Special
Servicer's obligation to make (or to direct the Master Servicer to make)
Servicing Advances and (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 (the
conditions set forth in the immediately foregoing clauses (i), (ii) and (iii),
the "Servicing Standard"). Without limiting the generality of the foregoing,
each of the Master Servicer and the Special Servicer, in its own name, in
connection with its servicing and administrative duties hereunder is hereby
authorized and empowered by the Trustee to exercise efforts consistent with the
foregoing standard and to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
subject to Section 3.20, any and all modifications, waivers, amendments or
consents to or with respect to any documents contained in the related Mortgage
File; and any and all instruments of satisfaction or cancellation, or of full
release or discharge, and all other comparable instruments, with respect to the
Mortgage Loans and the Mortgaged Properties. Each of the Master Servicer and the
Special Servicer is also authorized to approve a request by a Mortgagor under a
Mortgage Loan that it
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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 in the same manner as it
would if it were the owner of the related Mortgage Loan, 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 for any negligence with respect to, or misuse
of, any such power of attorney by the Master Servicer or the Special Servicer,
as the case may be.
(b) Subject to Section 3.01(a) and provided that the Master
Servicer and the Special Servicer are not the same entity, the Master Servicer
and the Special Servicer each shall have full power and authority, acting alone,
to do or cause to be done any and all things in connection with such servicing
and administration which it may deem necessary or desirable.
(c) Except as otherwise provided in Section 3.06(a), the
relationship of the Master Servicer and the Special Servicer to the Trustee
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.
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, follow such collection procedures as it would follow were it the
owner of such Mortgage Loans; 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
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applicable) and comparable items in respect of the related Mortgaged Property;
(ii) reimburse the Master Servicer, the Special Servicer or the Trustee, 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); or (v) 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.
(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)
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 enforce the requirements of the related Mortgage for payments in respect
of such items at the time they first become due.
(c) In accordance with its normal servicing practices, 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 advances shall be reimbursable in the
first instance from related collections from the Mortgagors, and further as
provided in Section 3.05. No costs incurred by the Master Servicer or the
Special Servicer in effecting the payment of real estate taxes, assessments,
ground rents (if applicable) and other similar items on or in respect of the
Mortgaged Properties shall, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balances of the related Mortgage Loans, notwithstanding that the terms
of such Mortgage Loans so permit.
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(d) The Master Servicer (or the Special Servicer with respect
to Specially Serviced Mortgage Loans) shall, establish and maintain, as
applicable, one or more accounts (the "Reserve Accounts"), into which all
Reserve Funds, if any, shall be deposited and retained. Withdrawals of amounts
so deposited may be made to pay for, or to reimburse the related Mortgagor in
connection with, the related repairs, environmental remediation, replacements
and/or capital improvements at the related Mortgaged Property if such repairs,
environmental remediation, replacements and/or capital improvements have been
completed, and such withdrawals are made, in accordance with the Master
Servicer's or Special Servicer's, as the case may be, normal servicing practices
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.
SECTION 3.04. Certificate Account.
(a) The Master Servicer shall establish and maintain a
Certificate Account in which the Master Servicer shall deposit or cause to be
deposited on a daily basis, except as otherwise specifically provided herein,
the following payments and collections received or made by or on behalf of it
subsequent to the Cut-off Date (other than in respect of principal and interest
on the Mortgage Loans due and payable on or before the Cut-off Date), and
payments (other than Principal Prepayments) received by it on or prior to the
Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including
Principal Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (including,
without limitation, Default Interest) on the Mortgage Loans, late
payment charges and Prepayment Premiums;
(iii) all REO Revenues received in respect of any REO
Property (net of any portion thereof retained by a property manager as
compensation);
(iv) all Insurance Proceeds and Liquidation Proceeds
received in respect of any Mortgage Loan or REO Property (other than
Liquidation Proceeds that are received in connection with the Master
Servicer's or 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);
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds relating to the Trust
Fund held in the Certificate Account;
(vi) that portion of each Delinquency Advance that
represents (without duplication) the Master Servicing Fee and, if
applicable, the Special Servicing Fee; and
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(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, charges for beneficiary statements or demands,
assumption fees, amounts collected for mortgagor checks returned for
insufficient funds 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), assumption fees, modification fees and other transaction fees 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)
through (iv) above with respect to any Mortgage 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 its normal servicing practices, that a particular
item should not be deposited because of a restrictive endorsement or other
appropriate reason. 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 its
normal servicing practices, 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 in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall give notice to the Trustee, the Special Servicer and the
Depositor of the location of the Certificate Account as of the Closing Date and
of the new location of the Certificate Account prior to any change thereof.
(b) The Trustee shall establish and maintain the Distribution
Account in trust for the benefit of the Certificateholders. The Distribution
Account shall be maintained as a segregated account, separate and apart from
trust funds for mortgage pass-through certificates of other series administered
by the Trustee and other accounts of the Trustee.
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The Master Servicer shall deliver to the Trustee each month on
or before the Master Servicer Remittance Date therein, for deposit in the
Distribution Account, that portion of the Available Distribution Amount
(calculated without regard to clause (b)(iii) of the definition thereof) for the
related Distribution Date then on deposit in the Certificate Account.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account:
(i) 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 Distribution Account;
(ii) 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 Master Servicing Fees and/or
Special Servicing Fees, which is to be deposited in the Certificate
Account);
(iii) any Compensating Interest Payments required to be made
by the Master Servicer pursuant to Section 3.19;
(iv) any Liquidation Proceeds paid by the Master Servicer or
the Depositor in connection with the purchase of all of the Mortgage
Loans and any REO Properties in the Trust Fund pursuant to Section 9.01
(exclusive of that portion thereof required to be deposited in the
Certificate Account pursuant to Section 9.01); and
(v) any other amounts required to be so delivered for deposit
in the Distribution Account pursuant to any provision of this
Agreement.
The Trustee shall, upon receipt, deposit in the Distribution
Account any and all amounts received by the Trustee that are required by the
terms of this Agreement to be deposited therein. If, as of 3:00 p.m., New York
City time, on any Master Servicer Remittance Date or on such other date as any
amount referred in the foregoing clauses (i) through (v) is required to be
delivered hereunder, the Master Servicer shall not have delivered to the Trustee
for deposit in the Distribution Account the relevant portion of the Available
Distribution Amount or any of the amounts referred to in the foregoing clauses
(i) through (v), then the Trustee shall provide notice of such failure to a
Servicing Officer of the Master Servicer by facsimile transmission sent to
telecopy no. (215) 682-1796 (or such alternative number provided by the Master
Servicer to the Trustee in writing) and by telephone at telephone no. (215)
682-3371 (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.
Funds in the Distribution Account may be invested in Permitted
Investments 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
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of the Closing Date and of the new location of the Distribution Account prior to
any change thereof.
SECTION 3.05. Permitted Withdrawals From the Certificate
Account and the Distribution Account.
(a) The Master Servicer may, from time to time, make
withdrawals from the Certificate Account for any of the following purposes:
(i) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be remitted pursuant to the second
paragraph of Section 3.04(b) or that may be applied to make Delinquency
Advances pursuant to Section 4.03(a);
(ii) to pay itself unpaid Master Servicing Fees, and the
Special Servicer unpaid Special Servicing Fees, earned thereby in
respect of each Mortgage Loan and REO Loan, the Master Servicer's and
the Special Servicer's respective 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 of interest thereon;
(iii) to pay to the Special Servicer earned and unpaid Workout
Fees and Liquidation Fees to which it is entitled pursuant to, and from
the sources contemplated by, Section 3.11(c);
(iv) to reimburse itself or the Trustee, as applicable, for
unreimbursed Delinquency Advances made thereby, the Master Servicer's
and Trustee's respective rights to be reimbursed pursuant to this
clause (iv) 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);
(v) to reimburse itself, the Special Servicer or the Trustee,
as applicable, for unreimbursed Servicing Advances made thereby, the
Master Servicer's, the Special Servicer's and Trustee's respective
rights to be reimbursed pursuant to this clause (v) with respect to any
Mortgage Loan or REO Property being limited to, as applicable, related
payments, Liquidation Proceeds, Insurance Proceeds and REO Revenues;
(vi) to reimburse itself, the Special Servicer or the Trustee,
as applicable, out of general collections on the Mortgage Loans and REO
Properties, for Nonrecoverable Advances made thereby;
(vii) to pay itself, the Special Servicer or the Trustee, as
applicable, any Advance Interest due and owing thereto, the Master
Servicer's, the Special Servicer's and the Trustee's respective rights
to payment pursuant to this clause (vii) being limited to
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Penalty Charges collected in respect of the Mortgage Loan or REO Loan
as to which the related Advances were made;
(viii) at or following such time as it reimburses itself, the
Special Servicer or the Trustee, as applicable, for any unreimbursed
Advance pursuant to clause (iv), (v) or (vi) above or Section 3.03, and
insofar as payment has not already been made pursuant to clause (vii)
above, to pay itself, the Special Servicer or the Trustee, as the case
may be, out of general collections on the Mortgage Loans and REO
Properties, any related Advance Interest accrued and payable on such
Advance;
(ix) to reimburse itself (if it is not the affected Mortgage
Loan Seller) or the Trustee, as the case may be, for any unreimbursed
expenses reasonably incurred by such Person in respect of any Breach or
Defect giving rise to a repurchase obligation of a Mortgage Loan Seller
under Section 6 of the related Mortgage Loan Purchase Agreement,
including, without limitation, any expenses arising out of the
enforcement of the repurchase obligation (whether against the related
Mortgage Loan Seller or, in the case of ContiTrade, against the Conti
Guarantor), 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 itself
(if it is not the affected Mortgage Loan Seller) or the Trustee, as the
case may be, out of general collections on the Mortgage Loans and REO
Properties for any unreimbursed expense reasonably incurred by such
Person in connection with the enforcement of a Mortgage Loan Seller's
obligations under Section 6(a) of the related Mortgage Loan Purchase
Agreement (or, in the case of ContiTrade, the corresponding obligations
of the Conti Guarantor under the Conti Guaranty 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 REO Properties, for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c);
(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 as provided in Section 3.06(b) (but only to the
extent of the Net Investment Earnings with respect to the Certificate
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);
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(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 expenses related to the proper operation,
management and maintenance of an REO Property pursuant to Section 3.17,
but only out of amounts (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) relating to such REO
Property;
(xv) to pay itself, the Depositor, or any of their respective
directors, officers, employees and agents, as the case may be, out of
general collections on the Mortgage Loans and REO Properties, any
amounts payable to any such Person pursuant to Section 6.03;
(xvi) to pay, out of general collections on the Mortgage Loans
and REO Properties, for (A) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b)(ii) and 3.16(a), (B) the cost of the
advice of counsel contemplated by Section 3.17(a), (C) the cost of any
Opinion of Counsel contemplated by Section 11.01(a) in connection with
an amendment to this Agreement requested by the Master Servicer, which
amendment is in furtherance of the rights and interests of
Certificateholders, (D) the cost of obtaining the REO Extension
contemplated by Section 3.16(a), (E) the cost of recording this
Agreement in accordance with Section 11.02(a), and (F) the cost of an
Appraisal obtained pursuant to Section 3.11(g) or Section 4.03(c);
(xvii) to pay itself, the Special Servicer, any Mortgage Loan
Seller, the Conti Guarantor, 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; and
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate
accounting records, on a loan-by-loan and 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
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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:
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01;
(ii) to pay the Master Servicer, as additional servicing
compensation in accordance with the second paragraph of Section
3.11(b), 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 or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b);
(iv) 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);
(v) 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); and
(vi) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
SECTION 3.06. Investment of Funds in the Certificate Account
and the Distribution Account.
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(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account or the Distribution Account (each, for
purposes of this Section 3.06, an "Investment Account") to invest, or if it is
such depository institution, may itself invest, the funds held therein in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (i) no later than the Business Day immediately
preceding the next succeeding date on which such funds are required to be
withdrawn from such account pursuant to this Agreement, if a Person other than
the depository institution maintaining such account is the obligor thereon, and
(ii) no later than the next succeeding date on which such funds are required to
be withdrawn from such account pursuant to this Agreement, if the depository
institution maintaining such account is the obligor thereon. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such). The Master Servicer, on behalf of the Trustee, shall
maintain continuous possession of any Permitted Investment of amounts in the
Certificate Account that is either (i) a "certificated security", as such term
is defined in the Uniform Commercial Code of any applicable jurisdiction (the
"UCC"), or (ii) other property in which a secured party may perfect its security
interest by possession under the UCC or any other applicable law. Possession of
any such Permitted Investment by the Master Servicer shall constitute possession
by a person designated by the Trustee for purposes of Section 8-313 of the UCC
and possession by the Trustee, as secured party, for purposes of Section 9-305
of the UCC and any other applicable law. The Trustee shall have sole control
(except with respect to investment direction) over Permitted Investments of
amounts in the Distribution Account. 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) or the
Trustee (in the case of the Distribution 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 or 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) Interest and investment income realized on funds deposited
in each of the Certificate Account and the Distribution 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) or 3.05(b), as the case may be. In the event
that any loss shall be incurred in respect of any Permitted Investment on
deposit in either the Certificate Account or the Distribution Account, the
Master Servicer shall deposit therein, no later than the end of the Collection
Period during which such loss was incurred, without right
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of reimbursement, the amount of the Net Investment Loss, if any, with respect to
such account for such Collection Period.
(c) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to a majority of the Voting Rights
allocated to any Class shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) Each of the Master Servicer (in the case of Mortgage Loans
other than Specially Serviced Mortgage Loans) and the Special Servicer (in the
case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause
each Mortgagor to maintain in respect of the related Mortgaged Property all
insurance coverage as is required under the related Mortgage; provided that if
any Mortgage permits the holder thereof to dictate to the Mortgagor the
insurance coverage to be maintained on such Mortgaged Property, the Master
Servicer or the Special Servicer, as appropriate, shall impose such insurance
requirements as are consistent with its normal servicing procedures. If a
Mortgagor fails to maintain such insurance, the Master Servicer shall obtain
such insurance (which may be through a master or single interest policy) from
insurers whose claims-paying ability is rated at least investment grade by each
Rating Agency. The cost (including any deductible relating to such insurance) of
such insurance (or in the case of a master or single interest policy, the
incremental cost (including any deductible relating to such insurance) of such
insurance relating to the specific Mortgaged Property), shall be a Servicing
Advance and shall be recoverable by the Master Servicer pursuant to Section
3.05(a). If at any time a Mortgaged Property is located in an area identified in
the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal
Emergency Management Agency as having special flood hazards or it becomes
located in such area by virtue of remapping conducted by such agency (and flood
insurance has been made available), the Master 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, cause the related Mortgagor to maintain a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration in the maximum amount of insurance coverage
available under the National Flood Insurance Act or 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 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 shall obtain
such insurance, the cost of which shall be a Servicing Advance and shall
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be recoverable by the Master Servicer pursuant to Section 3.05(a); provided that
the Master Servicer shall not be required to incur any such cost if such advance
would constitute a Nonrecoverable Servicing Advance. Subject to Section 3.17(a),
the Special Servicer shall also use reasonable efforts to cause to be maintained
for each REO Property no less insurance coverage than was previously required of
the Mortgagor under the related Mortgage. 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 the Master Servicer's or the Special Servicer's, as
the case may be, normal servicing procedures) shall be deposited in the
Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any cost
incurred by the Master Servicer or the Special Servicer in maintaining any such
insurance shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the
outstanding principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit, but shall be recoverable by the
Master Servicer as a Servicing Advance pursuant to Section 3.05(a).
(b) If the Master Servicer or the Special Servicer shall
obtain and maintain 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 from its own funds the amount of such loss or losses that
would have been covered under the individual policy but are not covered under
the blanket policy because of such deductible clause. The Master Servicer and
the Special Servicer each agrees to prepare and present, on behalf of itself,
the Trustee and Certificateholders, claims under any such blanket policy
maintained by it in a timely fashion in accordance with the terms of such
policy.
(c) Each of the Master Servicer and the Special Servicer shall
obtain and maintain at its own expense and keep in full force and effect
throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions insurance policy covering its officers and employees and other persons
acting on behalf of it in connection with its activities under this Agreement.
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
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Servicer or Special Servicer, as the case may be, if the Master Servicer or
Special Servicer, as the case may be, were servicing and administering the
Mortgage Loans and/or REO Properties for which it is responsible hereunder for
FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under a
policy or bond obtained by an Affiliate of such Person and providing the
coverage required by this Section 3.07(c) shall satisfy the requirements of this
Section 3.07(c).
(d) All insurance coverage required to be maintained under
this Section 3.07 shall be obtained from Qualified Insurers having a
claims-paying rating of not less than BBB by Standard & Poor's and its
equivalent by Moody's.
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing.
(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
Master Servicer or, in the case of a Specially Serviced Mortgage Loan, the
Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or, subject to Section 3.20(a)(iii), 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 Master Servicer's or Special
Servicer's, as the case may be, normal servicing procedures. In the event that
the Master Servicer or 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 Master Servicer or the
Special Servicer, as the case may be, if consistent with the Master Servicer's
or Special Servicer's, as the case may be, normal servicing procedures, may
enter into a substitution of liability agreement, pursuant to which the original
Mortgagor and any original guarantors are released from liability, and the
transferee and any new guarantors are substituted therefor and become liable
under the Mortgage Note and any related guaranties and, in connection therewith,
may require from the related Mortgagor a reasonable and customary fee for the
additional services performed by it, together with reimbursement for any related
costs and expenses incurred by it (but only to the extent that charging such fee
will not be a significant modification of the Mortgage Loan for purposes of the
REMIC Provisions). The Master Servicer or the Special Servicer, as the case may
be, shall promptly notify the Trustee of any such agreement and forward the
original thereof to the Trustee for inclusion in the related Mortgage File.
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(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
Master Servicer or, in the case of a Specially Serviced Mortgage Loan, the
Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or, subject to Section 3.20(a)(iii), and with the written confirmation
from each Rating Agency that such waiver will not result in the downgrade,
qualification or withdrawal of any rating then assigned by such Rating Agency to
any Class of Certificates, 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 Master Servicer's or Special
Servicer's, as the case may be, normal servicing procedures.
(c) 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.
(d) Except as otherwise permitted by Section 3.20, neither the
Master Servicer nor the Special Servicer shall agree to modify, waive or amend
any term of any Mortgage Loan in connection with the taking of, or the failure
to take, any action pursuant to this Section 3.08.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) Subject to Section 3.20, the Master Servicer shall notify
the Special Servicer of any Mortgage Loan that is in default, and the Special
Servicer shall monitor such 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 as are consistent with the Special
Servicer's normal servicing procedures. 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 Special Servicer's normal
servicing procedures, 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
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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 Special Servicer (or, subject to Section 3.19(c), the Master Servicer) shall
be responsible for all other costs and expenses incurred by it in any such
proceedings, subject to its being entitled to reimbursement therefor as a
Servicing Advance as provided in Section 3.05(a) and further subject to its
being entitled to pay out of the related Liquidation Proceeds any Liquidation
Expenses incurred in respect of any Mortgage Loan, which Liquidation Expenses
were outstanding at the time such proceeds are received. When applicable state
law permits the Special Servicer to select between judicial and non-judicial
foreclosure in respect of any Mortgaged Property, the Special Servicer shall
make such selection in a manner consistent with the Servicing Standard. Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Trust Fund, to make a bid on any Mortgaged Property
at a foreclosure sale or similar proceeding that is in excess of the fair market
value of such property, as determined by the Special Servicer in its sole
judgment taking into account the factors described in Section 3.18(e) and the
results of any Appraisal obtained pursuant to this Agreement, all such bids to
be made in a manner consistent with the Special Servicer's normal servicing
procedures. 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, a Servicing Advance).
(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 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, neither the Master Servicer nor the Special Servicer shall, on behalf of
the Trustee, initiate foreclosure
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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 by a Person who
regularly conducts Environmental Assessments and the Special Servicer, based
solely (as to environmental matters and related costs) on the information set
forth in such Environmental Assessment, determines that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that acquiring such
Mortgaged Property and taking such actions as are necessary to bring
the Mortgaged Property in compliance therewith is reasonably likely to
produce a greater recovery to Certificateholders 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 as an expense of the Trust Fund pursuant to
Section 3.05(a); and if any such Environmental Assessment so warrants, the
Special Servicer shall, at the expense of the Trust Fund, perform such
additional environmental testing as are consistent with its normal servicing
procedures 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.
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(e) The Special Servicer shall provide written reports to the
Trustee, the Master Servicer and the Certificateholders monthly 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. The Special Servicer shall deliver a copy of any such
report to the Trustee.
(g) The Special Servicer shall have the right to determine, in
accordance with the Special Servicer's normal servicing procedures, 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,
prepared by a Servicing Officer, 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
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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 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.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan and REO Loan. As to each Mortgage Loan and REO Loan, the
Master Servicing Fee shall accrue from time to time at the Master Servicing Fee
Rate and shall be computed on the basis of the same principal amount and for the
same period respecting which any related interest payment due on such Mortgage
Loan or deemed to be due on such REO Loan is computed. The Master Servicing Fee
with respect to any Mortgage Loan or REO Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. The Master Servicing Fee shall be
payable monthly, on a loanby-loan basis, from payments of interest on each
Mortgage Loan, REO Revenues allocable as interest on each REO Loan and the
interest portion of Delinquency Advances on each Mortgage Loan and REO Loan. The
Master Servicer shall be entitled to recover unpaid Master 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 Master
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.
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(b) Additional servicing compensation in the form of
assumption fees, modification fees, charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds and any
similar fees (excluding 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, may be retained by the Master Servicer and are
not required to be deposited in the Certificate Account. 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, to the
extent not applied to cover Advance Interest in respect of the Mortgage Loan and
further to the extent received on Mortgage Loans other than Specially Serviced
Mortgage Loans, any Penalty Charges collected on the Mortgage Loans; (ii)
interest or other income earned on deposits in the Certificate Account and the
Distribution 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 maintained
thereby. The Master Servicer shall be required to pay out of its own funds all
overhead and general and administrative expenses incurred by it in connection
with its servicing activities hereunder (including, without limitation, payment
of any amounts due and owing to any of Sub-Servicers retained by it and the
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.07(b)), if and to the extent such expenses are not payable directly
out of the Certificate Account, and the Master Servicer shall not be entitled to
reimbursement therefor except as expressly provided in this Agreement. The
Master Servicer shall pay all surveillance fees payable to the Rating Agencies,
the Trustee Fee and the Special Servicer Standby Fee out of its Master Servicing
Fee without right of reimbursement.
(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 basis of the same
principal amount and for the same period 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 the same sources and at the same time (but separate
from) Master Servicing Fees payable to the Master Servicer in respect of such
Specially Serviced Mortgage Loan or REO Loan.
As further compensation for its activities hereunder, the
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the Workout
Fee shall be payable from, and shall be calculated by application of the Workout
Fee Rate to, each collection of interest and principal received on such Mortgage
Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if a Servicing
Transfer Event
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occurs with respect thereto or if the related Mortgaged Property becomes an REO
Property; provided that a new Workout Fee will become payable if and when such
Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer
is terminated other than for cause or resigns in accordance with Section 6.04,
it shall retain the right to receive any and all Workout Fees payable in respect
of Mortgage Loans that became Corrected Mortgage Loans during the period that it
acted as Special Servicer and were still such at the time of such termination or
resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the
Special Servicer shall also be entitled to receive a Liquidation Fee with
respect to each Specially Serviced Mortgage Loan or REO Property as to which it
receives any full or discounted payoff or any Liquidation Proceeds (other than
in connection with the purchase of any such Specially Serviced Mortgage Loan or
REO Property by the Special Servicer or the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18 or by the Master Servicer or the
Depositor pursuant to Section 3.18 or Section 9.01). As to each such Specially
Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be payable
from, and shall be calculated by application of the Liquidation Fee Rate to,
such full or discounted payoff and/or such Liquidation Proceeds. The Liquidation
Fee with respect to any such Specially Serviced Mortgage Loan will not be
payable if such Mortgage Loan becomes a Corrected Mortgage Loan. Notwithstanding
anything herein to the contrary, no Liquidation Fee will be payable from, or
based upon the receipt of, Liquidation Proceeds collected as a result of any
purchase of a Specially Serviced Mortgage Loan or REO Property described in the
parenthetical to the first sentence of this paragraph; provided, however, that
if any such Liquidation Proceeds are received with respect to any Corrected
Mortgaged Loan, and the Special Servicer is properly entitled to a Workout Fee
therefrom, such Workout Fee will be payable based on and from the portion of
such Liquidation Proceeds that constitute principal and/or interest.
Notwithstanding anything to the contrary herein, a Liquidation
Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from
the same proceeds on or with respect to such Mortgage Loan.
As further compensation for its activities hereunder, the
Special Servicer will also be entitled to receive the Special Servicer Standby
Fee. The Special Servicer Standby Fee will accrue with respect to each Mortgage
Loan (whether or not it is a Specially Serviced Mortgage Loan or a Mortgage Loan
as to which the related Mortgaged Property has become an REO Property), at the
Special Servicer Standby Fee Rate on the basis of the same principal amount and
for the same period respecting which any related interest payment due or deemed
due on such Mortgage Loan is computed, and will be payable by the Master
Servicer out of its Master Servicing Fee with respect to such Mortgage Loan for
each Collection Period.
The Special Servicer's right to receive the Special Servicing
Fee, the Special Servicer Standby Fee, the Workout Fee and/or the Liquidation
Fee may not be transferred in
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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
assumption fees and modification fees received on or with respect to Specially
Serviced Mortgage Loans shall be promptly paid to the Special Servicer by the
Master 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 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 Servicing 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) and not
otherwise allocable to cover Advance Interest in respect of the related
Specially Serviced Mortgage Loan, any Penalty Charges collected on the Specially
Serviced Mortgage Loans. The Special Servicer shall be required to pay out of
its own funds all overhead and general and administrative expenses incurred by
it in connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any Sub-Servicers retained
by it and the premiums for any blanket policy obtained by it insuring against
hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses
are not payable directly out of the Certificate Account, and the Special
Servicer shall not be entitled to reimbursement except as expressly provided in
this Agreement.
(e) If the Master Servicer or Special Servicer is required
under this Agreement to make a Servicing Advance, but neither does so within 15
days after such Advance is required to be made, the Trustee shall (subject to
Section 3.11(g) below), make such Advance.
(f) The Master Servicer, the Special Servicer and the Trustee
shall each be entitled to receive interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of each Servicing Advance made thereby
for so long as such Servicing Advance is outstanding, payable, FIRST, out of
Penalty Charges received on the Mortgage Loan or REO Loan as to which such
Servicing Advance was made and, THEN, once such Servicing Advance has been
reimbursed, out of general collections on the Mortgage Loans and REO Properties.
(g) Notwithstanding anything to the contrary set forth herein,
none of the Master Servicer, the Special Servicer or the Trustee shall be
required to make any Servicing Advance that it determines in its reasonable,
good faith judgment would constitute a Nonrecoverable Servicing Advance. In
addition, Nonrecoverable Servicing Advances shall be reimbursable pursuant to
Section 3.05 out of general collections on the Mortgage Loans and REO Properties
on deposit in the Certificate Account. The determination by the Master Servicer,
the Special Servicer or, if applicable, the Trustee, that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by
an Officer's Certificate delivered promptly to the
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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, including,
without limitation, engineers' reports, environmental surveys, inspection
reports, rent rolls, income and expense statements or similar reports, that the
Master Servicer or the Special Servicer may have obtained and that supports such
determination. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer or the Special
Servicer, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust Fund. The Trustee shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular Servicing Advance, and the Master Servicer
shall be entitled to rely on any determination of nonrecoverability that may
have been made by the Special Servicer with respect to a particular Servicing
Advance.
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 Master
Servicer's normal servicing procedures, but in any event at least once every two
years (or, if the related Mortgage Loan has a current balance of greater than
$5,000,000, 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 shall deliver to the Trustee a
copy of each such written report within 60 days of its preparation.
(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 Special Servicer's normal servicing
procedures, but in any event at least once per calendar year. 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
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deems material, (ii) any sale, transfer or abandonment of the Mortgaged Property
evident from such inspection, (iii) any adverse change in the condition or value
of the Mortgaged Property evident from such inspection that the Special Servicer
deems material, or (iv) any waste committed on the Mortgaged Property evident
from such inspection. The Special Servicer shall deliver to the Trustee and the
Master Servicer a copy of each such written report within 60 days of its
preparation.
(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 quarterly and annual operating statements and rent
rolls of the related Mortgaged Property, and financial statements of such
Mortgagor, if delivery of such items is required pursuant to the terms of the
related Mortgage. In addition, the Special Servicer shall obtain quarterly and
annual operating statements and rent rolls with respect to each REO Property.
The Master Servicer and Special Servicer 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 thereof.
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 March 31st of
each year, beginning March 31, 1998, an Officer's Certificate stating, as to the
signer thereof, that (i) a review of the activities of the Master Servicer or
the Special Servicer, as the case may be, during the preceding calendar year and
of its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
in all material respects its obligations under this Agreement throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and (iii) the Master Servicer or the Special Servicer, as the case may
be, has received no notice regarding qualification, or challenging the status,
of the Trust Fund as a REMIC 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 15 of each year, beginning April 15, 1998
(or, as to any such year, such earlier date as is contemplated by the last
sentence of this paragraph), the Master Servicer at its expense shall cause a
firm of independent public accountants (which may also render other services to
the Master Servicer) and that is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Trustee and to the Depositor to
the effect that (i) it has obtained a letter of representation regarding certain
matters from the management of the Master Servicer, which includes an assertion
that the Master Servicer has complied with certain minimum mortgage loan
servicing standards (to the extent applicable to
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commercial and multifamily mortgage loans), identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of commercial and
multifamily mortgage loans during the most recently completed calendar year and
(ii) on the basis of an examination conducted by such firm in accordance with
standards established by the American Institute of Certified Public Accountants,
such representation is fairly stated in all material respects, subject to such
exceptions and other qualifications that may be appropriate. In rendering its
report such firm may rely, as to matters relating to the direct servicing of
commercial and multifamily mortgage loans by Sub-Servicers, upon comparable
reports of firms of independent certified public accountants rendered on the
basis of examinations conducted in accordance with the same standards (rendered
within one year of such report) with respect to those Sub-Servicers.
The Special Servicer will deliver an annual accountants'
report only if, and in such form as may be, requested by the Rating Agencies.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably 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.
SECTION 3.16. Title to REO Property.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property within two years after the Trust Fund acquires ownership
of such REO Property for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) is granted an extension of time (an "REO Extension")
by the Internal Revenue Service to sell such REO Property or (ii) obtains for
the Trustee an Opinion of Counsel, addressed to the Trustee and the Special
Servicer, to the effect that the holding by the Trust Fund of such REO Property
subsequent to the second anniversary of such acquisition will not 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. If the Special
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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 period longer than two years 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 deposit, or cause to be
deposited, in the Certificate Account, or shall deliver to the Master Servicer
(which shall deposit such amounts into the Certificate Account), upon receipt,
all REO Revenues (net of the fees of any property manager payable therefrom),
Insurance Proceeds and Liquidation Proceeds received in respect of an REO
Property, subject to withdrawal pursuant to Section 3.05(a).
SECTION 3.17. Management of REO Property.
(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
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an REO Tax on income from such property, the Special Servicer
shall deliver to the Trustee, in writing, a proposed plan (the
"Proposed Plan") to manage such property as REO Property. Such
plan shall include potential sources of income, and to the
extent commercially feasible, estimates of the amount of
income from each such source. Within a reasonable period of
time after receipt of such plan, the Trustee shall consult
with the Special Servicer and shall advise the Special
Servicer of the Trust Fund's federal income tax reporting
position with respect to the various sources of income that
the Trust Fund would derive under the Proposed Plan. In
addition, the Trustee shall (to the maximum extent possible)
advise the Special Servicer of the estimated amount of taxes
that the Trust Fund would be required to pay with respect to
each such source of income. After receiving the information
described in the two preceding sentences from the Trustee, the
Special Servicer shall either (A) implement the Proposed Plan
(after acquiring the respective Mortgaged Property as REO
Property) or (B) manage and operate such property in a manner
that would not result in the imposition of an REO Tax on the
income derived from such property.
The Special Servicer's decision as to how each REO Property
shall be managed and operated shall in any event be based on the good faith and
reasonable judgment of the Special Servicer as to which means would (to the
extent commercially feasible) maximize the net after-tax REO Revenues received
by the Trust Fund with respect to such property without materially and adversely
affecting the Special Servicer's ability to sell such REO Property in accordance
with this Agreement and, to the extent consistent with the foregoing, in
accordance with the same manner that the Special Servicer would operate and
manage such REO Property if it were owned by the Special Servicer. 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.
(b) If title to any REO Property is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders solely for the purpose of its prompt
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or, except as permitted by Section 3.17(a), result in the receipt by
the Trust Fund of any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code or any "net income from foreclosure property"
which is subject to taxation under the REMIC Provisions. Subject to the
foregoing, however, the Special Servicer shall have full power and authority to
do any and all things in connection therewith as are in the best interests of
and for the benefit of the Certificateholders (as determined by the Special
Servicer in its good
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faith and reasonable judgment) and, consistent therewith, shall direct the
Master Servicer to withdraw from the Certificate Account, to the extent of
amounts on deposit therein with respect to each REO Property, and deliver to the
Special Servicer (for appropriate application), funds necessary for the proper
operation, management and maintenance of such REO Property, including, without
limitation:
(i) all insurance premiums due and payable in respect
of such REO Property;
(ii) all real estate taxes and assessments in respect
of such REO Property that may result in the imposition of a
lien thereon;
(iii) any ground rents in respect of such REO
Property; and
(iv) all costs and expenses necessary to maintain
such REO Property.
To the extent that amounts on deposit in the Certificate Account in respect of
any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Special Servicer shall advance
from its own funds such amount as is necessary for such purposes unless (as
evidenced by an Officer's Certificate delivered to the Trustee) the Special
Servicer would not make such advances if the Special Servicer owned such REO
Property or if such advances would, if made, constitute Nonrecoverable Servicing
Advances; provided, however, that the Special Servicer shall make any such
Servicing Advance if it is a necessary fee or expense incurred in connection
with the defense or prosecution of legal proceedings and such advance will be
deemed to constitute a recoverable Servicing Advance.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may
not be inconsistent herewith and shall reflect an agreement
reached at arm's length;
(ii) the fees of such Independent Contractor (which
shall be an expense of the Trust Fund) shall be reasonable and
customary in light of the nature and locality of the REO
Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor (A)
pay 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 revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
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(iv) none of the provisions of this Section 3.17(c)
relating to any such contract or to actions taken through any
such Independent Contractor shall be deemed to relieve the
Special Servicer of any of its duties and obligations
hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with
respect thereto to the same extent as if it alone were
performing all duties and obligations in connection with the
operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 3.18. Sale of Defaulted Mortgage Loans and REO
Properties.
(a) The parties hereto may sell or purchase, or permit the
sale or purchase of, a Mortgage Loan or REO Property only on the terms and
subject to the conditions set forth in this Section 3.18 or as otherwise
expressly provided in or contemplated by Sections 2.03(a) and 9.01.
(b) In the event that any Mortgage Loan becomes a Defaulted
Mortgage Loan and the Special Servicer has determined in good faith that such
Defaulted Mortgage Loan will become subject to foreclosure proceedings, the
Special Servicer shall promptly so notify, in writing, the Master Servicer and
the Trustee, and the Trustee shall so notify, in writing, within 10 days after
receipt of its notice, the Holders of the Controlling Class. The Majority
Certificateholder of the Controlling Class may at its (or their) option purchase
from the Trust Fund, at a price equal to the Purchase Price, any such Defaulted
Mortgage Loan. The Purchase Price for any Defaulted Mortgage Loan purchased
hereunder shall be deposited into the Certificate Account, and the Trustee, upon
receipt of an Officer's Certificate from the Master Servicer to the effect that
such deposit has been made, shall release or cause to be released to the
Majority Certificateholder of the Controlling Class (or any designee thereof)
the related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be necessary to
vest in the Majority Certificateholder of the Controlling Class (or any designee
thereof) ownership of such Defaulted Mortgage Loan. In connection with any such
purchase, the Special Servicer shall deliver the related Credit File to such
Certificateholder(s).
(c) If the Majority Certificateholder of the Controlling Class
has not purchased any Defaulted Mortgage Loan within 15 days of its having
received notice in respect thereof pursuant to the immediately preceding
subsection (b), either the Special Servicer or, subject to the Special
Servicer's prior rights in such regard, the Master Servicer may at its option
purchase such Defaulted Mortgage Loan from the Trust Fund, at a price equal to
the Purchase Price. The
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Purchase Price for any Defaulted Mortgage Loan purchased hereunder shall be
deposited into the Certificate Account, and the Trustee, upon receipt of an
Officer's Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the Master Servicer or
the Special Servicer, as applicable, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in the Master Servicer or the
Special Servicer, as applicable, such Defaulted Mortgage Loan. In connection
with any such purchase by the Master Servicer, the Special Servicer shall
deliver the related Credit File to the Master Servicer.
(d) The Special Servicer may offer to sell any Defaulted
Mortgage Loan not otherwise purchased by the Majority Certificateholder of the
Controlling Class, the Master Servicer or the Special Servicer pursuant to
subsection (b) or (c) above, if and when the Special Servicer determines,
consistent with its normal servicing procedures, that such a sale would produce
a greater recovery to Certificateholders on a present value basis than would
liquidation of the related Mortgaged Property. Such offering shall be made in a
commercially reasonable manner (which, for purposes hereof, includes an offer to
sell without representation or warranty other than customary warranties of
title, loan status, condition and similar customary matters, if liability for
breach thereof is limited to recourse against the Trust Fund) for a period of
not less than 10 days or more than 90 days. Unless the Special Servicer
determines that acceptance of any offer would not be in the best economic
interests of the Trust Fund, the Special Servicer shall accept the highest cash
offer received from any Person that constitutes a fair price for such Mortgage
Loan. In the absence of any offer determined as provided below to be fair, the
Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in
accordance with Section 3.09 and, otherwise, in accordance with its normal
servicing practices.
The Special Servicer shall use reasonable efforts to solicit
bids for each REO Property in such manner as will be reasonably likely to
realize a fair price within the time period provided for by Section 3.16(a). The
Special Servicer shall accept the first (and, if multiple bids are
contemporaneously received, highest) cash bid received from any Person that
constitutes a fair price for such REO Property. If the Special Servicer
determines, in its good faith and reasonable judgment, that it will be unable to
realize a fair price for any REO Property within the time constraints imposed by
Section 3.16(a), then the Special Servicer shall dispose of such REO Property
upon such terms and conditions as the Special Servicer shall deem necessary and
desirable to maximize the recovery thereon under the circumstances and, in
connection therewith, shall accept the highest outstanding cash bid, regardless
of from whom received.
The Special Servicer shall give the Trustee and the Master
Servicer not less than three Business Days' prior written notice of its
intention to sell any Defaulted Mortgage Loan or REO Property. No Interested
Person shall be obligated to submit a bid to purchase any Defaulted Mortgage
Loan or REO Property, and notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates may
bid for or purchase any Defaulted Mortgage Loan or any REO Property pursuant
hereto.
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(e) Whether any cash bid constitutes a fair price for any
Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of
Section 3.18(d), shall be determined by the Special Servicer, if the highest
bidder is a Person other than an Interested Person, and by the Trustee, if the
highest bidder is an Interested Person. In determining whether any offer
received from an Interested Person represents a fair price for any such Mortgage
Loan or REO Property, the Trustee shall be supplied with and shall rely on the
most recent Appraisal or updated Appraisal conducted in accordance with this
Agreement within the preceding 12-month period or, in the absence of any such
Appraisal, on a narrative appraisal prepared by a Qualified Appraiser, retained
by the Special Servicer. Such appraiser shall be selected by the Special
Servicer if the Special Servicer is not making an offer with respect to a
Defaulted Mortgage Loan or REO Property and shall be selected by the Master
Servicer if the Special Servicer is making such an offer. The cost of any such
narrative appraisal shall be covered by, and shall be reimbursable as, a
Servicing Advance. In determining whether any offer from a Person other than an
Interested Person constitutes a fair price for any such Mortgage Loan or REO
Property, the Special Servicer shall take into account (in addition to the
results of any Appraisal, updated Appraisal or narrative Appraisal that it may
have obtained pursuant to this Agreement within the prior 12 months), and in
determining whether any offer from an Interested Person constitutes a fair price
for any such Mortgage Loan or REO Property, any appraiser shall be instructed to
take into account, as applicable, among other factors, the period and amount of
any delinquency on the affected Defaulted Mortgage Loan, the occupancy level and
physical condition of the Mortgaged Property or REO Property, the state of the
local economy and the obligation to dispose of any REO Property within the time
period specified in Section 3.16(a). The Purchase Price for any Defaulted
Mortgage Loan or REO Property shall in all cases be deemed a fair price.
(f) Subject to subsections (a) through (e) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Mortgage Loan or REO Property, and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective offerors, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or exchanging offers without obligation to deposit such
amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or
any REO Property shall be final and without recourse to the Trustee or the Trust
Fund (except such recourse 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, neither the Special Servicer nor the Trustee shall
have any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
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(g) Any sale of a Defaulted Mortgage Loan or any REO Property
shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes
in the REMIC Provisions made subsequent to the Startup Day allow a sale for
other consideration).
(h) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, the Special Servicer shall not be obligated to accept the highest
cash offer if the Special Servicer determines, in its reasonable and good faith
judgment, that rejection of such offer would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash offer (from
any Person other than itself or an Affiliate) if it determines, in its
reasonable and good faith judgment, that acceptance of such offer would be in
the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations or the
terms offered by the prospective buyer making the lower offer are more
favorable).
SECTION 3.19. Additional Obligations of the Master Servicer.
(a) In connection with each Adjustable Rate Mortgage Loan
(and, if and to the extent applicable, any successor REO Loan), the Master
Servicer shall calculate adjustments in the Mortgage Rate and the Monthly
Payment and shall notify the Mortgagor of such adjustments, all in accordance
with the Mortgage Note and applicable law. In the event the Index for any
Adjustable Rate Mortgage Loan (or successor REO Loan) is not published or is
otherwise unavailable, the Master Servicer shall select a comparable alternative
index with respect to such Mortgage Loan (or successor REO Loan) over which it
has no direct control, which is readily verifiable and which is acceptable under
the terms of the related Mortgage Note. For so long as any of the Group 1 Loans
identified on the Mortgage Loan Schedule by loan numbers 1, 2, 3, 5, and 6 are
part of the Trust Fund, the Master Servicer shall calculate on each Formula 1
LIBOR Determination Date and promptly report to the Trustee the value of
SixMonth LIBOR (Formula 1) and, thereafter, the Trustee shall calculate
Six-Month LIBOR (Formula 1).
(b) The Master Servicer and the Special Servicer shall each
deliver to the other and to the Trustee (for inclusion in the Mortgage File)
copies of all Appraisals, environmental reports and engineering reports (or, in
each case, updates thereof) obtained with respect to any Mortgaged Property or
REO Property.
(c) No more frequently than once per calendar month, the
Special Servicer may require the Master Servicer, and the Master Servicer shall
be obligated, subject to the second following paragraph, to reimburse the
Special Servicer for any Servicing Advances made by but not previously
reimbursed to the Special Servicer, and to pay the Special Servicer interest
thereon at the Reimbursement Rate from the date made to, but not including, the
date of reimbursement. Such reimbursement and any accompanying payment of
interest shall be made within ten (10) days of the request therefor by wire
transfer of immediately available funds to an account designated by the Special
Servicer. Upon the Master Servicer's reimbursement to the Special Servicer of
any Servicing Advance and payment to the Special Servicer of interest
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thereon, all in accordance with this Section 3.19(c), the Master Servicer shall
for all purposes of this Agreement be deemed to have made such Servicing Advance
at the same time as the Special Servicer originally made such Advance, and
accordingly, the Master Servicer shall be entitled to reimbursement for such
Advance, together with interest thereon, at the same time, in the same manner
and to the same extent as the Master Servicer would otherwise have been entitled
if it had actually made such Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Advance, such
request to be made in writing and in a timely manner that does not materially
and adversely affect the interests of any Certificateholder. Subject to the
following paragraph, the Master Servicer shall have the obligation to make any
such Servicing Advance that it is requested by the Special Servicer to make
within ten days of the Master Servicer's receipt of such request. The Special
Servicer shall be relieved of any obligations with respect to an Advance that it
requests the Master Servicer to make (regardless of whether or not the Master
Servicer shall make such Advance). The Master Servicer shall be entitled to
reimbursement for 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
3.19(c), the Master Servicer shall not be required to make at the Special
Servicer's direction, or to reimburse the Special Servicer for, any Servicing
Advance if the Master Servicer determines in its reasonable, good faith judgment
that the Servicing Advance which the Special Servicer is directing the Master
Servicer to make or to reimburse to the Special Servicer hereunder, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
or would be, if made, a Nonrecoverable Servicing Advance. The Master Servicer
shall notify the Special Servicer in writing of such determination. Such notice
shall not obligate the Special Servicer to make any such proposed Servicing
Advance.
(d) Upon the earliest of (i) the date on which any Mortgage
Loan becomes a Modified Mortgage Loan, (ii) the 90th day following the
occurrence of any uncured delinquency in Monthly Payments with respect to any
Mortgage Loan, (iii) the date on which a receiver is appointed and continues in
such capacity in respect of the Mortgaged Property securing any Mortgage Loan
and (iv) the date on which the Mortgaged Property securing any Mortgage Loan
becomes an REO Property (each such Mortgage Loan and any related REO Loan, a
"Required Appraisal Loan"), the Master Servicer or Special Servicer, as
applicable, shall request and, within 30 days of the occurrence of such event
(or such longer period as the Master Servicer or the Special Servicer, as
applicable, 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; unless an Appraisal thereof had previously been obtained
within the prior twelve
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months. The cost of 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 has remained current for twelve
consecutive Monthly Payments, and no other Servicing Transfer Event has occurred
with respect thereto during the preceding twelve months), the Special Servicer
shall, within 30 days of each anniversary of such loan's becoming a Required
Appraisal Loan, order an update of the prior Appraisal (the cost of which will
be covered by, and reimbursable as, a Servicing Advance). Based upon such
Appraisal, the Special Servicer shall redetermine and report to the Trustee the
Appraisal Reduction Amount, if any, with respect to such loan.
(e) The Master Servicer shall deliver to the Trustee for
deposit in the Distribution Account on each Delinquency Advance Date, without
any right of reimbursement therefor, an amount equal to the aggregate of all
Balloon Payment Interest Shortfalls incurred in connection with Balloon Payments
received in respect of the Mortgage Pool during the most recently ended
Collection Period.
(f) The Master Servicer shall deliver to the Trustee for
deposit in the Distribution Account on each Delinquency Advance 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 Pool during the most
recently ended Collection Period, and (ii) that portion of the aggregate Master
Servicing Fees received by the Master Servicer during such Collection Period
that is, in the case of each Mortgage Loan and REO Loan, calculated at 0.055%
per annum.
SECTION 3.20. Modifications, Waivers, Amendments and
Consents.
(a) The Master Servicer and the Special Servicer each may
agree to any modification, waiver or amendment of any term of, forgive interest
on and principal of, capitalize interest on, permit the release, addition or
substitution of collateral securing, and/or permit the release of the Mortgagor
on or any guarantor of any Mortgage Loan it is required to service and
administer hereunder, without the consent of the Trustee or, except as
contemplated by clause (ii) below, any Certificateholder, subject, however, to
each of the following limitations, conditions and restrictions:
(i) other than as provided in Sections 3.02 and 3.08, the
Master Servicer (in such capacity) shall not agree to any modification,
waiver or amendment of any term of, or take any of the other acts
referenced in this Section 3.20(a) with respect to, any Mortgage Loan
that would affect the amount or timing of any related payment of
principal, interest or other amount payable thereunder or, 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
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term of, or take any of the other acts referenced in this Section
3.20(a) with respect to, a Specially Serviced Mortgage Loan that would
have any such effect, but only if, in the Special Servicer's reasonable
and good faith judgment, a material default on such Mortgage Loan has
occurred or a default in respect of payment on such Mortgage Loan is
reasonably foreseeable, and such modification, waiver, amendment or
other action is reasonably likely to produce a greater recovery to
Certificateholders on a present value basis, than would liquidation;
(ii) if any Person has been selected and is serving as
Extension Adviser, the Special Servicer may not extend the date on
which any Balloon Payment is scheduled to be due on any Specially
Serviced Mortgage Loan for more than thirty-six months beyond its
Stated Maturity Date unless such Extension Adviser has approved or is
deemed to have approved such extension pursuant to Section 3.26;
(iii) the Master Servicer may not extend the Stated Maturity
Date of any Mortgage Loan beyond the date that is two years prior to
the Rated Final Distribution Date;
(iv) neither the Master Servicer nor the Special Servicer
shall make or permit any modification, waiver or amendment of any term
of, or take any of the other acts referenced in this Section 3.20(a)
with respect to, any Mortgage Loan that would (A) cause REMIC I, REMIC
II or REMIC III to fail to qualify as a REMIC under the Code or 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 (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,
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containment, clean-up or remediation would be required under any then
applicable environmental laws and/or regulations; and
(vi) neither the Master Servicer nor the Special Servicer
shall release or substitute any collateral securing an outstanding
Mortgage Loan except as provided in Section 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) such release and/or substitution would not result in the
downgrade, qualification or withdrawal of the rating then assigned by
any Rating Agency to any Class of Certificates (as confirmed in writing
by each Rating Agency);
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 that is required under the terms of such Mortgage Loan in
effect on the Closing Date, and (y) notwithstanding clauses (i) through (vi)
above, neither the Master Servicer nor the Special Servicer shall be required to
oppose the confirmation of a plan in any bankruptcy or similar proceeding
involving a Mortgagor if in their reasonable and good faith judgment such
opposition would not ultimately prevent the confirmation of such plan or one
substantially similar. Neither the Master Servicer nor the Special Servicer may
extend the Maturity Date on any Mortgage Loan except pursuant to this Section
3.20(a) or as otherwise required under the related loan documents.
(b) The Special Servicer shall have no liability to the Trust
Fund, the Certificateholders or any other Person if its analysis and
determination that the modification, waiver, amendment or other action
contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Special Servicer and the
Special Servicer was not negligent in ascertaining the pertinent facts.
(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 Mortgaged 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) All modifications, waivers and amendments of the Mortgage
Loans entered into pursuant to this Section 3.20 shall be in writing.
(f) Each of the Master Servicer and the Special Servicer shall
notify the Trustee and such other party, in writing, of any modification, waiver
or amendment of any term of any Mortgage Loan and the date thereof, and shall
deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly (and in any event within 10 Business
Days) following the execution thereof.
SECTION 3.21. Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Mortgage Loan and if the Master Servicer is not
also the Special Servicer, the Master Servicer shall promptly give notice
thereof, and deliver the related Servicing File, to the Special Servicer and
shall use reasonable efforts to provide the Special Servicer with all
information, documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. The Master Servicer shall use reasonable efforts to comply with
the preceding sentence within five Business Days of the occurrence of each
related Servicing Transfer Event. The Special Servicer may, as to any delinquent
Mortgage Loan, prior to the occurrence of a Servicing Transfer Event with
respect thereto, request and obtain the foregoing documents and information.
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected Mortgage Loan and if the Master Servicer is not also the
Special Servicer, the Special Servicer shall promptly give notice thereof, and
return the related Servicing File, to the Master Servicer and upon giving such
notice, and returning such Servicing File, to the Master Servicer, the Special
Servicer's obligation to service such Mortgage Loan, and the Special Servicer's
right to receive the Special Servicing Fee with respect to such Mortgage Loan,
shall terminate, and the obligations of the Master Servicer to service and
administer such Mortgage Loan in accordance with this Agreement shall resume.
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Notwithstanding other provisions in this Agreement to the
contrary, the Master Servicer shall remain responsible for the billing and
collection, accounting, data collection, reporting and other basic Master
Servicer administrative functions with respect to Specially Serviced Mortgage
Loans, provided that the Special Servicer shall establish procedures for the
Master Servicer as to the application of receipts and tendered payments and
shall have the exclusive responsibility for and authority over all contacts with
and notices to Mortgagors and similar matters relating to each Specially
Serviced Mortgage Loan and the related Mortgaged Property.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Trustee originals of documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (with a copy of each such original to the Master Servicer), and copies of
any additional related Mortgage Loan information, including correspondence with
the related Mortgagor.
(c) Notwithstanding anything in this Agreement to the
contrary, in the event that the Master Servicer and the Special Servicer are the
same Person, all notices, certificates, information and consents required to be
given by the Master Servicer to the Special Servicer or vice versa shall be
deemed to be given without the necessity of any action on such Person's part.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may each
enter into SubServicing Agreements for the servicing and administration of all
or a part of the Mortgage Loans for which it is responsible hereunder, provided
that, in each case, the Sub-Servicing Agreement: (i) is not inconsistent with
this Agreement and shall provide that the Sub-Servicer will maintain errors and
omissions insurance and fidelity bond coverage as required of the Master
Servicer or the Special Servicer (whichever retained it) under Section 3.07
hereof; (ii) provides that if the Master Servicer or the Special Servicer, as
the case may be, shall for any reason no longer be the Master Servicer or
Special Servicer, as applicable, hereunder (including, without limitation, by
reason of an Event of Default or their termination hereunder), the Trustee or
its designee may thereupon assume all of the rights and, except to the extent
they arose prior to the date of assumption, obligations of the Master Servicer
or the Special Servicer, as the case may be, under such agreement; (iii) in the
case of a Sub-Servicing Agreement entered into by the Master Servicer, expressly
or effectively provides that (if the Master Servicer and the Special Servicer
are not the same Person) such agreement shall terminate with respect to any
Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a
Specially Serviced Mortgage Loan; and (iv) in the case of a Sub-Servicing
Agreement entered into by the Special Servicer, relates only to Specially
Serviced Mortgage Loans or REO Properties and expressly or effectively provides
that (if the Master Servicer and the Special Servicer are not the same Person)
such agreement shall terminate with respect to any such Mortgage Loan that
becomes a Corrected Mortgage Loan. References in this Agreement to actions taken
or to be taken by the Master Servicer or the Special Servicer, as the case may
be, include actions taken or to be taken by a Sub-Servicer on behalf of the
Master Servicer or the Special Servicer, as the case
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may be; and, in connection therewith, all amounts advanced by any Sub-Servicer
to satisfy the obligations of the Master Servicer or the Special Servicer, as
the case may be, hereunder to make Servicing Advances and Delinquency Advances
shall be deemed to have been advanced by the Master Servicer or the Special
Servicer, as the case may be, out of its own funds and, accordingly, such
Advances shall be recoverable by such Sub-Servicer in the same manner and out of
the same funds as if such Sub-Servicer were the Master Servicer or the Special
Servicer, as the case may be, and, for so long as they are outstanding, such
Advances shall accrue interest in accordance with Section 3.11(f) or Section
4.03(d), as applicable, such interest to be allocable between the Master
Servicer or the Special Servicer, as the case may be, and such Sub-Servicer as
they may agree. For purposes of this Agreement, the Master Servicer and the
Special Servicer each shall be deemed to have received any payment when the
Sub-Servicer receives such payment. The Master Servicer and the Special Servicer
each shall notify the Trustee and the Depositor and such other party in writing
promptly of the appointment of any Sub-Servicer. The Master Servicer and the
Special Servicer each shall deliver to the Trustee copies of all SubServicing
Agreements, and any amendments thereto and modifications thereof, promptly upon
its execution and delivery of such documents.
(b) Each Sub-Servicer shall be authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Master
Servicer and the Special Servicer, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the Certificateholders
or the Trust Fund) monitor the performance and enforce the obligations of each
Sub-Servicer retained by it under the related Sub-Servicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as the Master Servicer or the
Special Servicer, as the case may be, would require were it the owner of the
Mortgage Loans. The Master Servicer and the Special Servicer each shall have the
right to remove a Sub-Servicer retained by it at any time it considers such
removal to be in the best interests of Certificateholders.
(d) In the event the Trustee or its designee assumes the
rights and obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer each shall remain obligated and liable to the
Trustee and the Certificateholders for the servicing and administration of the
Mortgage Loans in accordance with
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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 3.23. Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.
The Certificateholders entitled to a majority of the Voting
Rights allocated to 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. 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 the approval of the Trustee, which
approval shall not be unreasonably withheld. The Trustee shall, promptly after
receiving any such notice, so notify the Rating Agencies. If the Trustee
approves the designated Person (based upon the servicing qualifications and
financial condition of such designated Person) as a replacement Special
Servicer, which approval shall not be unreasonably withheld, 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, downgraded or withdrawn; (ii) a written acceptance of all obligations
of the Special Servicer under this Agreement, executed by the designated Person;
and (iii) an Opinion of Counsel (at the expense of the Person designated to
become the Special Servicer or the Holders that made the designation) to the
effect that the designation of such Person to serve as Special Servicer is in
compliance with this Section 3.23 and all other applicable provisions of this
Agreement, that upon the execution and delivery of the written acceptance
referred to in the immediately preceding clause (ii), the designated Person
shall be bound by the terms of this Agreement and that this Agreement shall be
enforceable against the designated Person in accordance with its terms. The
existing Special Servicer shall be deemed to have resigned simultaneously with
such designated Person's becoming the Special Servicer hereunder; provided,
however, that (i) the resigning Special Servicer shall continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the effective date of such resignation, whether in respect of Servicing
Advances or otherwise, and (ii) it and its directors, officers, employees and
agents shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any such resignation. Such resigning Special Servicer shall
cooperate with the Trustee 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 Certificate
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.
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SECTION 3.24. Extension Adviser; Elections.
(a) The Holder or Holders of Certificates representing more
than 50% by Certificate Principal Balance of all the Registered Certificates
with Certificate Principal Balances (exclusive, if applicable, of the
Controlling Class and any Class of Registered Certificates subordinate to the
Controlling Class) shall be entitled to elect an extension adviser having the
rights and powers specified in Section 3.26 (the "EXTENSION ADVISER") and/or to
replace an existing Extension Adviser, all as provided in this Section 3.24.
Upon (i) the receipt by the Trustee of written requests for an election of an
Extension Adviser from the Holder or Holders of Certificates representing more
than 50% by Certificate Principal Balance of all the Registered Certificates
with Certificate Principal Balances (exclusive, if applicable, of the
Controlling Class and any Class of Registered Certificates subordinate to the
Controlling Class) or (ii) the resignation or removal of the Person acting as
Extension Adviser, an election of an Extension Adviser shall be held commencing
as soon as practicable thereafter. The Extension Adviser shall be elected for
the purpose of approving the actions of the Special Servicer specified herein in
respect of extending the maturity of any Specially Serviced Mortgage Loan beyond
the third anniversary of its Stated Maturity Date. The Extension Advisor shall
not be entitled to any compensation payable out of the Trust Fund or by the
Master Servicer, the Special Servicer, the Depositor or the Trustee (in their
respective capacities as such).
(b) After any such receipt, resignation or removal
contemplated by Section 3.24(a), the Trustee shall call a meeting of the Holders
of all Registered Certificates with Certificate Principal Balances (exclusive of
the Controlling Class, if applicable, and any Class of Registered Certificates
subordinate to the Controlling Class). Notice of the meeting of such Holders
shall be mailed or delivered to each such Holder not less than 10 nor more than
60 days prior to the meeting. The notice shall state the place and the time of
the meeting, which may be held by telephone. Holders of the Certificates
representing a majority of the Voting Rights allocated to the applicable Class
or Classes, present themselves or represented by proxy, shall constitute a
quorum for the nomination of an Extension Adviser, as the case may be. At the
meeting, each such Holder shall be entitled to nominate one Person to act as
Extension Adviser. The Trustee shall cause the election of the Extension Adviser
to be held as soon thereafter as convenient and in such manner as the Trustee
shall reasonably determine.
(c) Each Holder of Registered Certificates with a Certificate
Principal Balance (exclusive, if applicable, of Registered Certificates of the
Controlling Class and any Class of Registered Certificates subordinate to the
Controlling Class) shall be entitled to vote in each election of the Extension
Adviser. Immediately upon receipt by the Trustee of written votes (which have
not been rescinded) from the Holders of Certificates representing more than 50%
by Certificate Principal Balance of all the Registered Certificates with
Certificate Principal Balances (exclusive of the Controlling Class, if
applicable, and any Class of Registered Certificates subordinate to the
Controlling Class) which are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Extension Adviser. Prior to the initial
election of an Extension Adviser, First Security Commercial Mortgage L.P. shall
act as the Extension Adviser. Notwithstanding anything to the contrary herein,
the Special Servicer shall not have
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any right or obligation to consult with or to seek and/or obtain approval from
an Extension Adviser prior to acting, and provisions of this Agreement relating
thereto or requiring such shall be of no effect, in any event during any such
period that there is no Extension Adviser.
(d) The Extension Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Trustee, of the Holders
of Certificates representing more than 50% by Certificate Principal Balance of
all the Registered Certificates with Certificate Principal Balances (exclusive
of the Controlling Class, if applicable, and any Class of Registered
Certificates subordinate to the Controlling Class).
(e) The Trustee shall act as judge of each election of an
Extension Adviser and, absent manifest error, the determination of the results
of any such election by the Trustee shall be conclusive. Notwithstanding any
other provisions of this Section 3.24, the Trustee may make such reasonable
regulations as it may deem advisable for any such election.
SECTION 3.25. Limitation on Liability of Extension Adviser.
The Extension Adviser may act solely as a representative of
the interests of the Certificateholders entitled to vote in the election
thereof. The Extension Adviser shall not have 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 of
judgment made in good faith by the Extension Advisor unless it is proved that
the Extension Advisor was negligent in ascertaining the pertinent facts. By its
acceptance of a Certificate, each Certificateholder confirms its understanding
that the Extension Adviser may take actions that favor the interests of one or
more Classes of the Certificates over other Classes of the Certificates and that
the Extension Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates, and each
Certificateholder agrees to take no action against the Extension Adviser or any
of its officers, directors, employees, principals or agents as a result of such
a special relationship or conflict.
SECTION 3.26. Duties of Extension Adviser.
If there is an Extension Adviser, the Special Servicer may not
extend the maturity of any Specially Serviced Mortgage Loan beyond the third
anniversary of its Stated Maturity Date, unless: (i) the Special Servicer has
notified the Extension Adviser of its intention to take such action and has
supplied the Extension Adviser with such information as the Extension Adviser
may reasonably request to allow the Extension Adviser to make an informed
decision; and (ii) the Extension Adviser has not objected to such extension in
writing within ten days of receiving from the Special Servicer written notice
thereof and sufficient information to make an informed decision (if such written
objection to such extension has not been received by the Special Servicer within
such ten-day period, then the Extension Adviser's approval will be deemed to
have been given). In addition, the Extension Adviser shall be entitled to
confirm to its reasonable satisfaction that all conditions precedent to the
granting of any such extension set forth in this Agreement have been satisfied.
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SECTION 3.27. Special Servicer to Cooperate with the
Extension Adviser.
(a) The Special Servicer shall, with respect to any proposed
extension of the maturity of any Specially Serviced Mortgage Loan beyond the
third anniversary of its Stated Maturity Date, prepare and deliver to the
Extension Adviser a summary of such proposed action and an analysis of whether
such action is reasonably likely to produce a greater recovery to
Certificateholders on a present value basis than liquidation of such Mortgage
Loan. Such analysis shall specify the basis on which the Special Servicer has
made such determination, including the status of any existing material default
or the grounds for concluding that a payment default is reasonably foreseeable.
(b) All correspondence and communications with or from the
Extension Adviser may be conducted with or from the officers or employees of the
Extension Adviser whose names appear on a list of officers or employees
furnished to the Special Servicer by the Extension Adviser, as such list may
from time to time be amended.
(c) Any and all reports provided by the Special Servicer to
the Extension Adviser shall also be delivered to the Trustee.
SECTION 3.28. Representations and Warranties of the Master
Servicer and the Special Servicer.
GMACCM, in its capacity as both Master Servicer and Special
Servicer hereunder hereby represents and warrants to the Trustee, for its own
benefit and the benefit of the Certificateholders, and to the Depositor, as of
the Closing Date, that:
(i) GMACCM is a corporation duly organized, validly existing
and in good standing under the laws of the State of California, and
GMACCM is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by GMACCM,
and the performance and compliance with the terms of this Agreement by
GMACCM, will not violate GMACCM's articles of incorporation and by-laws
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 other parties hereto, constitutes a valid, legal
and binding obligation of GMACCM, enforceable against GMACCM in
accordance with the terms hereof, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
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(iv) GMACCM 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 might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of GMACCM or its properties or might
have consequences that would materially affect its consequences
hereunder.
(v) No litigation is pending or, to the best of the GMACCM's
knowledge, threatened against GMACCM which would prohibit GMACCM from
entering into this Agreement or, in GMACCM's good faith and reasonable
judgment, is likely to materially and adversely affect the ability of
GMACCM to perform its obligations under this Agreement.
(vi) GMACCM has errors and omissions insurance coverage which
is in full force and effect and complies with the requirements of
Section 3.07 hereof.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall be deemed to
apply the Available Distribution Amount for such date for the following purposes
and in the following order of priority:
(i) to pay interest to REMIC II in respect of the various
REMIC I Regular Interests, up to an amount equal to, and PRO RATA in
accordance with, all Uncertificated Distributable Interests 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 or REO Loan, 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 pay to the
Holders of the Class R-I Certificates, in accordance with Section 4.01(c), that
portion, if any, of the Available Distribution Amount for such date that has not
otherwise been deemed paid to REMIC II in respect of the REMIC I Regular
Interest 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 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
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.
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(b) On each Distribution Date, the Trustee shall be deemed to apply
0.1% of the REMIC II Distribution Amount (such 0.1% thereof, the "Sub-REMIC II
Distribution Amount") for such date for the following purposes and in the
following order of priority:
(i) to pay interest to REMIC III in respect of REMIC II
Regular Interests A- 1, A-2A, A-2B, LG1, LG2 and X-1, up to an amount
equal to, and PRO RATA in accordance with, (A) in the case of each of
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2A and REMIC
II Regular Interest A-2B, the amount of Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for such
Distribution Date and, to the extent not previously deemed paid, for
all prior Distribution Dates, (B) in the case of each of REMIC II
Regular Interest LG1 and REMIC II Regular Interest LG2, 0.1% of the
amount of the Class X-2 Share of the Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for such
Distribution Date and, to the extent not previously deemed paid, for
all prior Distribution Dates, and (C) in the case of REMIC II Regular
Interest X-1, 0.1% of the amount of the Uncertificated Distributable
Interest in respect of such REMIC II 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 III: (A) in respect of the
Principal Distribution Amount for Loan Group 1 for such Distribution
Date, first in respect of REMIC II Regular Interest A-1, second in
respect of REMIC II Regular Interest A-2A, and third in respect of
REMIC II Regular Interest A-2B, in each case, up to an amount equal to
the lesser of (1) the then Uncertificated Principal Balance of such
REMIC II Regular Interest and (2) the remaining portion of an amount
equal to 0.1% of such Principal Distribution Amount; and (B) in respect
of the Principal Distribution Amount for Loan Group 2 for such
Distribution Date, first in respect of REMIC II Regular Interest A-2A,
second in respect of REMIC II Regular Interest A-2B, and third in
respect of REMIC II Regular Interest A-1, in each case, up to an amount
equal to the lesser of (1) the then Uncertificated Principal Balance of
such REMIC II Regular Interest and (2) the remaining portion of an
amount equal to 0.1% of such Principal Distribution Amount; provided
that, if the remaining portion of the Sub-REMIC II Distribution Amount
for such Distribution Date that is distributable pursuant to this
clause (ii), is less than 0.1% of the Aggregate Principal Distribution
Amount for such date, payments pursuant to this clause (ii) in respect
of the Principal Distribution Amounts with respect to the two Loan
Groups shall be deemed made on a PRO RATA basis in accordance with the
relative sizes of such Principal Distribution Amounts;
(iii) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II
Regular Interest A-1, REMIC II Regular Interest A-2A and REMIC II
Regular Interest A-2B, up to an amount equal to, and PRO RATA as among
such REMIC II Regular Interests in accordance with, the respective
amounts of Realized Losses and Additional Trust Fund Expenses, if any,
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previously deemed allocated to such REMIC II Regular Interests and for
which no reimbursement has previously been deemed paid; and
(iv) to make payments to REMIC III in respect of REMIC II
Regular Interests B, C, D, E, F, G and H as contemplated below;
provided that, on each Distribution Date after the aggregate of the
Uncertificated Principal Balances of REMIC II Regular Interests B, C, D, E, F, G
and H has been reduced to zero, and in any event on the Final Distribution Date,
the payments of principal to be deemed made pursuant to clause (ii) above, will
be so deemed made to REMIC III in respect of REMIC II Regular Interests A-1,
A-2A and A-2B, up to an amount equal to, and PRO RATA as among such REMIC II
Regular Interests in accordance with, the respective then Uncertificated
Principal Balances of such REMIC II Regular Interests, and without regard to the
Principal Distribution Amounts with respect to the two Loan Groups for such
date.
On each Distribution Date, following the foregoing series of deemed
payments, the Trustee shall be deemed to apply the remaining portion, if any, of
the Sub-REMIC II Distribution Amount for such date that was deemed applied to
such payments, for the following purposes and in the following order of
priority:
(i) to pay interest to REMIC III in respect of REMIC II
Regular Interest B, up to an amount equal to all Uncertificated
Distributable Interest in respect of such REMIC II 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 III in respect of REMIC II
Regular Interest B, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Date (net of any payments of principal
deemed made to REMIC III in respect of REMIC II Regular Interests A-1,
A- 2A and A-2B on such Distribution Date);
(iii) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II
Regular Interest B, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to
such REMIC II Regular Interest and for which no reimbursement has
previously been deemed paid;
(iv) to pay interest to REMIC III in respect of REMIC II
Regular Interest C, up to an amount equal to all Uncertificated
Distributable Interest in respect of such REMIC II Regular Interest for
such Distribution Date and, to the extent not previously deemed paid,
for all prior Distribution Dates;
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(v) to pay principal to REMIC III in respect of REMIC II
Regular Interest C, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Date (net of any payments of principal
deemed made to REMIC III in respect of REMIC II Regular Interests A-1,
A- 2A, A-2B and B on such Distribution Date);
(vi) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II
Regular Interest C, up to an amount equal all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to
such REMIC II Regular Interest and for which no reimbursement has
previously been deemed paid;
(vii) to pay interest to REMIC III in respect of REMIC II
Regular Interest D, up to an amount equal to all Uncertificated
Distributable Interest in respect of such REMIC II Regular Interest for
such Distribution Date and, to the extent not previously deemed paid,
for all prior Distribution Dates;
(viii) to pay principal to REMIC III in respect of REMIC II
Regular Interest D, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Date (net of any payments of principal
deemed made to REMIC III in respect of REMIC II Regular Interests A-1,
A- 2A, A-2B, B and C on such Distribution Date);
(ix) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II
Regular Interest D, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to
such REMIC II Regular Interest and for which no reimbursement has
previously been deemed paid;
(x) to pay interest to REMIC III in respect of REMIC II
Regular Interest E, up to an amount equal to all Uncertificated
Distributable Interest in respect of such REMIC II Regular Interest for
such Distribution Date and, to the extent not previously deemed paid,
for all prior Distribution Dates;
(xi) to pay principal to REMIC III in respect of REMIC II
Regular Interest E, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Date (net of any payments of principal
deemed made to REMIC III in respect of REMIC II Regular Interests A-1,
A- 2A, A-2B, B, C and D on such Distribution Date);
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(xii) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II
Regular Interest E, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to
such REMIC II Regular Interest and for which no reimbursement has
previously been deemed paid;
(xiii) to pay interest to REMIC III in respect of REMIC II
Regular Interest F, up to an amount equal to all Uncertificated
Distributable Interest in respect of such REMIC II Regular Interest for
such Distribution Date and, to the extent not previously deemed paid,
for all prior Distribution Dates;
(xiv) to pay principal to REMIC III in respect of REMIC II
Regular Interest F, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Amount (net of any payments of principal
deemed made to REMIC III in respect of REMIC II Regular Interests A-1,
A- 2A, A-2B, B, C, D and E on such Distribution Date);
(xv) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II
Regular Interest F, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to
such REMIC II Regular Interest and for which no reimbursement has
previously been deemed paid;
(xvi) to pay interest to REMIC III in respect of REMIC II
Regular Interest G, up to an amount equal to all Uncertificated
Distributable Interest in respect of such REMIC II Regular Interest for
such Distribution Date and, to the extent not previously deemed paid,
for all prior Distribution Dates;
(xvii) to pay principal to REMIC III in respect of REMIC II
Regular Interest G, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Amount (net of any payments of principal
deemed made to REMIC III in respect of REMIC II Regular Interests A-1,
A- 2A, A-2B, B, C, D, E and F on such Distribution Date);
(xviii) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II
Regular Interest G, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to
such REMIC II Regular Interest and for which no reimbursement has
previously been deemed paid;
(xix) to pay interest to REMIC III in respect of REMIC II
Regular Interest H, up to an amount equal to all Uncertificated
Distributable Interest in respect of such
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REMIC II Regular Interest for such Distribution Date and, to the extent
not previously deemed paid, for all prior Distribution Dates;
(xx) to pay principal to REMIC III in respect of REMIC II
Regular Interest H, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Amount (net of any payments of principal
deemed made to REMIC III in respect of REMIC II Regular Interests A-1,
A- 2A, A-2B, B, C, D, E, F and G on such Distribution Date);
(xxi) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II
Regular Interest H, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to
such REMIC II Regular Interest and for which no reimbursement has
previously been deemed paid.
provided that, on the Final Distribution Date, the payments of principal to be
deemed made pursuant to any of clauses (ii), (v), (viii), (xi), (xiv), (xvii)
and (xx) above in respect of REMIC II Regular Interests B, C, D, E, F, G and H,
will be so deemed made to REMIC III in respect of each such REMIC II Regular
Interest, up to an amount equal to the then Uncertificated Principal Balance of
such REMIC II Regular Interest, and without regard to the Principal Distribution
Amounts with respect to the two Loan Groups for such date.
On each Distribution Date, following the foregoing two series of deemed
payments, the Trustee shall be deemed to apply the entire remaining REMIC II
Distribution Amount (including, without limitation, any remaining portion of the
Sub-REMIC II Distribution Amount) for such date not otherwise deemed applied to
make such respective series of payments contemplated by the preceding two
paragraphs, for the following purposes and in the following order of priority:
(i) to pay interest to REMIC III in respect of REMIC II
Regular Interests LG1, LG2 and X-1, up to an amount equal to, and PRO
RATA in accordance with, all Uncertificated Distributable Interest in
respect of each such REMIC II Regular Interest for such Distribution
Date and, to the extent not previously deemed paid, for all prior
Distribution Dates (net of any portion of such interest deemed paid on
such Distribution Date pursuant to the foregoing provisions of this
Section 4.01(a));
(ii) to pay principal to REMIC III: (A) in respect of REMIC II
Regular Interest LG1, up to an amount equal to the excess, if any, of
(1) the then Uncertificated Principal Balance of such REMIC II Regular
Interest, over (2) an amount equal to 99.9% of the aggregate Stated
Principal Balance of Loan Group 1 that will be outstanding immediately
following such Distribution Date; and (B) in respect of REMIC II
Regular Interest LG2, up to an amount equal to the excess, if any, of
(1) the then Uncertificated Principal Balance of such REMIC II Regular
Interest, over (2) an amount equal to 99.9%
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of the aggregate Stated Principal Balance of Loan Group 2 that will be
outstanding immediately following such Distribution Date; provided
that, if the remaining portion of the Available Distribution Amount for
such Distribution Date that is distributable pursuant to this clause
(ii), is less than the aggregate of the two excesses referred to in
subclauses (A) and (B) of this clause (ii), payments pursuant to this
clause (ii) in respect of REMIC II Regular Interest LG1 and REMIC II
Regular Interest LG2, respectively, shall be deemed made on a PRO RATA
basis in accordance with the relative sizes of such excesses; and
(iii) to reimburse REMIC III for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC II
Regular Interest LG1 and REMIC II Regular Interest LG2, up to an amount
equal to, and PRO RATA as between such REMIC II Regular Interests in
accordance with, the respective amounts of Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to
such REMIC II Regular Interests and for which no reimbursement has
previously been deemed paid;
provided that, on the Final Distribution Date, the payments of principal to be
deemed made pursuant to clause (ii) above, will be so deemed made to REMIC III
in respect of REMIC II Regular Interests LG1 and LG2, up to an amount equal to,
and PRO RATA as between such REMIC II Regular Interests in accordance with, the
respective then Uncertificated Principal Balances of such REMIC II Regular
Interests.
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
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 Interest LG1, in the case of each such
Prepayment Premium received with respect to a Group 1 Loan, and REMIC II Regular
Interest LG2, in the case of each such Prepayment Premium received with respect
to a Group 2 Loan.
(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
net 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: (A) in respect of the Principal
Distribution Amount for Loan Group 1 for such Distribution
Date, first to the Holders of the Class A-1 Certificates,
second to the Holders of the Class A-2A Certificates and third
to the Holders of the Class A-2B 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; and (B) in respect of the
Principal Distribution Amount for Loan Group 2 for such
Distribution Date, FIRST to Holders of the Class A-2A
Certificates, SECOND to the Holders of the Class A-2B
Certificates and THIRD to the Holders of the Class A-1
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; provided that, if
the remaining portion of the Available Distribution Amount for
such Distribution Date that is distributable pursuant to this
clause (ii), is less than the Aggregate Principal Distribution
Amount for such date, payments pursuant to this clause (ii) in
respect of the Principal Distribution Amounts with respect to
the two Loan Groups shall be made on a PRO RATA basis in
accordance with the relative sizes of such Principal
Distribution Amounts;
(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, and without regard
to the Principal Distribution Amounts with respect to the two Loan
Groups for such date. References to "remaining Principal Distribution
Amount" with respect to either Loan Group in clause (ii) above, shall
be to the Principal Distribution Amount with respect to such Loan Group
for such Distribution Date, net of any
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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
Aggregate Principal Distribution Amount for such Distribution
Date;
(iii) to reimburse the Holders of the Class B
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed
allocated to such Class of Certificates and for which no
reimbursement has previously been paid;
(iv) to pay interest to the Holders of the Class C
Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A and
Class B Certificates have been reduced to zero, to pay
principal to the Holders of the Class C Certificates, up to an
amount equal to the lesser of (A) the then outstanding Class
Principal Balance of such Class of Certificates and (B) the
remaining Aggregate 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;
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(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 Aggregate 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 Aggregate Principal
Distribution Amount for such Distribution Date;
(xii) to reimburse the Holders of the Class E
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed
allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xiii) to pay interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates
for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A,
Class B, Class C, Class D and Class E Certificates have been
reduced to zero, to pay principal to the Holders of the Class
F Certificates, up to an amount equal to the lesser of (A) the
then outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Aggregate 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;
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(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 Aggregate
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
Aggregate Principal Distribution Amount for such Distribution
Date;
(xxi) to reimburse the Holders of the Class H
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed
allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxii) to 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;
(xxiii) 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
(xxiv) to pay to the Holders of the Class R-III
Certificates the balance, if any, of the Available
Distribution Amount for such Distribution Date;
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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) and (xx)
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, and without
regard to the Principal Distribution Amounts with respect to the two Loan Groups
for such date. References to "remaining Aggregate Principal Distribution Amount"
in any of clauses (ii), (v), (viii), (xi), (xiv), (xvii) and (xx) 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 Aggregate Principal
Distribution Amount for such Distribution Date, net of any payments of principal
made in respect thereof to the Holders of each Class of Principal Balance
Certificates that have a higher Payment Priority.
On each Distribution Date, the Trustee shall withdraw
any amounts then on deposit in the Distribution Account that represent
Prepayment Premiums collected during or prior to the related Collection Period
and shall distribute such amounts, in each case, subject to available funds, as
additional interest, as follows:
(i) if such Prepayment Premium was received with
respect to a Group 1 Loan, to the Holders of the Class X-1
Certificates; and
(ii) if such Prepayment Premium was received with
respect to a Group 2 Loan:
FIRST, on a PRO RATA basis in accordance with their
respective entitlements: (A) to the Holders of the
Class X-2 Certificates, up to an amount (not less
than zero) equal to (1) the present value (discounted
at the Discount Rate for the Class X-2 Certificates
plus the Spread Rate for the Class X-2 Certificates)
of the aggregate interest that would have been paid
in respect of the Class X-2 Certificates from the
Distribution Date occurring in the following month
until the Class Notional Amount of the Class X-2
Certificates would have been reduced to zero had the
related principal prepayment not occurred, minus (2)
the present value (discounted at the Discount Rate
for the Class X-2 Certificates plus the Spread Rate
for the Class X-2 Certificates) of the aggregate
interest that is to be paid in respect of the Class
X-2 Certificates from the Distribution Date occurring
in the following month until the Class Notional
Amount of the Class X-2 Certificates is to be reduced
to zero after taking account of such principal
prepayment; and (B) to the Holders of the Class A-2A
Certificates, up to an amount (not less than zero)
equal to (1) the present value (discounted at the
Discount Rate for the Class A-2A Certificates plus
the Spread Rate for the Class A-2A Certificates) of
the aggregate principal and interest that would have
been paid in respect of the Class A-2A Certificates
from the Distribution Date occurring in the following
month until the Class Principal Balance of the Class
A-2A Certificates would have been reduced
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to zero had the related principal prepayment not
occurred, minus (2) the sum of the portion of such
principal prepayment distributed in respect of the
Class A-2A Certificates and the present value
(discounted at the Discount Rate for the Class A-2A
Certificates plus the Spread Rate for the Class A-2A
Certificates) of the aggregate principal and interest
that is to be paid in respect of the Class A-2A
Certificates from the Distribution Date occurring in
the following month until the Class Principal Balance
of the Class A-2A Certificates is to be reduced to
zero after taking account of such principal
prepayment; and (C) to the Holders of the Class A-2B
Certificates, up to an amount (not less than zero)
equal to (1) the present value (discounted at the
Discount Rate for the Class A-2B Certificates plus
the Spread Rate for the Class A-2B Certificates) of
the aggregate principal and interest that would have
been paid in respect of the Class A-2B Certificates
from the Distribution Date occurring in the following
month until the Class Principal Balance of the Class
A-2B Certificates would have been reduced to zero had
the related principal prepayment not occurred, minus
(2) the sum of the portion of the related principal
prepayment distributed in respect of the Class A-2B
Certificates and the present value (discounted at the
Discount Rate for the Class A-2B Certificates plus
the Spread Rate for the Class A-2B Certificates) of
the aggregate principal and interest that is to be
paid in respect of the Class A-2B Certificates from
the Distribution Date occurring in the following
month until the Certificate Principal Balance of the
Class A-2B Certificates is to be reduced to zero
after taking account of such principal prepayment;
SECOND, to the extent of any portion of such
Prepayment Premium remaining following the
distributions made pursuant to the immediately
preceding clause FIRST, to the Holders of the other
Classes of Registered Certificates, in alphabetical
order of Class designation, in each case in the same
manner and amount as described for the Class A-2A and
Class A-2B Certificates in subclauses (2) and (3) of
the immediately preceding clause FIRST (except that
the Discount Rate and Spread Rate for each such Class
shall correspond to the applicable rates set forth in
the respective definitions thereof); and
LAST, to the Holders of the Class R-III Certificates.
The foregoing calculations in connection with the distribution of Prepayment
Premiums (as well as the calculation of Discount Rates) shall be made by
assuming no future prepayments on or in respect of the Mortgage Loans during,
and by otherwise applying the Maturity Assumptions at a 0% CPR to, the period
subsequent to the end of the Collection Period in which the related principal
prepayment was received. If more than one principal prepayment occurs with
respect
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to Loan Group 2 during any Collection Period, then the foregoing calculations
shall be applied collectively for all such principal prepayments in the
aggregate.
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).
(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 below, all such distributions with respect to each Class on
each Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates) and is the registered owner of Certificates
the aggregate initial Certificate Principal Balance of which is at least
$5,000,000 (or, alternatively, is the registered owner of all the Certificates
of any Class of Interest Only Certificates), 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.
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(f) The rights of the Certificateholders to receive
distributions from the proceeds of the Trust Fund in respect of their
Certificates, and all rights and interests of the Certificateholders in and to
such distributions, shall be as set forth in this Agreement. Neither the Holders
of any Class of Certificates nor any party hereto shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the Certificates.
Distributions in reimbursement of Realized Losses and Additional Trust Fund
Expenses previously allocated to a Class of Certificates shall not constitute
distributions of principal and shall not result in a reduction of the related
Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at
the offices of the Certificate Registrar or such other location therein
specified, and
(ii) no interest shall accrue on such Certificates from and
after 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 nontendering 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
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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.
SECTION 4.02. Statements to Certificateholders; Certain
Reports by the Master Servicer and the Special
Servicer.
(a) On each Distribution Date, the Trustee shall forward by
mail to all of the Holders of each Class of Certificates (and, in the case of a
Class of Book-Entry Certificates, to each related Certificate Owner that makes a
written request therefor and certifies as to its Ownership Interest in such
Class) and to the Rating Agencies a written report (a "Distribution Date
Statement") setting forth the following information:
(i) the amount of distributions, if any, made on such
Distribution Date to the holders of each Class of Principal
Balance Certificates and applied to reduce the respective
Class Principal Balances thereof;
(ii) the amount of distributions, if any, made on
such Distribution Date to the Holders of each Class of REMIC
III Regular Certificates allocable to (A) Distributable
Certificate Interest and (B) Prepayment Premiums;
(iii) the amount of any distributions made on such
Distribution Date to the Holders of each Class of Residual
Certificates;
(iv) the aggregate amount of Delinquency Advances
made in respect of such Distribution Date;
(v) the aggregate amount of servicing compensation
retained by or paid to the Master Servicer and the Special
Servicer in respect of the related Collection Period;
(vi) the aggregate Stated Principal Balance of each
Loan Group and of the Mortgage Pool immediately before and
after such Distribution Date and the percentage of the Cut-off
Date Principal Balance of each Loan Group and the Mortgage
Pool which remains outstanding immediately after such
Distribution Date;
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(vii) the number, aggregate principal balance,
weighted average remaining term to maturity and weighted
average Mortgage Rate of the outstanding Mortgage Loans in
each Loan Group and in the Mortgage Pool at the close of
business on the related Determination Date;
(viii) as of the related Determination Date, the
number and aggregate unpaid principal balance of Mortgage
Loans in each Loan Group and in the Mortgage Pool (A)
delinquent one month, (B) delinquent two months, (C)
delinquent three or more months, (D) that are Specially
Serviced Mortgage Loans but are not delinquent or (E) as to
which foreclosure proceedings have been commenced;
(ix) with respect to 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;
(x) 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;
(xi) 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 (within the
meaning of 12 C.F.R. ss. 571.13 or comparable provision) 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;
(xii) 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 and the portion thereof included in the Available
Distribution Amount for such Distribution Date;
(xiii) the Distributable Certificate Interest in
respect of each Class of REMIC III Regular Certificates for
such Distribution Date;
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(xiv) 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;
(xv) the Pass-Through Rate or Effective Pass-Through
Rate, as the case may be, for each Class of REMIC III Regular
Certificates for such Distribution Date and the next
Distribution Date;
(xvi) the Class Principal Balance, Class Notional
Amount or Effective 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, Class Notional Amount or Effective Class Notional
Amount, as the case may be, of each such Class due to Realized
Losses and Additional Trust Fund Expenses;
(xvii) the Certificate Factor for each Class of REMIC
III Regular Certificates immediately following such
Distribution Date;
(xviii) the Principal Distribution Amount with
respect to each Loan Group for such Distribution Date;
(xix) 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 (in each case separately identifying to which Loan
Group they relate);
(xx) 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;
(xxi) any Appraisal Reduction Amounts on a
loan-by-loan basis, and the total Appraisal Reduction Amounts,
as of such Distribution Date;
(xxii) the aggregate amount of any Balloon Payment
Interest Excesses and Balloon Payment Interest Shortfalls (in
each case identifying the amounts relating to each Loan
Group); and
(xxiii) such additional information as contemplated
by Exhibit J hereto.
In the case of information furnished pursuant to subclauses (i), (ii), (iii) and
(xvi) 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.
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In addition, the Trustee shall so deliver or cause to be
delivered to such Certificateholders and Certificate Owners and the Rating
Agencies, at the same time that the Distribution Date Statement is delivered
thereto, each (i) Delinquent Loan Status Report, (ii) REO Status Report, (iii)
Historical Loan Modification Report, (iv) Special Servicer Loan Status Report
and (v) Historical Loss Report (such five reports, collectively with the
Distribution Date Statement and the Operating Statement Analysis, the
"Certificateholder Reports") that has been received or prepared by the Trustee
since the prior Distribution Date. The form of any Certificateholder Report may
change over time.
The Trustee shall make available to Certificateholders and
other interested parties certain information via electronic transmission as may
be agreed upon by the Depositor and the Trustee. In addition, the Trustee shall
make available to each Certificateholder, to each Certificate Owner that makes a
written request therefor and certifies as to its Ownership Interest in any Class
of Book-Entry Certificates, and to the Rating Agencies, a report (based on
information received from the Master Servicer and in a format mutually
acceptable to the Trustee and the Master Servicer) containing, as and to the
extent received from the Master Servicer, information regarding the Mortgage
Pool and each Loan Group as of the close of business on the related
Determination Date, which report shall contain substantially the categories of
information regarding the Mortgage Loans set forth in Exhibit J hereto under the
caption "Certain Characteristics of the Mortgage Loans" (calculated, where
applicable, on the basis of the most recent relevant information provided by the
Mortgagors to the Master Servicer or the Special Servicer and by the Master
Servicer or the Special Servicer, as the case may be, to the Trustee) and such
information shall be presented in a loan-by-loan and tabular format
substantially similar to the formats utilized in Exhibit J hereto (provided that
no information will be provided as to any repair and replacement or other cash
reserve and the only financial information to be reported on an ongoing basis
will be the Most Recent NOI (as defined in Exhibit J hereto) and a debt service
coverage ratio calculated on the basis thereof).
On the Distribution Date that occurs during the first month of
each calendar quarter, the Trustee shall deliver or shall cause to be delivered
to each Certificateholder, to each Certificate Owner that makes a written
request therefor and certifies as to its Ownership Interest in any Class of
Book-Entry Certificates and to the Rating Agencies, a copy of the Operating
Statement Analysis of the Master Servicer which the Trustee has most recently
received.
On each Distribution Date, the Trustee shall forward or make
available electronically to the Depositor, to the Master Servicer, to the
Special Servicer and, in the case of reports regarding a Class of Book-Entry
Certificates, any particular party that the Depository may designate, a copy of
the reports forwarded to the Holders of the Certificates on such Distribution
Date.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall furnish to each Person who at any time during
the calendar year was a Holder of a Certificate a statement containing the
information as to the applicable Class set forth in clauses (i), (ii) and (iii)
of the description of Distribution Date Statements above aggregated for
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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 (F) the Trustee shall be entitled to distribute or make
available such Additional Information in accordance with such reasonable rules
and procedures as it may deem necessary or appropriate (which may include the
requirement that an agreement that provides such information shall be used
solely for purposes of evaluating the investment characteristics or valuation of
the Certificates be executed by the recipient, if and to the extent the Trustee
deems the same to be necessary or appropriate). Nothing herein shall be
construed to impose upon the Trustee any obligation or duty to furnish or
distribute any Additional Information to any Person in any instance, and the
Trustee shall
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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
deliver all the reports delivered or made available pursuant to this Section
4.02(a) to the Certificateholders and Certificate Owners to Bloomberg Financial
Markets, L.P. ("Bloomberg") using a format and media mutually acceptable to the
Trustee and Bloomberg.
(b) At or before 11:00 a.m. (New York City time) on the third
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 the Trustee shall deliver to the Special Servicer), in
writing and on a computer-readable medium, in form reasonably acceptable to the
Trustee (but which form may change over time), including, without limitation, on
a loan-by-loan basis if determined by the Trustee to be necessary to comply with
the requirements relating thereto that are set forth in this Agreement, the
following reports: (1) a Delinquent Loan Status Report, (2) an REO Status
Report, (3) a Historical Loan Modification Report, (4) a Historical Loss Report,
(5) the Special Servicer Loan Status Report most recently received by the Master
Servicer and (6) a single report (the "Collection Report") setting forth the
information specified in clauses (i) through (vii) below (the amounts and
allocations of payments, collections, fees and expenses with respect to
Specially Serviced Mortgage Loans and REO Properties to be based upon the report
to be delivered by the Special Servicer to the Master Servicer on the second
Business Day after the related Determination Date, in the form required by
Section 4.02(c) below):
(i) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account in respect of such
Distribution Date that is allocable to principal on or in respect of
the Mortgage Loans and any REO Loans in each Loan Group, separately
identifying the aggregate amount of any Principal Prepayments included
therein, and (if different) the Principal Distribution Amount with
respect to such Loan Group 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 and (B) Prepayment Premiums
(separately identifying to which Loan Group they relate);
(iii) the aggregate amount of any Delinquency Advances
(specifying the principal and interest portions thereof separately) to
be made pursuant to Section 4.03 of this Agreement that are included in
the amounts to be deposited in the Distribution Account (separately
identifying to which Loan Group they relate);
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(iv) the information required to be included in the
Distribution Date Statement for the next succeeding Distribution Date
and described in clauses (iv) - (xii) and (xix) - (xxi) 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 (separately
identifying to which Loan Group each such Mortgage Loan relates);
(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); and
(vii) such additional information as is contemplated in
Exhibit J hereto.
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 a report, in writing and in a computer-readable medium, in form
reasonably acceptable to the Trustee, containing the information with respect to
the Mortgage Pool and each Loan Group necessary for the Trustee to prepare with
respect to the Mortgage Pool and each Loan Group the additional schedules and
tables required to be made available by the Trustee pursuant to Section 4.02(a)
in substantially the same formats set forth under the caption "Annex A: Certain
Characteristics of the Mortgage Loans" in the Prospectus Supplement, as well as
to prepare an updated Mortgage Loan Schedule, in each case reflecting the
changes in the Mortgage Pool during the related Collection Period.
Not later than the first day of the calendar month following
each Master Servicer Remittance Date, the Master Servicer shall forward to the
Trustee a statement, setting forth the status of the Certificate Account as of
the close of business on such Master Servicer Remittance Date, stating that all
remittances to the Trustee required by this Agreement to be made by the Master
Servicer have been made (or, in the case of any such required remittance that
has not been made by the Master Servicer, specifying the nature and status
thereof) and showing, for the period from the preceding Master Servicer
Remittance Date (or, in the case of the first Master Servicer Remittance Date,
from the Cut-off Date) to such Master Servicer Remittance Date, the aggregate of
deposits into and withdrawals from the Certificate Account for each category of
deposit specified in Section 3.04(a) and each category of withdrawal specified
in Section 3.05(a). The Master Servicer shall also deliver to the Trustee, upon
reasonable request of the Trustee, any and all additional information relating
to the Mortgage Pool in the possession of the Master 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).
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The Master Servicer, on each Determination Date, shall forward
(for delivery on such Determination Date) to the Special Servicer all
information collected by the Master Servicer which the Special Servicer is
required to include in the Special Servicer Loan Status Report. 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 Master Servicer shall use its reasonable efforts to notify
the Rating Agencies in a timely manner of any change in the identity of either
of the two largest tenants of any retail Mortgaged Property, subject to its
becoming aware of such change.
The obligation of the Master Servicer to deliver the reports
required to be delivered by it pursuant to this subsection (b) is subject to the
Master Servicer having received from the Special Servicer in a timely manner the
related reports and information necessary or required to enable the Master
Servicer to prepare and deliver such reports. The Master Servicer shall not be
responsible for the accuracy or content of any report, document or information
furnished by the Special Servicer to the Master Servicer pursuant to this
Agreement and accepted by the Master Servicer in good faith pursuant to this
Agreement.
(c) On the second Business Day after each Determination Date,
the Special Servicer shall forward to the Master Servicer (A) the Special
Servicer Loan Status Report and (B) 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 the first paragraph of 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.
Within 90 days following the end of each calendar quarter,
commencing with the calendar quarter ended December 31, 1996, the Master
Servicer shall deliver to the Trustee with respect to each Mortgaged Property
that does not secure a Specially Serviced Mortgage Loan or that is not an REO
Property, and the Special Servicer shall deliver to the Master Servicer, with
respect to each Mortgaged Property which secures a Specially Serviced Mortgage
Loan and is an REO Property, a report (an "Operating Statement Analysis")
containing revenue, expense and net operating income information normalized
using the methodology described in Exhibit J hereto as of the end of such
calendar quarter. The requirement that the Master Servicer and the Special
Servicer deliver each Operating Statement Analysis is subject to the Master
Servicer and the Special Servicer having received the related operating
statements and rent rolls from the related Mortgagor.
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
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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.
SECTION 4.03. Delinquency Advances.
(a) On or before 1:00 p.m., New York City time, on each
Delinquency Advance Date, the Master Servicer shall either (i) deposit into the
Distribution Account (or, to the extent made to cover unpaid Master Servicing
Fees and Special Servicing Fees, the Certificate Account) from its own funds an
amount equal to the aggregate amount of Delinquency Advances, if any, to be made
in respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make Delinquency Advances, or
(iii) make Delinquency Advances in the form of any combination of (i) and (ii)
aggregating the total amount of Delinquency Advances to be made; provided that,
if Late Collections (net of related Workout Fees) of the delinquent Monthly
Payments for which Delinquency Advances are to be made for the related
Distribution Date, are on deposit in the Certificate Account and available to
make such Advances, the Master Servicer shall utilize such Late Collections to
make such Advances pursuant to clause (ii) above. Any amounts held in the
Certificate Account for future distribution and so used to make Delinquency
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Certificate Account on or
before the next succeeding Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal and
interest in respect of which such Delinquency Advances were made). If, as of
3:00 p.m., New York City time, on any Delinquency Advance Date, the Master
Servicer shall not have made any Delinquency Advance required to be made on such
date pursuant to this Section 4.03(a) (and 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. (312) 845-8617 (or such
alternative number provided by the Master Servicer to the Trustee in writing)
and by telephone at telephone no. (312) 845-8580 (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 Delinquency Advance 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 on such Delinquency Advance Date.
(b) The aggregate amount of Delinquency Advances to be made by
the Master Servicer in respect of the Mortgage Loans (including, without
limitation, Balloon Mortgage Loans delinquent as to their respective Balloon
Payments) and any REO Loans for any
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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 related Collection Period and that were not paid by or on
behalf of the related Mortgagors or otherwise collected as of the close of
business on the last day of the related Collection Period; provided that, if an
Appraisal Reduction Amount exists with respect to any Required Appraisal Loan,
then, in the event of subsequent delinquencies thereon, the interest portion of
the Delinquency Advance in respect of such Required Appraisal Loan for the
related Distribution Date shall be reduced (it being herein acknowledged that
there shall be no reduction in the principal portion of such Delinquency
Advance) to equal the product of (i) the amount of the interest portion of such
Delinquency Advance for such Required Appraisal Loan for such Distribution Date
without regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the Stated Principal Balance of
such Required Appraisal Loan immediately prior to such Distribution Date, net of
the related Appraisal Reduction Amount, if any, and the denominator of which is
equal to the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no
Delinquency Advance shall be required to be made hereunder if such Delinquency
Advance would, if made, constitute a Nonrecoverable Delinquency Advance. In
addition, Nonrecoverable Delinquency Advances shall be reimbursable pursuant to
Section 3.05(a) out of general collections on the Mortgage Loans and REO
Properties on deposit in the Certificate Account. The determination by the
Master Servicer or, if applicable, the Trustee, that it has made a
Nonrecoverable Delinquency Advance or that any proposed Delinquency Advance, if
made, would constitute a Nonrecoverable Delinquency Advance, shall be evidenced
by an Officer's Certificate delivered promptly (and, in any event, in the case
of a proposed Delinquency Advance, no less than five Business Days prior to the
related Delinquency Advance Date) 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 or the Special Servicer, as the case may be, may, subject to
its reasonable and good faith determination that such Appraisal will demonstrate
the nonrecoverability of the related Advance, obtain an Appraisal for such
purpose at the expense of the Trust Fund. The Trustee shall be entitled to rely
on any determination of nonrecoverability that may have been made by the Master
Servicer or the Special Servicer with respect to a particular Delinquency
Advance, and the Master Servicer shall be entitled to rely on any determination
of nonrecoverability that may have been made by the Special Servicer with
respect to a particular Delinquency Advance.
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(d) The Master Servicer and the Trustee shall each be entitled
to receive interest at the Reimbursement Rate in effect from time to time,
accrued on the amount of each Delinquency Advance made thereby (out of its own
funds) for so long as such Delinquency Advance is outstanding (or, if any
Delinquency Advance is required to be made in respect of a delinquent Monthly
Payment on any Mortgage Loan prior to the end of the grace period for such
Monthly Payment, for so long as such Delinquency Advance is outstanding
following the end of such grace period), payable FIRST, out of Penalty Charges
received on the Mortgage Loan or REO Loan as to which such Delinquency Advance
was made and, THEN, once such Delinquency Advance has been reimbursed, out of
general collections on the Mortgage Loans and REO Properties.
SECTION 4.04. Allocation of Realized Losses and Additional
Trust Fund Expenses.
(a) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC I Regular Interests pursuant to
Section 4.01(a), the Uncertificated Principal Balance of each REMIC I Regular
Interest (after taking account of such deemed distributions) shall be reduced to
equal the Stated Principal Balance of the related Mortgage Loan or REO Loan, as
the case may be, that will be outstanding immediately following such
Distribution Date. Such reductions shall be deemed to be an allocation of
Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the payments deemed
to be made to REMIC III in respect of the REMIC II Regular Interests on such
date pursuant to Section 4.01(a), the Trustee shall determine: (i) the amount,
if any, by which (A) the then Uncertificated Principal Balance of REMIC II
Regular Interest LG1, exceeds (B) an amount equal to 99.9% of the aggregate
Stated Principal Balance of Loan Group 1 that will be outstanding immediately
following such Distribution Date; and (ii) the amount, if any, by which (A) the
then Uncertificated Principal Balance of REMIC II Regular Interest LG2, exceeds
(B) an amount equal to 99.9% of the aggregate Stated Principal Balance of Loan
Group 2 that will be outstanding immediately following such Distribution Date.
If any such excess exists with respect to either such REMIC II Regular Interest,
then the Uncertificated Principal Balance of such REMIC II Regular Interest
shall be reduced until such excess no longer exists. All such reductions in the
Uncertificated Principal Balances of such REMIC II Regular Interests shall be
deemed to be allocations of Realized Losses and Additional Trust Fund Expenses.
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(a), the Trustee shall also determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of REMIC
II Regular Interests A-1, A-2A, A-2B, B, C, D, E, F, G and H exceeds (ii) an
amount equal to 0.1% of the aggregate Stated Principal Balance of the Mortgage
Pool 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 (other than REMIC II Regular Interests A-1, A-2A
and A-2B) shall be reduced sequentially, in
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reverse alphabetical order of letter designation, in each case, until the first
to occur of such excess being reduced to zero or the Uncertificated Principal
Balance of such REMIC I Regular Interest 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 Uncertificated Principal Balances of
REMIC II Regular Interests A-1, A-2A and A-2B shall be reduced, PRO RATA in
accordance with the relative sizes of the then outstanding Uncertificated
Principal Balances of such REMIC II Regular Interests, until the first to occur
of such excess being reduced to zero or each such Uncertificated Principal
Balance being reduced to zero. Such reductions in the Uncertificated Principal
Balances of such REMIC II Regular Interests shall be deemed to be allocations of
Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the distributions to
be made to the Certificateholders on such date pursuant to Section 4.01(b), 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 Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class H, Class G, Class F, Class
E, Class D, Class C and Class B Certificates shall be reduced sequentially, in
that order, in each case, until the first to occur of such excess being reduced
to zero or the related Class Principal Balance being reduced to zero. If, after
the foregoing reductions, the amount described in clause (i) of the second
preceding sentence still exceeds the amount described in clause (ii) of the
second preceding sentence, then the respective Class Principal Balances of the
Class A-1, Class A-2A and Class A-2B 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 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-15. The Certificates will be
issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the Registered Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The REMIC III Regular Certificates will be issuable in denominations
corresponding to initial Certificate Principal Balances, Certificate Notional
Amounts or Effective Certificate Notional Amounts, as the case may be, as of the
Closing Date of not less than $100,000 in the case of the Class A, Class B,
Class C, Class D and Class E Certificates, $250,000 in the case of the Class F,
Class G or Class H Certificates, and $2,500,000 in the case of the Interest Only
Certificates, and in each such case in any whole dollar denomination in excess
thereof; provided, however, that a single Certificate of each Class thereof may
be issued in a different denomination. The Residual Certificates will be
issuable only in denominations representing Percentage Interests of not less
than 20% in the related Class.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there
shall be maintained at the office of the Certificate Registrar a Certificate
Register in which, subject to such reasonable regulations as the Certificate
Registrar may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Trustee is hereby initially appointed (and hereby agrees to
act in accordance with the terms hereof) as Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar may appoint, by a written
instrument delivered to the Depositor, the Master Servicer
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and the Special Servicer, any other bank or trust company to act as Certificate
Registrar under such conditions as the predecessor Certificate Registrar may
prescribe, provided that the predecessor Certificate Registrar shall not be
relieved of any of its duties or responsibilities hereunder by reason of such
appointment. If the Trustee resigns or is removed in accordance with the terms
hereof, the successor trustee shall immediately succeed to its predecessor's
duties as Certificate Registrar. The Depositor, the Master Servicer and the
Special Servicer, shall have the right to inspect the Certificate Register or to
obtain a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register.
(b) No transfer of any Non-Registered Certificate shall be
made unless 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 which 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: (i) if
such transfer is purportedly being made in reliance upon Rule 144A under the
Securities Act, 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; and (ii) in all other cases, (A) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached hereto as Exhibit B-1 and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached hereto as Exhibit B-3, and (B) unless the Depositor directs otherwise,
an Opinion of Counsel satisfactory to the Trustee and the Depositor to the
effect that such transfer may be made without such registration (which Opinion
of Counsel shall not be an expense of the Trust Fund or of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate Registrar
in their respective capacities as such). 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) No transfer of a Subordinated Certificate or any interest
therein shall be made (i) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or the Code
(each, a "Plan"), or (ii) 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 assets of a Plan, unless: (x) in the case of a Subordinated
Certificate that constitutes a Book-Entry Certificate, the purchase and holding
of such Certificate or interest therein is exempt from the prohibited
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transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60: or (y) in the case of a
Subordinated Certificate that is held as a Definitive Certificate, the
prospective transferee provides the Trustee, the Depositor and the Master
Servicer with a certification of facts and an Opinion of Counsel which establish
to the satisfaction of the Trustee, the Depositor and the Master Servicer that
such transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or cause the Master Servicer, the Special Servicer or the
Trustee to be deemed a fiduciary of such Plan or result in the imposition of an
excise tax under Section 4975 of the Code. Each Person who acquires any
Subordinated Certificate or interest therein (unless it shall have delivered the
certification of facts and Opinion of Counsel referred to in the preceding
sentence) shall be deemed to have certified that it is neither a Plan nor any
Person who is directly or indirectly purchasing such Subordinated Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan (or, alternatively, in the case of a Book-Entry Certificate or
interest therein, that the purchase and holding of such Certificate or interest
therein is exempt from the prohibited transaction provisions of Section 406 of
ERISA and Section 4975 of the Code under Prohibited Transaction Class Exemption
95-60). The Trustee may require that any prospective transferee of a
Subordinated Certificate that is held as a Definitive Certificate, provide such
certifications as the Trustee may deem desirable or necessary in order to
establish that such transferee or the Person in whose name such registration is
requested is not a Plan or a Person who is directly or indirectly purchasing
such Certificate on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan. The Trustee shall not have any responsibility to monitor or
restrict the transfer of Ownership Interests in any Subordinated Certificates
which are in the form of a Book-Entry Certificate.
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(ii)(A) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) below to negotiate the
terms of any mandatory sale and to execute all instruments of Transfer and to do
all other things necessary in connection with any such sale. The rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(A) Each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be
a Permitted Transferee and a United States Person and
shall promptly notify the Trustee of any change or
impending change in its status as a Permitted
Transferee.
(B) In connection with any proposed Transfer
of any Ownership Interest in a Residual Certificate,
the Trustee shall require delivery to it, and no
Transfer of any Residual Certificate shall be
registered until the Trustee receives, an affidavit
and agreement substantially in the form attached
hereto as Exhibit C-1 (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and
substance satisfactory to the
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Trustee, representing and warranting, among other
things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership
Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains
its Ownership Interest in a Residual Certificate, it
will endeavor to remain a Permitted Transferee, that
it is a United States Person, and that it has
reviewed the provisions of this Section 5.02(d) and
agrees to be bound by them.
(C) Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed
Transferee under clause (B) above, if the Trustee has
actual knowledge that the proposed Transferee is not
a Permitted Transferee or is not a United States
Person, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall
agree (1) to require a Transfer Affidavit and
Agreement from any prospective Transferee to whom
such Person attempts to transfer its Ownership
Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual
Certificate unless it provides to the Trustee a
certificate substantially in the form attached hereto
as Exhibit C-2 stating that, among other things, it
has no actual knowledge that such prospective
Transferee is not a Permitted Transferee or is not a
United States Person.
(E) Each Person holding or acquiring an
Ownership Interest in a Residual Certificate, by
purchasing an Ownership Interest in such Certificate,
agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning
of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it
is, or is holding an Ownership Interest in a Residual
Certificate on behalf of, a "pass-through interest
holder".
(ii) (A) If any purported Transferee shall become a
Holder of a Residual Certificate in violation of the
provisions of this Section 5.02(d) or if any Holder of a
Residual Certificate shall lose its status as a Permitted
Transferee or a United States Person, then the last preceding
Holder of such Residual Certificate that was in compliance
with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder
thereof retroactive to the date of registration of such
Transfer of such Residual Certificate. None of the Trustee,
the Master Servicer, the Special Servicer or the Certificate
Registrar shall be under any liability to any Person for any
registration of Transfer of a
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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 noncomplying Holder.
The terms and conditions of any sale under this clause (ii)(B)
shall be determined in the sole discretion of the Trustee, and
the Trustee shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of
its exercise of such discretion.
(iii) The Trustee shall make available to the Internal
Revenue Service and those Persons specified by the REMIC
Provisions, all information necessary to compute any tax
imposed (A) as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is not a
Permitted Transferee, including the information described in
Treasury regulations sections 1.860D- 1(b)(5) and
1.860E-2(a)(5)with respect to the "excess inclusions" of such
Residual Certificate and (B) as a result of any regulated
investment company, real estate investment trust, common trust
fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any
time any Person which is not a Permitted Transferee. The
Person holding such Ownership Interest shall be responsible
for the reasonable compensation of the Trustee for providing
such information.
(iv) The provisions of this Section 5.02(d) set forth
prior to this subsection (iv) may be modified, added to or
eliminated, provided that there shall have been delivered to
the Trustee and the Depositor the following:
(A) written notification from each Rating
Agency to the effect that the modification of,
addition to or elimination of such provisions will
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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
REMICrelated tax caused by the Transfer of a Residual
Certificate to a Person which is not a Permitted
Transferee.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the offices of the Certificate
Registrar maintained for such purpose, the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
of a like aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Trustee or the Certificate Registrar) be
duly endorsed by, or be accompanied by a written instrument of transfer in the
form satisfactory to the Trustee and the Certificate Registrar duly executed by,
the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
(i) All Certificates surrendered for transfer and exchange
shall be physically canceled by the Certificate Registrar, and the Certificate
Registrar shall hold such canceled Certificates in accordance with its standard
procedures.
(j) The Certificate Registrar shall be required to provide
notice to the Master Servicer, the Special Servicer and the Depositor of each
transfer of a Certificate and to provide
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each such Person with an updated copy of the Certificate Register on or about
January 1 and July 1 of each year, commencing July 1, 1997.
SECTION 5.03 Book-Entry Certificates.
(a) Each class of Registered Certificates shall initially be
issued as one or more Certificates registered in the name of the Depository or
its nominee and, except as provided in subsection (c) below, transfer of such
Certificates may not be registered by the Certificate Registrar unless such
transfer is to a successor Depository that agrees to hold such Certificates for
the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and transfer their respective Ownership Interests
in and to such Certificates through the book-entry facilities of the Depository
and, except as provided in subsection (c) below, shall not be entitled to
definitive, fully registered Certificates ("Definitive Certificates") in respect
of such Ownership Interests. The Trustee shall not have any responsibility to
monitor or restrict the transfer of Ownership Interests in any Book-Entry
Certificate. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer,
the Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to properly discharge its responsibilities with respect to the Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer and any
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other documents necessary to satisfy the requirements of any applicable transfer
restrictions, the Trustee shall execute, and the Certificate Registrar shall
authenticate and deliver, the applicable Definitive Certificates to the
Certificate Owners identified in such instructions. None of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate Registrar
shall be liable for any delay in delivery of such instructions, and each may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of the Registered Certificates held in book-entry form, the registered
holders of such Definitive Certificates shall be recognized as
Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the person in
whose name such Certificate is registered as 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 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 its rights and delegate 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
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observance of each covenant and condition to be performed or observed by the
Master Servicer or the Special Servicer, as the case may be, under this
Agreement; provided further that such assignment or delegation will not result
in the downgrade, qualification or withdrawal of the then-current ratings of the
Classes of Certificates that have been rated (as evidenced by a letter to such
effect from each Rating Agency). 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.
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 reckless disregard of obligations and duties hereunder. The Depositor, the
Master Servicer, the Special Servicer and any director, officer, employee or
agent of the Depositor, the Master Servicer or the Special Servicer may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Master Servicer and the Special Servicer and any director, officer, employee
or agent of the Depositor, the Master Servicer or the Special Servicer shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any legal action relating to this Agreement
or the Certificates or any asset of the Trust Fund, other than any loss,
liability or expense specifically required to be borne by such Person pursuant
to the terms hereof, or which constitutes a Servicing Advance (and is otherwise
specifically reimbursable hereunder), or which is incurred by such Person by
reason of such Person's willful misfeasance, bad faith or negligence in the
performance of such Person's duties hereunder or by reason of such Person's
reckless disregard of obligations and duties hereunder.
None of the Depositor, the Master Servicer or the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action, proceeding, hearing or examination that is not
incidental to its respective duties under this Agreement and which in its
opinion may involve it in any 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,
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proceeding, hearing or examination and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust Fund, and the Depositor, the
Master Servicer and the Special Servicer shall be entitled to be reimbursed
therefor out of amounts attributable to the Mortgage Loans on deposit in the
Certificate Account as provided by Section 3.05(a).
SECTION 6.04. Depositor, Master Servicer and Special Servicer
Not to Resign.
Subject to the provisions of Section 6.02, none of the
Depositor, the Master Servicer or the Special Servicer shall resign from its
respective obligations and duties hereby imposed on it except upon determination
that its duties hereunder are no longer permissible under applicable law. Any
such determination permitting the resignation of the Depositor, the Master
Servicer or the Special Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Trustee. No such resignation by the Master Servicer
or the Special Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the responsibilities and obligations of the Master
Servicer or the Special Servicer, as the case may be, in accordance with Section
7.02.
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.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of
the following events:
(i) (A) any failure by the Master Servicer to make a required
deposit to the Certificate Account which continues unremedied for one
Business Day following the date on which such deposit was first
required to be made, or (B) any failure by the Master Servicer to
deposit into, or to remit to the Trustee for deposit into, the
Distribution Account any amount required to be so deposited or
remitted, which failure is not remedied by 11:00 a.m. (New York City
time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into, or
to remit to the Master Servicer for deposit into, the Certificate
Account any amount required to be so deposited or remitted under this
Agreement which failure continues unremedied for one Business Day
following the date on which such deposit or remittance was first
required to be made; or
(iii) any failure by the Master Servicer or the Special
Servicer to timely make any Servicing Advance required to be made by it
pursuant to this Agreement which continues unremedied for a period
ending on the earlier of (A) 15 days following the date such Servicing
Advance was first required to be made, and (B) either, if applicable,
(1) in the case of a Servicing Advance relating to the payment of
insurance premiums, the day on which such insurance coverage terminates
if such premiums are not paid or (2) in the case of a Servicing Advance
relating to the payment of real estate taxes, the date of the
commencement of a foreclosure action with respect to the failure to
make such payment; or
(iv) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any
other of the covenants or agreements on the part of the Master Servicer
or the Special Servicer contained in this Agreement which continues
unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer or the Special Servicer, as the case
may be, by the Trustee or the Depositor, or to the Master Servicer, the
Special Servicer, the Depositor and the Trustee by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; or
(v) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement which materially and
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adversely affects the interests of any Class of Certificateholders and
which continues unremedied for a period of 30 days after the date on
which notice of such breach, requiring the same to be remedied, shall
have been given to the Master Servicer or the Special Servicer by the
Trustee or the Depositor, or to the Master Servicer, the Special
Servicer, the Depositor and the Trustee by the Holders of Certificates
of any Class evidencing, as to such Class, Percentage Interests
aggregating not less than 25%; 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;
(viii) the Master Servicer or the Special Servicer shall admit
in writing its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
(ix) the Trustee shall have received written notice from
either Rating Agency that the continuation of the Master Servicer or
the Special Servicer in such capacity would result in the downgrade,
qualification or withdrawal of any rating then assigned by such Rating
Agency to any Class of Certificates.
(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
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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 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 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 for administration by it of all cash amounts which shall at the time be
or should have been credited by the Master Servicer or the Special Servicer to
the Certificate Account, the Distribution Account 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 Fees and all funds
relating to the Mortgage Loans which the Master Servicer or the Special Servicer
would have been entitled to charge to the Certificate Account or the
Distribution Account if the Master Servicer or the Special Servicer had
continued to act hereunder. Notwithstanding the above, the Trustee may, if it
shall be unwilling to so act, or shall, if it is unable to so act or if the
Holders of Certificates entitled to at least 51% of the
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Voting Rights so request in writing to the Trustee or if it is not appropriately
rated 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 written confirmation
therefrom to the effect that the appointment of such institution would not
result in the downgrade, qualification or withdrawal of its rating then assigned
to any Class of Certificates), as the successor to the Master Servicer hereunder
or the Special Servicer, as the case may be, in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer or
the Special Servicer, as the case may be, hereunder. No appointment of a
successor to the Master Servicer or the Special Servicer, as the case may be,
hereunder shall be effective until the assumption of the successor to the Master
Servicer or the Special Servicer, as the case may be, of all the
responsibilities, duties and liabilities of the Master Servicer or the Special
Servicer, as the case may be, hereunder. Pending appointment of a successor to
the Master Servicer or the Special Servicer, as the case may be, hereunder, the
Trustee shall act in such capacity as hereinabove provided. In connection with
any such appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans or otherwise as it and such successor shall agree; provided, however, that
no such compensation shall be in excess of that permitted the resigning or
terminated party hereunder. The Depositor, the Trustee and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
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% 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
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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.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiver of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default occurs and is
continuing, the Trustee (other than as successor Master Servicer or Special
Servicer) shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement (other than the Mortgage
Files, the review of which is specifically governed by the terms of Article II),
shall examine them to determine whether they conform to the requirements of this
Agreement. If any such instrument is found not to conform to the requirements of
this Agreement in a material manner, the Trustee shall take such action as it
deems appropriate to have the instrument corrected. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer or the Special Servicer and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default,
and after the curing of all such Events of Default which may
have occurred, the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the
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Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of
Holders of Certificates entitled to at least 25% of the Voting
Rights relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected
in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it hereunder in
good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising
hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; the Trustee shall not be
required to expend or risk its own funds or otherwise incur
any financial 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;
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(iv) The Trustee shall not be personally liable for
any action reasonably taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Agreement;
(v) Prior to the occurrence of an Event of Default
hereunder and after the curing of all Events of Default which
may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so
by Holders of Certificates entitled to at least 50% of the
Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to
it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a
condition to taking any such action;
(vi) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, provided that the Trustee
shall not be relieved from such duties, and the Trustee shall
remain responsible for all acts and omissions of any such
agent;
(vii) For all purposes under this Agreement, the
Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any
act or omission of the Master Servicer or the Special Servicer
(unless the Trustee is acting as Master Servicer or the
Special Servicer, as the case may be) or of the Depositor.
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency
of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other
than the representations and warranties of, and the other statements attributed
to the Trustee in Sections 2.02, 2.04, 2.05, 2.06 and 8.13 and the signature of
the Trustee set forth on each outstanding Certificate, shall be taken as the
statements of the Depositor, the Master Servicer or the Special Servicer, as the
case may be, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no 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 related document. The Trustee shall not be accountable for the
use or application by the Depositor of any of the Certificates issued to it or
of the
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proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Mortgage Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Certificate Account or any
other account by or on behalf of the Depositor, the Master Servicer or the
Special Servicer. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer or the
Special Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, may
become the owner or pledgee of Certificates with the same rights it would have
if it were not Trustee.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification
of Trustee.
(a) The Master Servicer shall pay monthly to the Trustee the
Trustee Fee for each Collection Period out of its aggregate Master Servicing
Fees for such Collection Period.
(b) The Trustee and any director, officer, employee or agent
of the Trustee shall be entitled to be indemnified and held harmless by the
Trust Fund (to the extent of amounts on deposit in the Distribution Account from
time to time) against any loss, liability or expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement) arising out of, or
incurred in connection with, any act or omission of the Trustee relating to the
exercise and performance of any of the powers and duties of the Trustee
hereunder; provided that neither the Trustee nor any of the other above
specified Persons shall be entitled to indemnification pursuant to this Section
8.05(b) for (i) allocable overhead, (ii) expenses or disbursements incurred or
made by or on behalf of the Trustee in the normal course of the Trustee's
performing its routine duties in accordance with any of the provisions hereof,
(iii) any expense or liability specifically required to be borne thereby
pursuant to the terms hereof, or (iv) any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance of the
Trustee's obligations and duties hereunder, or by reason of reckless disregard
of such obligations or duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee made herein. The provisions
of this Section 8.05(b) shall survive any resignation or removal of the Trustee
and appointment of a successor trustee.
SECTION 8.06. Eligibility Requirements for Trustee.
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
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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 AA (or Aa2) or better by each Rating Agency. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07. The corporation or association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Master Servicer, the Special Servicer and their respective Affiliates.
SECTION 8.07. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor trustee acceptable to the Master Servicer by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee. A copy of such instrument shall be delivered to the
Master Servicer, the Special Servicer and the Certificateholders by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of
the Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. A copy of
such instrument shall be delivered to the Depositor, the Special Servicer and
the remaining Certificateholders by the Master Servicer.
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(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 8.07
shall not become effective until acceptance of appointment by the successor
trustee as provided in Section 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section
8.07 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer, the Special Servicer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee all Mortgage Files and related
documents and statements held by it hereunder (other than any Mortgage Files at
the time held on its behalf by a Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Master Servicer, the
Special Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided
in this Section 8.08 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the Master Servicer shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders. If the Master Servicer fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Master
Servicer.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted
or with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder, provided such entity shall be eligible under the provisions of
Section 8.06, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
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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
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of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under
this Section 8.10 shall not relieve the Trustee of its duties and
responsibilities hereunder.
SECTION 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer,
appoint one or more Custodians to hold all or a portion of the Mortgage Files as
agent for the Trustee. Each Custodian shall be a depository institution subject
to supervision by federal or state authority, shall itself (or together with an
affiliate guaranteeing its financial performance) have a combined capital and
surplus of at least $15,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File 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.
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 NonRegistered
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 of a Certificate,
originals or copies of the following items: (i) in the case of a Holder or
prospective transferee of a Non-Registered Certificate, 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
Certificateholder Reports required to be delivered to Certificateholders of the
relevant Class pursuant to Section 4.02 since the Closing Date, (C) all
Officer's Certificates delivered to the Trustee since the Closing Date pursuant
to Section 3.13, (D) all accountants' reports delivered to the Trustee since the
Closing Date pursuant to Section 3.14, (E) the most recent inspection report
prepared by the Master Servicer or Special Servicer and delivered to the Trustee
in respect of each Mortgaged Property pursuant to Section 3.12,
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(F) as to each Mortgage Loan pursuant to which the related Mortgagor is required
to deliver such items or the Master Servicer has otherwise acquired such items,
the most recent annual operating statement and rent roll of the related
Mortgaged Property and financial statements of the related Mortgagor collected
by the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.12(b), (G) any and all notices and reports delivered to
the Trustee with respect to any Mortgaged Property securing a defaulted Mortgage
Loan as to which the environmental testing contemplated by Section 3.09(c)
revealed that either of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof was not satisfied (but only for so long as such Mortgaged
Property or the related Mortgage Loan are part of the Trust Fund), (H) the
respective Mortgage Files, including, without limitation, any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but only for so long as the affected Mortgage Loan is
part of the Trust Fund) and (I) any and all Officer's Certificates and other
evidence delivered to or retained by the Trustee to support the Master
Servicer's, Special Servicer's or Trustee's determination that any Advance was
or, if made, would be a Nonrecoverable Advance. Copies of any and all of the
foregoing items will be available from the Trustee upon 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(b), 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(b).
(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 without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Trustee designated by it.
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SECTION 8.13. Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants to the Master
Servicer, for its own benefit and the benefit of the Certificateholders, and to
the Special Servicer and the Depositor, as of the Closing Date, that:
(i) The Trustee is a trust company duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts.
(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 charter and
by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it
is a party or which is applicable to it or any of its assets.
(iii) This Agreement, assuming due authorization, execution
and delivery by the Special Servicer, the Master Servicer and the
Depositor, constitutes a valid, legal and binding obligation of the
Trustee, enforceable against the Trustee in accordance with the terms
hereof, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of 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, which default, in the
Trustee's good faith and reasonable judgment, is likely to affect
materially and adversely either 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.
SECTION 8.14. Filings with the Securities and Exchange
Commission.
The Trustee shall prepare for filing, execute and properly
file with the Commission, any and all reports, statements and information,
respecting the Trust Fund and/or the Certificates required or specifically
provided herein to be filed on behalf of the Trust Fund under the Exchange Act.
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SECTION 8.15. Massachusetts Filings.
The Trustee shall make all filings as it may determine are
required by Massachusetts General Laws Chapter 182, Sections 2 and 12.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of (i) the purchase by the Master Servicer
or the Depositor of all Mortgage Loans and each REO Property remaining in REMIC
I at a price (to be determined as of the end of the Collection period for the
anticipated Final Distribution Date) equal to (A) the aggregate Purchase Price
of all the Mortgage Loans included in REMIC I, plus (B) the appraised value of
each REO Property, if any, included in REMIC I (such appraisal to be conducted
by an Independent MAI-designated appraiser selected by the Master Servicer and
approved by the Trustee), minus (C) solely in the case where the Master Servicer
is effecting such purchase, the aggregate amount of unreimbursed Advances,
together with any Advance Interest accrued and payable to the Master Servicer in
respect of such Advances and any unpaid Servicing Fees, remaining outstanding
(which items shall be deemed to have been paid or reimbursed to the Master
Servicer in connection with such purchase), and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in REMIC I; provided, however, that in no event shall the
trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
ambassador of the United States to the Court of St. James's, living on the date
hereof.
The Master Servicer or the Depositor may, at its option, elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust Fund as contemplated by clause (i) of the preceding paragraph by giving
written notice to the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Master Servicer or the
Depositor may so elect to purchase all of the Mortgage Loans and each REO
Property remaining in REMIC I only if the aggregate Stated Principal Balance of
the Mortgage Loans and any REO Loans remaining in the Trust Fund at the time of
such election is less than 5% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans set forth in the Preliminary Statement. In the event that the
Master Servicer or the Depositor purchases of all of the Mortgage Loans and each
REO Property remaining in REMIC I in accordance with the preceding sentence, the
Master Servicer or the Depositor, as applicable, shall deposit in the
Distribution Account not later than the Master Servicer Remittance Date relating
to the Distribution Date on which the final distribution on the Certificates is
to occur, an amount in immediately available funds equal to the above-described
purchase price (exclusive of any portion thereof would be payable to any Person
other than the Certificateholders pursuant to
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Section 3.05(a) if on deposit in the Certificate Account, which portion shall be
deposited in the Certificate Account). In addition, the Master Servicer shall
transfer to the Distribution Account all amounts required to be transferred
thereto on such Master Servicer Remittance Date from the Certificate Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Certificate Account that would otherwise be held for
future distribution. Upon confirmation that such final deposits have been made,
the Trustee shall release or cause to be released to the Master Servicer or the
Depositor, as applicable, the Mortgage Files for the remaining Mortgage Loans
and shall execute all assignments, endorsements and other instruments furnished
to it by the Master Servicer or the Depositor, as applicable, as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in REMIC I. All Credit Files for the remaining Mortgage Loans and REO
Properties shall be delivered to the purchasing entity.
Notice of any termination shall be given promptly by the
Trustee by letter to Certificateholders and, if not previously notified pursuant
to the preceding paragraph, to the other parties hereto mailed (a) in the event
such notice is given in connection with the Master Servicer's or the Depositor's
purchase of all of the Mortgage Loans and each REO Property remaining in REMIC
I, not earlier than the 15th day and not later than the 25th day of the month
next preceding the month of the final distribution on the Certificates or (b)
otherwise during the month of such final distribution on or before the
Determination Date in such month, in each case specifying (i) the Distribution
Date upon which the Trust Fund will terminate and final payment of the
Certificates will be made, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Distribution Account that are allocable to payments on the Class
of Certificates so presented and surrendered. 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)-(v) of Section 3.05(b)) shall be allocated for the purposes, in the amounts
and in accordance with the priority set forth in Section 4.01. Any funds not
distributed on such Distribution Date shall be set aside and held uninvested in
trust for the benefit of Certificateholders not presenting and surrendering
their Certificates in the aforesaid manner, and shall be disposed of in
accordance with this Section 4.01(f).
SECTION 9.02. Additional Termination Requirements.
(a) In the event the Master Servicer or the Depositor
purchases all of the Mortgage Loans and each REO Property remaining in REMIC I
as provided in Section 9.01, the Trust Fund (and, accordingly, REMIC I, REMIC II
and REMIC III) shall be terminated in accordance with the following additional
requirements, unless the Master Servicer or the
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Depositor, as the case may be, obtains at its own expense and delivers to the
Trustee an Opinion of Counsel, addressed to the Depositor, the Master Servicer
and the Trustee, to the effect that the failure of the Trust Fund to comply with
the requirements of this Section 9.02 will not result in the imposition of taxes
on "prohibited transactions" of REMIC I, REMIC II or REMIC III as defined in
Section 860F of the Code or cause REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each of REMIC I, REMIC II and REMIC III pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any
regulations thereunder;
(ii) during such 90-day liquidation period and at or
prior to the time of making of the final payment on the Certificates,
the Trustee shall sell all of the assets of REMIC I to the Master
Servicer or the Depositor, as applicable, for cash; and
(iii) immediately following the making of the final
payment on the Certificates, the Trustee shall distribute or credit, or
cause to be distributed or credited, to the Holders of the related
Class of Residual Certificates all cash on hand in the related REMIC
(other than cash retained to meet claims), and REMIC I, REMIC II and
REMIC III shall terminate at that time.
(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.
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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)) 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. 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)-IT, as the
tax matters person of such REMIC. By its acceptance thereof, the Holder of
Residual Certificates representing the largest Percentage Interest in each Class
thereof hereby agrees to irrevocably appoint the Trustee as its agent to perform
all of the duties of the tax matters person for the related REMIC created
hereunder.
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(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 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, (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) endanger the status of REMIC
I, REMIC II or REMIC III as a REMIC or (ii) result 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, result in an Adverse REMIC Event.
In addition, prior to taking any action with respect to the Trust Fund or its
assets, or causing the Trust Fund to take any action, which is not expressly
permitted under the terms of this Agreement, each of the parties hereto will
consult with the Trustee or its designee, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to REMIC I,
REMIC II or REMIC III, and such party shall not take any such action, or cause
REMIC I, REMIC II or REMIC III to take any such action, as to which the Trustee
has advised it in writing that an Adverse REMIC Event could occur. The Trustee
may consult with counsel to make such written advice, and the cost of same shall
be borne by the party seeking to take the action not expressly permitted by this
Agreement. At all times as may be required by the Code, the Trustee will to the
extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of the Trust Fund 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.
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(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, 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 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 REMIC I, REMIC II or REMIC III 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
such REMIC will not cause such REMIC 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 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 2.04 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 or the Distribution Account for gain, or
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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) cause REMIC I, REMIC II or REMIC III to be subject
to a tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
SECTION 10.02. Depositor, Master Servicer, Special Servicer
and Trustee to Cooperate.
(a) The Depositor shall provide or cause to be provided to the
Trustee, within ten days after the Closing Date, all information or data that
the Trustee reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including, without limitation,
the price, yield, prepayment assumption and projected cash flow of the
Certificates.
(b) The Master Servicer, the Special Servicer and the
Depositor shall each furnish such reports, certifications and information, and
access to such books and records maintained thereby, as may relate to the
Certificates or the Trust Fund and as shall be reasonably requested by the
Trustee in order to enable it to perform its duties hereunder.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the
parties hereto, without the consent of any of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or
therein, which may be inconsistent with any other provisions herein or
therein or to correct any error,
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of
REMIC I, REMIC II or REMIC III as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on REMIC I, REMIC II or REMIC III pursuant to the
Code that would be a claim against the Trust Fund, provided that the
Trustee has received an Opinion of Counsel to the effect that (A) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax and (B)
such action will not adversely affect in any material respect the
interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the
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 (A) such change shall not adversely affect
the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect, and (B)
such change shall not, as evidenced by an Opinion of Counsel, cause
either the Trust Fund or any of the Certificateholders (other than the
transferor) to be subject to a federal tax caused by a transfer to a
Person that is not a United States Person and a Permitted Transferee,
or
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of
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this Agreement, provided that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the
interests of any Certificateholder.
(b) This Agreement may also be amended from time to time by
the parties hereto with the consent of the Holders of Certificates evidencing in
the aggregate not less than 66% 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.
(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 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.
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(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, but only upon direction accompanied by an Opinion of Counsel (the
cost of which may be paid out of the Certificate Account) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except
as expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be 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
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hereinbefore provided, and unless also (except in the case of a default by the
Trustee) the Holders of Certificates of any Class evidencing not less than 25%
of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it under this
Section 11.03(c) or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the Holders of
Certificates unless such Holders have offered to the Trustee reasonable security
against the costs, expenses and liabilities which may be incurred therein or
hereby. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 11.03(c), each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04. GOVERNING LAW.
THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall
be in writing and, unless otherwise expressly provided herein, shall be deemed
to have been duly given if personally delivered at or mailed by registered mail,
postage prepaid (except for notices to the Trustee which shall be deemed to have
been duly given only when received), to: (i) in the case of the Depositor, 650
Dresher Road, Horsham, Pennsylvania 19044, Attention: Elisa George, telecopy
number: (215) 682-3425; (ii) in the case of the Master Servicer, 650 Dresher
Road, Horsham, Pennsylvania 19044, Attention: Catherine Marquardt, telecopy
number: (215) 682- 1794; (iii) in the case of the Trustee, 2 International
Place, 5th Floor, Boston, Massachusetts 02110, Attention: Corporate Trust
Department, William Swan, Ref: GMAC 1996-C1, telecopy number: (617) 664-5367;
(iv) in the case of the Special Servicer, 650 Dresher Road, Horsham,
Pennsylvania 19044, telecopy number (215) 682-1794, Attention: Catherine
Marquardt, and (v) in the case of the Rating Agencies, (A) Standard & Poor's
Rating Services, 26 Broadway, New
<PAGE>
-169-
York, New York 10004, Attention: Commercial Mortgage Surveillance Manager,
telecopy number: (212) 208-0053, and (B) Moody's Investors Services, Inc., 99
Church Street, New York, New York, Attention: Cedric Philipp, Jr., telecopy
number: (212) 553-1350; or as to each such Person such other address as may
hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's
right, title and interest in and to the Mortgage Loans pursuant to this
Agreement shall constitute a sale and not a pledge of security for a loan. If
such conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor also
intends and agrees that, in such event, (i) the Depositor shall be deemed to
have granted to the Trustee (in such capacity) a first priority security
interest in the Depositor's entire right, title and interest in and to the
assets comprising the Trust Fund, including without limitation, the Mortgage
Loans, 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 such 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 P 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.
<PAGE>
-170-
SECTION 11.08. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto, and all such provisions shall inure to the benefit of the
Certificateholders. No other person, including, without limitation, any
Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim
under this Agreement.
SECTION 11.09. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.10. Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) any material change or amendment to this
Agreement;
(ii) the occurrence of any Event of Default that has
not been cured;
(iii) the resignation or termination of the Master
Servicer or the Special Servicer;
(iv) any change in the location of the Distribution
Account;
(v) the repurchase of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 6 of the related Mortgage Loan
Purchase Agreement or by the Conti Guarantor pursuant to the
Conti Guaranty Agreement; and
(vi) the final payment to any Class of
Certificateholders.
(b) The Master Servicer shall use reasonable efforts promptly
to provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate
Account; and
(iii) any event that would result in the voluntary or
involuntary termination of any insurance of the accounts of
the Trustee.
<PAGE>
-171-
(c) 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.
(d) To the extent it is not already required to do so under
Section 4.02 hereof, each of the Master Servicer, the Special Servicer and 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
GMAC COMMERCIAL MORTGAGE SECURITIES,
INC.
Depositor
By:
Name: Elisa George
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer and Special Servicer
By:
Name: Elisa George
Title: Vice President
STATE STREET BANK & TRUST COMPANY,
Trustee
By:
Name: William Swan
Title: Assistant Vice President
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of November, 1996 before me, a notary public
in and for said State, personally appeared Elisa George known to me to be a Vice
President of GMAC COMMERCIAL MORTGAGE SECURITIES, INC., one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _______ day of November, 1996, before me, a notary
public in and for said State, personally appeared Elisa George known to me to be
a Vice President of GMAC COMMERCIAL MORTGAGE CORPORATION, one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of November, 1996 before me, a notary public
in and for said State, personally appeared William Swan known to me to be an
Assistant Vice President of STATE STREET BANK AND TRUST COMPANY, a trust company
chartered under the laws of the Commonwealth of Massachusetts that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such trust company, and acknowledged to me that such trust company
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF CLASS X-1 CERTIFICATE
CLASS X-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Effective Pass-Through Rate: Effective Certificate Notional Amount
Variable of this Class X-1 Certificate as of the
Issue Date: $________________
Date of Pooling and Servicing Effective Class Notional Amount of all
Agreement: November 1, 1996 the Class X-1 Certificates as of the Issue
Date: N/A
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. X-1-__ CUSIP No. 361849 AA 0
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
<PAGE>
-2-
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 7, 1996. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN
THE MEANING OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0%
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE
THAN $____________ OF OID PER $__________ OF INITIAL EFFECTIVE CERTIFICATE
NOTIONAL AMOUNT, THE YIELD TO MATURITY IS _____% PER ANNUM AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____ PER $________
OF INITIAL EFFECTIVE CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE
BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
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 POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE EFFECTIVE 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 effective notional principal amount of this Class X-1 Certificate
(its "Effective Certificate Notional Amount") as of the Issue Date by the
aggregate effective notional principal balance of all the Class X-1 Certificates
(their "Effective 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
<PAGE>
-3-
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among GMAC Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial
Mortgage Corporation, as Master Servicer and Special Servicer, and State Street
Bank and Trust Company, as Trustee. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (as to the Class
X-1 Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class 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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class X-1 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class X-1 Certificates are exchangeable for new Class X-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
<PAGE>
-4-
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class X-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Class X-1 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class X-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall
<PAGE>
-5-
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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
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:
State Street Bank and Trust Company,
as Certificate Registrar
By:__________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-2
FORM OF CLASS X-2 CERTIFICATE
CLASS X-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Notional Amount
Variable of this Class X-2 Certificate as of the
Issue Date: $_______________
Date of Pooling and Servicing Class Notional Amount of all
Agreement: November 1, 1996 the Class X-2 Certificates as of the Issue
Date: $456,365,528
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. X-2-__ CUSIP No. 361849 AB __
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
<PAGE>
-2-
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 7, 1996. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN
THE MEANING OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0%
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE
THAN $____________ OF OID PER $__________ OF INITIAL CERTIFICATE NOTIONAL
AMOUNT, THE YIELD TO MATURITY IS _____% PER ANNUM AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____ PER $________
OF INITIAL CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON
THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
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 POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN 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,
<PAGE>
-3-
Inc., as Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and
Special Servicer, and State Street Bank and Trust Company, as Trustee. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (as to the Class
X-2 Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class 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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class X-2 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class X-2 Certificates are exchangeable for new Class X-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
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
<PAGE>
-4-
Certificate for registration of transfer at the offices of the Certificate
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Certificate Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Class X-2 Certificates in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of
transfer or exchange of Class X-2 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class X-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% 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
<PAGE>
-5-
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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
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:
State Street Bank and Trust Company,
as Certificate Registrar
By:__________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Class A-1 Certificate as of the Issue
Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: November 1, 1996 A-1 Certificates as of the Issue Date:
$33,475,146
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. A-1-__ CUSIP No. 361849 AC 6
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
<PAGE>
-2-
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN
UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [Cede & Co.] is the registered owner of
the Percentage Interest evidenced by this Class A-1 Certificate (obtained by
dividing the principal balance of this Class A-1 Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-1 Certificates (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
A-1 Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and State Street Bank and Trust
Company, as Trustee. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the fifth day (or, if such
fifth day is not a Business Day, the preceding Business Day) of the month
<PAGE>
-3-
of such distribution (as to the Class A-1 Certificates, the "Record Date"), in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class 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) and such Certificateholder is the registered owner of
Certificates the aggregate initial Certificate Principal Balance of which is at
least $5,000,000, 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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class A-1 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class A-1 Certificates are exchangeable for new Class A-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
<PAGE>
-4-
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 service charge will be imposed for any registration of
transfer or exchange of Class A-1 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class A-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall
<PAGE>
-5-
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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
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:
State Street Bank and Trust Company,
as Certificate Registrar
By:_________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-4
FORM OF CLASS A-2A CERTIFICATE
CLASS A-2A MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
6.7900% per annum Class A-2A Certificate as of the Issue
Date: $_______________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: November 1, 1996 A-2A Certificates as of the Issue Date:
$190,353,000
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. A-2A-__ CUSIP No. 361849 AD 4
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
<PAGE>
-2-
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H 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-2A Certificate (obtained by
dividing the principal balance of this Class A-2A Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-2A Certificates (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest evidenced by all the
Class A-2A Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, and State Street Bank and
Trust Company, as Trustee. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (as to the
<PAGE>
-3-
Class A-2A Certificates, the "Record Date"), in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of the Class A-2A Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on any Class A-2A 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 Certificates the aggregate initial Certificate
Principal Balance of which is at least $5,000,000, 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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class A-2A Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class A-2A Certificates are exchangeable for new Class A-2A Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
<PAGE>
-4-
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-2A Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Class A-2A 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-2A Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall
<PAGE>
-5-
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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2A Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:_________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-5
FORM OF CLASS A-2B CERTIFICATE
CLASS A-2B MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
7.2200% per annum Class A-2B Certificate as of the Issue
Date: $_______________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: November 1, 1996 A-2B Certificates as of the Issue Date:
$71,963,000
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. A-2B-__ CUSIP No. 361849 AE 2
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
<PAGE>
-2-
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H 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-2B Certificate (obtained by
dividing the principal balance of this Class A-2B Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-2B Certificates (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest evidenced by all the
Class A-2B Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, and State Street Bank and
Trust Company, as Trustee. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (as to the
<PAGE>
-3-
Class A-2B Certificates, the "Record Date"), in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of the Class A-2B Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on any Class A-2B 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 Certificates the aggregate initial Certificate
Principal Balance of which is at least $5,000,000, 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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class A-2B Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class A-2B Certificates are exchangeable for new Class A-2B Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
<PAGE>
-4-
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-2B Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Class A-2B 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-2B Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall
<PAGE>
-5-
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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2B Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:_________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-6
FORM OF CLASS B CERTIFICATE
CLASS B MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
7.3400% per annum Class B Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: November 1, 1996 Class B Certificates as of the Issue Date:
$31,978,000
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. B-__ CUSIP No. 361849 AF 9
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
<PAGE>
-2-
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY 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-2A, CLASS A- 2B, CLASS
X-1 AND CLASS X-2 CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
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-2A AND CLASS A-2B 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 AND CLASS H
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
<PAGE>
-3-
B Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class B Certificates (their "Class
Principal Balance") as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class B Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
and State Street Bank and Trust Company, as Trustee. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (as to the Class
B Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class 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) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, 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
<PAGE>
-4-
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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class 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 a Class B Certificate or any interest therein
shall be made under any circumstances (i) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Keogh plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to ERISA or the
Code (each, a "Plan"), or (ii) 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 assets of a Plan, unless: (x) in the case of a Class
B Certificate that constitutes a BookEntry Certificate, the purchase and holding
of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60; or (y) in the case of a
Class B Certificate that is held as a Definitive Certificate, the prospective
transferee provides the Trustee, the Master Servicer and the Depositor with a
certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Trustee, the Master Servicer and the Depositor that such
transfer will not result in a violation of Section 406 of ERISA or Section 4975
of the Code or cause the Master Servicer, the Special Servicer or the Trustee to
be deemed a fiduciary of such Plan or result in the imposition of an excise tax
under Section 4975 of the Code. Each Person who acquires any Class B Certificate
or interest therein (unless it shall have delivered the certification of facts
and Opinion of Counsel referred to in the preceding sentence) shall be deemed to
have certified that it is neither a Plan nor any Person who is directly or
indirectly
<PAGE>
-5-
purchasing such Class B Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan (or, alternatively, for so
long as the Class B Certificates constitute Book-Entry Certificates, that the
purchase and holding of such Certificate or interest therein is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Prohibited Transaction Class Exemption 95-60). The Trustee may
require that any prospective transferee of a Class B Certificate that is held as
a Definitive Certificate, provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class B Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class B Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders
<PAGE>
-6-
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of
designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:_________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-7
FORM OF CLASS C CERTIFICATE
CLASS C MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
7.4300% per annum Class C Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: November 1, 1996 Class C Certificates as of the Issue Date:
$26,268,000
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. C-__ CUSIP No. 361849 AG 7
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
<PAGE>
-2-
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY 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-2A, CLASS A- 2B, CLASS
X-1, CLASS X-2 AND CLASS B CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
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-2A, CLASS A-2B 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 AND CLASS H 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
<PAGE>
-3-
C Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class C Certificates (their "Class
Principal Balance") as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class C Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
and State Street Bank and Trust Company, as Trustee. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (as to the Class
C Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class 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) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, 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
<PAGE>
-4-
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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class C Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class C Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class C Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of a Class C Certificate or any interest therein
shall be made under any circumstances (i) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Keogh plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to ERISA or the
Code (each, a "Plan"), or (ii) 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 assets of a Plan, unless: (x) in the case of a Class
C Certificate that constitutes a BookEntry Certificate, the purchase and holding
of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60; or (y) in the case of a
Class C Certificate that is held as a Definitive Certificate, the prospective
transferee provides the Trustee, the Master Servicer and the Depositor with a
certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Trustee, the Master Servicer and the Depositor that such
transfer will not result in a violation of Section 406 of ERISA or Section 4975
of the Code or cause the Master Servicer, the Special Servicer or the Trustee to
be deemed a fiduciary of such Plan or result in the imposition of an excise tax
under Section 4975 of the Code. Each Person who acquires any Class C Certificate
or interest therein (unless it shall have delivered the certification of facts
and Opinion of Counsel referred to in the preceding sentence) shall be deemed to
have certified that it is neither a Plan nor any Person who is directly or
indirectly
<PAGE>
-5-
purchasing such Class C Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan (or, alternatively, for so
long as the Class C Certificates constitute Book-Entry Certificates, that the
purchase and holding of such Certificate or interest therein is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Prohibited Transaction Class Exemption 95-60). The Trustee may
require that any prospective transferee of a Class C Certificate that is held as
a Definitive Certificate, provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class C Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class C Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders
<PAGE>
-6-
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of
designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:___________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-8
FORM OF CLASS D CERTIFICATE
CLASS D MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
7.7300% per annum Class C Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: November 1, 1996 Class D Certificates as of the Issue Date:
$27,409,000
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. D-__ CUSIP No. 361849 AH 5
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
<PAGE>
-2-
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY 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-2A, CLASS A- 2B, CLASS
X-1, CLASS X-2, CLASS B AND CLASS C CERTIFICATES OF THE SAME SERIES, AS AND TO
THE EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
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-2A, CLASS A-2B, 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 AND CLASS H 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
<PAGE>
-3-
D Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class D Certificates (their "Class
Principal Balance") as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class D Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
and State Street Bank and Trust Company, as Trustee. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (as to the Class
D Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class D Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class D Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, 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
<PAGE>
-4-
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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class 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 a Class D Certificate or any interest therein
shall be made under any circumstances (i) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Keogh plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to ERISA or the
Code (each, a "Plan"), or (ii) 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 assets of a Plan, unless: (x) in the case of a Class
D Certificate that constitutes a BookEntry Certificate, the purchase and holding
of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60; or (y) in the case of a
Class D Certificate that is held as a Definitive Certificate, the prospective
transferee provides the Trustee, the Master Servicer and the Depositor with a
certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Trustee, the Master Servicer and the Depositor that such
transfer will not result in a violation of Section 406 of ERISA or Section 4975
of the Code or cause the Master Servicer, the Special Servicer or the Trustee to
be deemed a fiduciary of such Plan or result in the imposition of an excise tax
under Section 4975 of the Code. Each Person who acquires any Class D Certificate
or interest therein (unless it shall have delivered the certification of facts
and Opinion of Counsel referred to in the preceding sentence) shall be deemed to
have certified that it is neither a Plan nor any Person who is directly or
indirectly
<PAGE>
-5-
purchasing such Class D Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan (or, alternatively, for so
long as the Class D Certificates constitute Book-Entry Certificates, that the
purchase and holding of such Certificate or interest therein is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Prohibited Transaction Class Exemption 95-60). The Trustee may
require that any prospective transferee of a Class D Certificate that is held as
a Definitive Certificate, provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class D Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class D Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders
<PAGE>
-6-
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of
designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
as Trustee
By:__________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:__________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-9
FORM OF CLASS E CERTIFICATE
CLASS E MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
7.8600% per annum Class C Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: November 1, 1996 Class E Certificates as of the Issue Date:
$13,705,000
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. E-__ CUSIP No. 361849 AJ 1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
<PAGE>
-2-
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY 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-2A, CLASS A- 2B, 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 POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
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. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 7, 1996. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN
THE MEANING OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0%
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE
THAN $_____ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE
YIELD TO MATURITY IS ______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____ PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE
THAT THE MORTGAGE ASSETS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE.
<PAGE>
-3-
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-2A, CLASS A-2B, CLASS B, CLASS C AND CLASS D CERTIFICATES OF
THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS F, CLASS G AND CLASS H CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND
CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [Cede & Co.] is the registered owner of
the Percentage Interest evidenced by this Class E Certificate (obtained by
dividing the principal balance of this Class E Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class E Certificates (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class E
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and State Street Bank and Trust
Company, as Trustee. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (as to the Class
E Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class 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) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, 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
<PAGE>
-4-
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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class 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 a Class E Certificate or any interest therein
shall be made under any circumstances (i) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Keogh plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to ERISA or the
Code (each, a "Plan"), or (ii) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of,
<PAGE>
-5-
or with assets of a Plan, unless: (x) in the case of a Class E Certificate that
constitutes a BookEntry Certificate, the purchase and holding of such
Certificate or interest therein is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Prohibited
Transaction Class Exemption 95-60; or (y) in the case of a Class E Certificate
that is held as a Definitive Certificate, the prospective transferee provides
the Trustee, the Master Servicer and the Depositor with a certification of facts
and an Opinion of Counsel which establish to the satisfaction of the Trustee,
the Master Servicer and the Depositor that such transfer will not result in a
violation of Section 406 of ERISA or Section 4975 of the Code or cause the
Master Servicer, the Special Servicer or the Trustee to be deemed a fiduciary of
such Plan or result in the imposition of an excise tax under Section 4975 of the
Code. Each Person who acquires any Class E Certificate or interest therein
(unless it shall have delivered the certification of facts and Opinion of
Counsel referred to in the preceding sentence) shall be deemed to have certified
that it is neither a Plan nor any Person who is directly or indirectly
purchasing such Class E Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan (or, alternatively, for so
long as the Class E Certificates constitute Book-Entry Certificates, that the
purchase and holding of such Certificate or interest therein is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Prohibited Transaction Class Exemption 95-60). The Trustee may
require that any prospective transferee of a Class E Certificate that is held as
a Definitive Certificate, provide such certifications as the Trustee may deem
desirable or necessary in order to establish that such transferee or the Person
in whose name such registration is requested is not a Plan or a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class E Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class E Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of
<PAGE>
-6-
the last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer or the Depositor at a price determined as
provided in the Agreement of all Mortgage Loans and any REO Properties remaining
in the Trust Fund. The Agreement permits, but does not require, the Depositor or
the Master Servicer to purchase from the Trust Fund all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 5% of the aggregate Cut-off Date Principal Balance of
the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% 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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:_________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-10
FORM OF CLASS F CERTIFICATE
CLASS F MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
7.8600% per annum Class F Certificate as of the Issue Date:
$_______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: November 1, 1996 Class F Certificates as of the Issue
Date: $22,841,000
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. F-__ CUSIP No. 361849 AK 8
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY 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-2A, CLASS A- 2B, 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 POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
<PAGE>
-2-
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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
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. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 7, 1996. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN
THE MEANING OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0%
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE
THAN $_____ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE
YIELD TO MATURITY IS ______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____ PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE
THAT THE MORTGAGE ASSETS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE.
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-2A, CLASS A-2B, CLASS B, CLASS C, CLASS D AND CLASS E
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE
AGGREGATE CERTIFICATE
<PAGE>
-3-
PRINCIPAL BALANCE OF THE CLASS G AND CLASS H 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 ___________ is the registered owner of the
Percentage Interest evidenced by this Class F Certificate (obtained by dividing
the principal balance of this Class F Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class F Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and State Street Bank and Trust
Company, as Trustee. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (as to the Class
F Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class 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) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, 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
<PAGE>
-4-
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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class F Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class F Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class F Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which 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: (i) if such transfer is purportedly being made in
reliance upon Rule 144A under the Securities Act, 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; and (ii) in all other cases,
<PAGE>
-5-
(A) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached to the Agreement as Exhibit B-1 and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached to the Agreement as Exhibit B-3, and (B) unless the
Depositor directs otherwise, an Opinion of Counsel satisfactory to the Trustee
and the Depositor to the effect that such transfer may be made without such
registration (which Opinion of Counsel shall not be an expense of the Trust Fund
or of the Depositor, the Master Servicer, the Special Servicer, the Trustee or
the Certificate Registrar in their respective capacities as such). 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 a Class F Certificate or any interest therein
shall be made to (A) any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or the Code (each, a
"Plan") or (B) any Person who is directly or indirectly purchasing the Class F
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, unless the prospective transferee provides the
Trustee, the Master Servicer and the Depositor with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Trustee, the
Master Servicer and the Depositor that such transfer will not result in a
violation of Section 406 of ERISA or Section 4975 of the Code or cause the
Master Servicer, the Special Servicer or the Trustee to be deemed a fiduciary of
such Plan or result in the imposition of an excise tax under Section 4975 of the
Code. Each Person who acquires any Class F Certificate or interest therein
without delivery of the certification of facts and Opinion of Counsel referred
to in the preceding sentence shall be deemed to have certified that it is
neither a Plan nor any Person who is directly or indirectly purchasing such
Class F Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan. The Trustee may require that any
prospective transferee of a Class F Certificate that is held as a Definitive
Certificate, provide such certifications as the Trustee may deem desirable or
necessary in order to establish that such transferee or the Person in whose name
such registration is 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 assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class F Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class F Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and
<PAGE>
-6-
any agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% 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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:_________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-11
FORM OF CLASS G CERTIFICATE
CLASS G MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
5.7000% per annum Class G Certificate as of the Issue Date:
$________________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: November 1, 1996 Class G Certificates as of the Issue
Date: $19,415,000
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. G-__ CUSIP No. 361849 AL 6
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY 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-2A, CLASS A- 2B, 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 POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
<PAGE>
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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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
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. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 7, 1996. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN
THE MEANING OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0%
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE
THAN $_____ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE
YIELD TO MATURITY IS ______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____ PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE
THAT THE MORTGAGE ASSETS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE.
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-2A, CLASS A-2B, 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
<PAGE>
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CERTIFICATE PRINCIPAL BALANCE OF THE CLASS H 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. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that ___________ is the registered owner of the
Percentage Interest evidenced by this Class G Certificate (obtained by dividing
the principal balance of this Class G Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class G Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and State Street Bank and Trust
Company, as Trustee. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (as to the Class
G Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class 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) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, 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
<PAGE>
-4-
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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class G Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class G Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which 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: (i) if such transfer is purportedly being made in
reliance upon Rule 144A under the Securities Act, a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit B-1
<PAGE>
-5-
to the Agreement and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as Exhibit B-2 to the Agreement;
and (ii) in all other cases, (A) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached to the
Agreement as Exhibit B-1 and a certificate from such Certificateholder's
prospective transferee substantially in the form attached to the Agreement as
Exhibit B-3, and (B) unless the Depositor directs otherwise, an Opinion of
Counsel satisfactory to the Trustee and the Depositor to the effect that such
transfer may be made without such registration (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such). 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 a Class G Certificate or any interest therein
shall be made to (A) any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or the Code (each, a
"Plan") or (B) any Person who is directly or indirectly purchasing the Class G
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, unless the prospective transferee provides the
Trustee, the Master Servicer and the Depositor with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Trustee, the
Master Servicer and the Depositor that such transfer will not result in a
violation of Section 406 of ERISA or Section 4975 of the Code or cause the
Master Servicer, the Special Servicer or the Trustee to be deemed a fiduciary of
such Plan or result in the imposition of an excise tax under Section 4975 of the
Code. Each Person who acquires any Class G Certificate or interest therein
without delivery of the certification of facts and Opinion of Counsel referred
to in the preceding sentence shall be deemed to have certified that it is
neither a Plan nor any Person who is directly or indirectly purchasing such
Class G Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan. The Trustee may require that any
prospective transferee of a Class G Certificate that is held as a Definitive
Certificate, provide such certifications as the Trustee may deem desirable or
necessary in order to establish that such transferee or the Person in whose name
such registration is requested is not a Plan or a Person who is directly or
indirectly purchasing such Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class G Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class G Certificates.
<PAGE>
-6-
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% 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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
as Trustee
By:__________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:_________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-12
FORM OF CLASS H CERTIFICATE
CLASS H MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Pass-Through Rate: Certificate Principal Balance of this
5.7000% per annum Class H Certificate as of the Issue Date:
$_________________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: November 1, 1996 Class H Certificates as of the Issue
Date: $19,415,204
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,822,151
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. H-__ CUSIP No. 361849 AM 4
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY 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-2A, CLASS A- 2B, 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
<PAGE>
-2-
PROVIDED IN THE POOLING AND SERVICING 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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
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. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 7, 1996. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN
THE MEANING OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0%
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE
THAN $_____ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE
YIELD TO MATURITY IS ______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____ PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE
THAT THE MORTGAGE ASSETS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN
<PAGE>
-3-
FOLLOWING RETIREMENT OF THE CLASS A-1, CLASS A-2A, CLASS A-2B, CLASS B, CLASS C,
CLASS D, CLASS E, CLASS F AND CLASS G CERTIFICATES OF THE SAME SERIES. IN
ADDITION, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED
IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED
EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that ___________ is the registered owner of the
Percentage Interest evidenced by this Class H Certificate (obtained by dividing
the principal balance of this Class H Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class H Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class H
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and State Street Bank and Trust
Company, as Trustee. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (as to the Class
H Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class 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) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, 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
<PAGE>
-4-
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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and the Distribution Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class H Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class H Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which 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: (i) if such transfer is purportedly being made in
reliance upon Rule 144A under the Securities Act, 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
<PAGE>
-5-
substantially in the form attached as Exhibit B-2 to the Agreement; and (ii) in
all other cases, (A) a certificate from the Certificateholder desiring to effect
such transfer substantially in the form attached to the Agreement as Exhibit B-1
and a certificate from such Certificateholder's prospective transferee
substantially in the form attached to the Agreement as Exhibit B-3, and (B)
unless the Depositor directs otherwise, an Opinion of Counsel satisfactory to
the Trustee and the Depositor to the effect that such transfer may be made
without such registration (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such). 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 a Class H Certificate or any interest therein
shall be made to (A) any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or the Code (each, a
"Plan") or (B) any Person who is directly or indirectly purchasing the Class H
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, unless the prospective transferee provides the
Trustee, the Master Servicer and the Depositor with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Trustee, the
Master Servicer and the Depositor that such transfer will not result in a
violation of Section 406 of ERISA or Section 4975 of the Code or cause the
Master Servicer, the Special Servicer or the Trustee to be deemed a fiduciary of
such Plan or result in the imposition of an excise tax under Section 4975 of the
Code. Each Person who acquires any Class H Certificate or interest therein
without delivery of the certification of facts and Opinion of Counsel referred
to in the preceding sentence shall be deemed to have certified that it is
neither a Plan nor any Person who is directly or indirectly purchasing such
Class H Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan. The Trustee may require that any
prospective transferee of a Class H Certificate that is held as a Definitive
Certificate, provide such certifications as the Trustee may deem desirable or
necessary in order to establish that such transferee or the Person in whose name
such registration is requested is not a Plan or a Person who is directly or
indirectly purchasing such Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class H Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class H Certificates.
<PAGE>
-6-
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% 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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:_________________________________
Authorized Officer
<PAGE>
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 PassThrough 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.
<PAGE>
EXHIBIT A-13
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: November 1, 1996 this Certificate in the related Class:
____%
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. R-I-__ CUSIP No.: 361849 AN 2
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY 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-2A, CLASS A- 2B, 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 POOLING
AND SERVICING 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
<PAGE>
-2-
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 POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
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 DESCRIBED HEREIN. 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 POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _____________ is the registered owner of
the Percentage Interest evidenced by this Class R-I Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-I Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and State Street Bank and Trust
Company, as Trustee. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately
<PAGE>
-3-
following (each, a "Distribution Date"), commencing upon the First Distribution
Date specified above, to the Person in whose name this Certificate is registered
at the close of business on the last Business Day of the month immediately
preceding the month of such distribution (as to the Class R-I Certificates, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to the
Holders of the Class R-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
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-I Certificates are
exchangeable for new Class R-I Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-I Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which 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: (i) if such transfer is purportedly being made in
reliance upon Rule 144A under the Securities Act, a certificate from the
<PAGE>
-4-
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; and (ii) in all other cases, (A) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached to the Agreement as Exhibit B-1 and a certificate from such
Certificateholder's prospective transferee substantially in the form attached to
the Agreement as Exhibit B-3, and (B) unless the Depositor directs otherwise, an
Opinion of Counsel satisfactory to the Trustee and the Depositor to the effect
that such transfer may be made without such registration (which Opinion of
Counsel shall not be an expense of the Trust Fund or of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate Registrar
in their respective capacities as such). None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class R-I
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class R-I Certificate without registration or qualification. Any Class R-I
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-I Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of a Class R-I Certificate or any interest therein
shall be made to (A) any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or the Code (each, a
"Plan") or (B) any Person who is directly or indirectly purchasing the Class R-I
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, unless the prospective transferee provides the
Trustee, the Master Servicer and the Depositor with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Trustee, the
Master Servicer and the Depositor that such transfer will not result in a
violation of Section 406 of ERISA or Section 4975 of the Code or cause the
Master Servicer, the Special Servicer or the Trustee to be deemed a fiduciary of
such Plan or result in the imposition of an excise tax under Section 4975 of the
Code. Each Person who acquires any Class R-I Certificate or interest therein
(unless it shall have delivered the certification of facts and Opinion of
Counsel referred to in the preceding sentence) shall be deemed to have certified
that it is neither a Plan nor any Person who is directly or indirectly
purchasing such Class R-I Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan. The Trustee may require
that any prospective transferee of a Class R-I 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 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),
<PAGE>
-5-
to have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and a United States Person and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit C-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its Ownership Interest unless
it provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United States Person. Each Person holding or acquiring an Ownership
Interest in this Certificate, by purchasing such Ownership Interest herein,
agrees to give the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-I Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-
<PAGE>
-6-
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 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, or an estate or trust 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.
No service charge will be imposed for any registration of
transfer or exchange of Class R-I Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class R-I Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by
<PAGE>
-7-
the Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 5% of the aggregate Cut-off Date Principal Balance of
the Mortgage specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% 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.
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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
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:
State Street Bank and Trust Company,
as Certificate Registrar
By:__________________________________
Authorized Officer
<PAGE>
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 PassThrough 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 be by check made payable to
_________________________ and mailed to________________________________________.
Applicable statements and notices should be mailed to _________________
______________________________________________.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-14
FORM OF CLASS R-II CERTIFICATE
CLASS R-II MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: November 1, 1996 this Certificate in the related Class:
____%
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. R-II-__ CUSIP No.: 361849 AP 7
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY 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-2A, CLASS A- 2B, 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 POOLING
AND SERVICING 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
<PAGE>
-2-
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 POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
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 DESCRIBED HEREIN. 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 POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _____________ is the registered owner of
the Percentage Interest evidenced by this Class R-II Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-II Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and State Street Bank and Trust
Company, as Trustee. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately
<PAGE>
-3-
following (each, a "Distribution Date"), commencing upon the First Distribution
Date specified above, to the Person in whose name this Certificate is registered
at the close of business on the last Business Day of the month immediately
preceding the month of such distribution (as to the Class R-II Certificates, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to the
Holders of the Class R-II Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on any
Class R-II Certificate will be made by the Trustee by check mailed to the
address of the Person entitled thereto, as such name and address appear in the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-II Certificates are
exchangeable for new Class R-II Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-II Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which 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: (i) if such transfer is purportedly being
<PAGE>
-4-
made in reliance upon Rule 144A under the Securities Act, 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; and (ii) in all other cases, (A) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached to the Agreement as Exhibit B-1 and a certificate from such
Certificateholder's prospective transferee substantially in the form attached to
the Agreement as Exhibit B-3, and (B) unless the Depositor directs otherwise, an
Opinion of Counsel satisfactory to the Trustee and the Depositor to the effect
that such transfer may be made without such registration (which Opinion of
Counsel shall not be an expense of the Trust Fund or of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate Registrar
in their respective capacities as such). None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class R-II
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class R-II Certificate without registration or qualification. Any Class R-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-II Certificate agrees to, indemnify the Depositor, the
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of a Class R-II Certificate or any interest
therein shall be made to (A) any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or the Code
(each, a "Plan") or (B) any Person who is directly or indirectly purchasing the
Class R-II Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan, unless the prospective transferee
provides the Trustee, the Master Servicer and the Depositor with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee, the Master Servicer and the Depositor that such transfer will not
result in a violation of Section 406 of ERISA or Section 4975 of the Code or
cause the Master Servicer, the Special Servicer or the Trustee to be deemed a
fiduciary of such Plan or result in the imposition of an excise tax under
Section 4975 of the Code. Each Person who acquires any Class R-II Certificate or
interest therein (unless it shall have delivered the certification of facts and
Opinion of Counsel referred to in the preceding sentence) shall be deemed to
have certified that it is neither a Plan nor any Person who is directly or
indirectly purchasing such Class R-II Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan. The Trustee
may require that any prospective transferee of a Class R-II 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 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
<PAGE>
-5-
shall become a Holder of this Certificate in violation of the provisions of such
Section 5.02(d), to have irrevocably authorized the Trustee under clause (ii)(A)
of such Section 5.02(d) to deliver payments to a Person other than such Person
and to have irrevocably authorized the Trustee under clause (ii)(B) of such
Section 5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and a United States Person and shall
promptly notify the Trustee of any change or impending change in its status as a
Permitted Transferee or United States Person. In connection with any proposed
Transfer of any Ownership Interest in this in this Certificate, the Trustee
shall require delivery to it, and shall not register the Transfer of this
Certificate until its receipt of, an affidavit and agreement substantially in
the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Trustee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee and a United States Person, that it is not
acquiring its Ownership Interest in this Certificate as a nominee, trustee or
agent for any Person that is not a Permitted Transferee or is not a United
States Person, that for so long as it retains its Ownership Interest in this
Certificate, it will endeavor to remain a Permitted Transferee and a United
States Person, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Trustee has
actual knowledge that the proposed Transferee is not a Permitted Transferee or
is not a United States Person, the Trustee shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its Ownership Interest unless
it provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United States Person. Each Person holding or acquiring an Ownership
Interest in this Certificate, by purchasing such Ownership Interest herein,
agrees to give the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-II Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-
<PAGE>
-6-
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 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, or an estate or trust 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.
No service charge will be imposed for any registration of
transfer or exchange of Class R-II Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class R-II Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by
<PAGE>
-7-
the Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 5% of the aggregate Cut-off Date Principal Balance of
the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% 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.
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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
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:
State Street Bank and Trust Company,
as Certificate Registrar
By:__________________________________
Authorized Officer
<PAGE>
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 PassThrough 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 be by check made payable to
____________________________ and mailed to_____________________________________.
Applicable statements and notices should be mailed to _________________
________________________________________.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-15
FORM OF CLASS R-III CERTIFICATE
CLASS R-III MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: November 1, 1996 this Certificate in the related Class:
___%
Cut-off Date: November 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: November 7, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
December 16, 1996 whether or not received:
$456,736,350
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Certificate No. R-III-__ CUSIP No.: 361849 AQ 5
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
STATE STREET BANK AND TRUST COMPANY 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-2A, CLASS A- 2B, 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 POOLING
AND SERVICING 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
<PAGE>
-2-
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 POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
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 DESCRIBED HEREIN. 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 POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _____________ is the registered owner of
the Percentage Interest evidenced by this Class R-III Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-III Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and State Street Bank and Trust
Company, as Trustee. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
<PAGE>
-3-
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 (as to the
Class R-III Certificates, the "Record Date"), in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of the Class R-III Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on any Class R-III Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto, as such name and
address appear in the Certificate Register. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice.
The Depositor's Mortgage Pass-Through Certificates, Series
1996-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account and Distribution Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-III Certificates are
exchangeable for new Class R-III Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-III Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-III Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which 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
<PAGE>
-4-
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: (i) if such transfer is purportedly being made in reliance upon
Rule 144A under the Securities Act, 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;
and (ii) in all other cases, (A) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached to the
Agreement as Exhibit B-1 and a certificate from such Certificateholder's
prospective transferee substantially in the form attached to the Agreement as
Exhibit B-3, and (B) unless the Depositor directs otherwise, an Opinion of
Counsel satisfactory to the Trustee and the Depositor to the effect that such
transfer may be made without such registration (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such). None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class R-III
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class R-III Certificate without registration or qualification. Any Class R-III
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-III Certificate agrees to, indemnify the Depositor,
the Trustee and the Certificate Registrar against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
No transfer of a Class R-III Certificate or any interest
therein shall be made to (A) any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, that is subject to ERISA or the Code
(each, a "Plan") or (B) any Person who is directly or indirectly purchasing the
Class R-III Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan, unless the prospective transferee
provides the Trustee, the Master Servicer and the Depositor with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee, the Master Servicer and the Depositor that such transfer will not
result in a violation of Section 406 of ERISA or Section 4975 of the Code or
cause the Master Servicer, the Special Servicer or the Trustee to be deemed a
fiduciary of such Plan or result in the imposition of an excise tax under
Section 4975 of the Code. Each Person who acquires any Class R-III Certificate
or interest therein (unless it shall have delivered the certification of facts
and Opinion of Counsel referred to in the preceding sentence) shall be deemed to
have certified that it is neither a Plan nor any Person who is directly or
indirectly purchasing such Class R-III Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan. The Trustee
may require that any prospective transferee of a Class R-III 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 assets of a Plan.
<PAGE>
-5-
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and a United States Person and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit C-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Certificate
Registrar shall not register the Transfer of an Ownership Interest in this
Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its Ownership Interest unless
it provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United States Person. Each Person holding or acquiring an Ownership
Interest in this Certificate, by purchasing such Ownership Interest herein,
agrees to give the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor, to
the effect that such
<PAGE>
-6-
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 REMICrelated 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 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, or an estate or trust 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.
No service charge will be imposed for any registration of
transfer or exchange of Class R-III Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class R-III Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agents of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
<PAGE>
-7-
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 5% of the aggregate Cut-off Date
Principal Balance of the Mortgage Pool specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% 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.
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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
State Street Bank and Trust Company,
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:
State Street Bank and Trust Company,
as Certificate Registrar
By:___________________________________
Authorized Officer
<PAGE>
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 PassThrough 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 be by check made payable to
___________________________ and mailed to_____________________________________.
Applicable statements and notices should be mailed to _________________
__________________________________.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
-10-
EXHIBIT B-1
FORM I OF TRANSFEROR CERTIFICATE
_____________, 19__
State Street Bank and Trust Company
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates Series 1996-C1, Class [F] [G]
[H], having an initial principal balance as of
____________ ___, 1996 of $__________
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificate (the "Certificate"), pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of ____________ 1, 1996, among GMAC Commercial Mortgage Securities, Inc. as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, and State Street Bank and Trust Company, as Trustee. All terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Certificate with the full
right to transfer the Certificate 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 Certificate,
any interest in the Certificate 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 Certificate, any interest in the Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to the Certificate, any interest in the Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation with respect to the Certificate, any interest in the Certificate 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 Certificate, any
interest in the Certificate 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 Certificate a violation of Section 5 of the
Securities Act or any state securities laws, or would require registration or
qualification of the Certificate pursuant to the Securities Act or any state
securities laws.
<PAGE>
-11-
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. In determining whether the Transferee is a
"qualified institutional buyer," the Transferor and any person acting on behalf
of the Transferor in this matter has relied upon the following method(s) of
establishing the Transferee's ownership and discretionary investments of
securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a date within 16
months preceding the date of sale of the Certificate in the case of a U.S.
purchaser and within 18 months preceding such date of sale for a foreign
purchaser; or
___ (b) The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and Exchange Commission or
another United States federal, state, or local governmental agency or
self-regulatory organization, or with a foreign governmental agency or
self-regulatory organization, which information is as of a date within 16 months
preceding the date of sale of the Certificate in the case of a U.S. purchaser
and within 18 months preceding such date of sale for a foreign purchaser; or
___ (c) The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date within 16 months
preceding the date of sale of the Certificate in the case of a U.S. purchaser
and within 18 months preceding such date of sale for a foreign purchaser; or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the Transferee,
specifying the amount of securities owned and invested on a discretionary basis
by the Transferee as of a specific date on or since the close of the
Transferee's most recent fiscal year, or, in the case of a Transferee that is a
member of a "family of investment companies," as that term is defined in Rule
144A, a certification by an executive officer of the investment adviser
specifying the amount of securities owned by the "family of investment
companies" as of a specific date on or since the close of the Transferee's most
recent fiscal year.
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a "qualified institutional buyer:"
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with the Transferee;
securities that are part of an unsold allotment to or subscription by
the Transferee, if the Transferee is a dealer; securities of issuers
that are part of the Transferee's "family of investment companies," if
the Transferee is a registered investment company; bank deposit notes
and certificates of deposit; loan participations; repurchase
agreements; securities owned but subject to a repurchase agreement; and
currency, interest rate and commodity swaps;
<PAGE>
-12-
(b) the aggregate value of the securities shall be the cost of
such securities, except where the entity 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 may be
valued at market; and
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be
included if the investments of such subsidiaries are managed under the
direction of the entity, except that, unless the entity is a reporting
company under Section 13 or 15(d) of the Securities Exchange Act of
1934, securities owned by such subsidiaries may not be included if the
entity itself is a majority-owned subsidiary that would be included in
the consolidated financial statements of another enterprise.
5. 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.
<PAGE>
-13-
6. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Certificate 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 Certificate, that the
Transferee has requested.
Very truly yours,
(Transferor)
By:
Name:
Title:
<PAGE>
-14-
EXHIBIT B-2
FORM I OF TRANSFEREE CERTIFICATE
_____________, 19__
State Street Bank and Trust Company
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass- Through Certificates, Series 1996-C1, Class [F]
[G] [H], having an initial principal balance as of
_____________ ___, 1996 of $__________
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificate (the "Certificate"), pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of _____________, 1996, among GMAC Commercial Mortgage Securities, Inc., as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer and State Street Bank and Trust Company, as Trustee. All terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. The 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 Certificate for its own account or for the account of a qualified
institutional buyer, and understands that such Certificate 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 Certificate 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 Certificate, that it
has requested.
3. If the Transferee proposes that the Certificate be registered in the
name of a nominee, such nominee has completed the Nominee Acknowledgement below.
<PAGE>
-15-
Very truly yours,
(Transferee)
By:
Name:
Title:
<PAGE>
-16-
NOMINEE ACKNOWLEDGEMENT
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.
(Nominee)
By:
Name:
Title:
<PAGE>
-17-
ANNEX 1 TO EXHIBIT B-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], 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 Certificate (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
$______________________(1) 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) 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
<PAGE>
-18-
and loan association, and not more than 18 months preceding such date
of sale for a foreign savings and loan association or equivalent
institution.
___ BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
___ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA PLAN. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ OTHER. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i) securities
of issuers that are affiliated with the Transferee, (ii) securities that are
part of an unsold allotment to or subscription by the Transferee, if the
Transferee is a dealer, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
did not include any of the securities referred to in this paragraph.
(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.
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.
<PAGE>
-19-
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 Certificate 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.
Yes No Will the Transferee be purchasing the Certificate
only for the Transferee's own account?
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:
<PAGE>
-20-
ANNEX 2 TO EXHIBIT B-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], 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 Certificate (the "Transferee") or, if the Transferee is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because the Transferee is part of a Family
of Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule 144A). ____
The Transferee is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
<PAGE>
-21-
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.
Yes No
Will the Transferee be purchasing the Certificate only for the
Transferee's own account?
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 Certificate 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:
IF AN ADVISER:
Print Name of Transferee
Date:
<PAGE>
-22-
EXHIBIT B-3
FORM II OF TRANSFEREE CERTIFICATE
_____________, 19__
State Street Bank and Trust Company
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass- Through Certificates, Series 1996-C1, Class [F]
[G] [H], having an initial principal balance as of
___________ ___, 1996 of $__________
Dear Sirs:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to ______________________ (the
"Transferee") of the captioned Certificate (the "Certificate"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of ___________ __, 1996, among GMAC Commercial Mortgage
Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer and Special Servicer, and State Street Bank and Trust Company, as
Trustee. All terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is acquiring the Certificate for its own account for
investment and not with a view to or for sale or transfer in connection with any
distribution thereof, in whole or in part, in any manner which would violate the
Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws.
2. The Transferee understands that (a) the Certificate has not been and
will not be registered under the Securities Act or registered or qualified under
any applicable state securities laws, (b) neither the Depositor nor the Trustee
is obligated so to register or qualify the Certificate and (c) neither the
Certificate nor any security issued in exchange therefor or in lieu thereof may
be resold or transferred unless it is (i) registered pursuant to the Securities
Act and registered or qualified pursuant to any applicable state securities laws
or (ii) sold or transferred in a transaction which is exempt from such
registration and qualification and the Certificate Registrar has received (A) a
certificate from the prospective transferor substantially in the form attached
as Exhibit B-1 to the Pooling and Servicing Agreement, and a certificate from
the prospective transferee substantially in the form attached either as Exhibit
B-2 or Exhibit B-3 to the Pooling and Servicing Agreement, or (B) an Opinion of
Counsel satisfactory to the Certificate Registrar that the transfer may be made
without registration under the Securities Act, together with the written
certification(s) as to the facts surrounding the transfer from the prospective
transferor and/or prospective transferee upon which such Opinion of Counsel is
based.
3. The Transferee understands that it may not sell or otherwise
transfer the Certificate, any security issued in exchange therefor or in lieu
thereof or any interest in the foregoing except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement,
<PAGE>
-23-
which provisions it has carefully reviewed, and that the Certificate will bear
legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE 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 POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
- AND -
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE 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 DESCRIBED HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred the Certificate,
any interest in the Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of the Certificate, any interest in the Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to the Certificate, any interest in the Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Certificate under the Securities Act, would render the disposition of the
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of the Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Certificate, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Certificate and distributions thereon, (c) the Mortgage
Loans, (d) the Pooling and Servicing Agreement, and (e) all related matters,
that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act 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; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment.
<PAGE>
-24-
Very truly yours,
(Transferee)
By:
Name:
Title:
<PAGE>
-1-
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 1996-C1, Class
[R-I] [R-II] [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 or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. 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, 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, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
nonPermitted 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 an affidavit that the
<PAGE>
-2-
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 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 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.
2
<PAGE>
-3-
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 H-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
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, or an
estate or trust 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.
3
<PAGE>
-4-
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 , ____.
[NAME OF TRANSFEREE]
By:______________________________
[Name of Officer]
[Title of Officer]
[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
___________, 19__.
4
<PAGE>
-5-
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 19__
State Street Bank and Trust Company
Two International Place
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1996-C1 (the
"Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of [Class R-I] [Class R-II] [Class R-III] Certificates evidencing
a ____% Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of _______________, 1996 (the "Pooling
and Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc., as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer and State Street Bank and Trust Company, as Trustee. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer 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. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may
<PAGE>
continue to be liable for United States income taxes associated therewith)
unless the Transferor has conducted such an investigation.
Very truly yours,
____________________________________
(Transferor)
By:_________________________________
Name:_______________________________
Title:______________________________
<PAGE>
-7-
EXHIBIT D
(Form of Delinquent Loan Status Report)
GMAC COMMERCIAL MORTGAGE SECURITIES, INC., AS DEPOSITOR
GMAC COMMERCIAL MORTGAGE CORPORATION, AS A SERVICER AND A MORTGAGE LOAN SELLER
CONTITRADE SERVICES L.L.C., A MORTGAGE LOAN SELLER
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, A MORTGAGE LOAN SELLER
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
<TABLE>
DELINQUENCY LOAN DETAIL
<CAPTION>
OUTSTANDING SPECIAL
OFFERING CURRENT OUTSTANDING
PROPERTY ADVANCE LOAN SERVICER
CIRCULAR LOAN PAID THRU P&I P&I
PROTECTION DESCRIPTION STATUS TRANSFER FORECLOSURE BANKRUPTCY
CONTROL# GROUP PERIOD DATE ADVANCE ADVANCES*
- ----------------------------------------------------------------------------------------------------------
ADVANCES (1) (2) DATE DATE DATE REO DATE
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
TOTALS: 0.00 0.00 0.00
</TABLE>
(1) Advance Description
0. P&I Advance -- Late Payment but G one month delinquent
1. P&I Advance -- Loan delinquent 1 month
2. P&I Advance -- Loan Delinquent 2 months
3. P&I Advance -- Loan delinquent 3 months or more
4. P&I Advance -- Loan in Grace Period
5. P&I Advance -- Assumed Scheduled Payment
(2) Loan Status
1. Specially Serviced 6. DPO
2. Foreclosure 7. Foreclosure Sale
<PAGE>
-8-
3. Bankruptcy 8. Bankruptcy Sale
4. REO 9. REO Disposition
5. Prepay in Full 10. Modification/Workout
*Outstanding P&I Advances include the current period P&I Advance
<PAGE>
-9-
EXHIBIT E
(Form of Historical Loan Modification Report)
GMAC COMMERCIAL MORTGAGE SECURITIES, INC., AS DEPOSITOR
GMAC COMMERCIAL MORTGAGE CORPORATION, AS A SERVICER AND A MORTGAGE LOAN SELLER
CONTITRADE SERVICES L.L.C., A MORTGAGE LOAN SELLER
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, A MORTGAGE LOAN SELLER
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
<TABLE>
MODIFIED LOAN DETAIL
<CAPTION>
OFFERING
MODIFICATION CIRCULAR MODIFICATION MODIFICATION
DATE CONTROL# DATE DESCRIPTION
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C>
</TABLE>
<PAGE>
-10-
EXHIBIT F
(Form of Historical Loss Report)
GMAC COMMERCIAL MORTGAGE SECURITIES, INC., AS DEPOSITOR
GMAC COMMERCIAL MORTGAGE CORPORATION, AS A SERVICER AND A MORTGAGE LOAN SELLER
CONTITRADE SERVICES L.L.C., A MORTGAGE LOAN SELLER
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, A MORTGAGE LOAN SELLER
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
<TABLE>
REALIZED LOSS DETAIL
<CAPTION>
APPRAISAL
OFFERING VALUE/ SCHED
AGGREGATE NET AS A % OF CURRENT
DISTRIBUTION CIRCULAR APPRAISAL BROKERS PRINCIPAL GROSS
LIQUIDATION LIQUIDATION SCHED REALIZED
DATE CONTROL# DATE ESTIMATE BALANCE PROCEEDS
- ---------------------------------------------------------------------------------------------------
EXPENSES* PROCEEDS BALANCE LOSS
- -------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Current Total 0 0
Cumulative 0 0
<CAPTION>
GROSS NET
PROCEEDS PROCEEDS
AS A % OF
AGGREGATE NET
DISTRIBUTION SCHED
LIQUIDATION LIQUIDATION
DATE PRINCIPAL
- -----------------------------------------------------------------------------------
EXPENSES* PROCEEDS
- ------------------------
<S> <C> <C> <C>
Current Total 0 0 0 0
Cumulative 0 0 0 0
</TABLE>
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid special servicing fees, unpaid trustee fees, etc.
<PAGE>
-11-
EXHIBIT G
(Form of REO Status Report)
GMAC COMMERCIAL MORTGAGE SECURITIES, INC., AS DEPOSITOR
GMAC COMMERCIAL MORTGAGE CORPORATION, AS A SERVICER AND A MORTGAGE LOAN SELLER
CONTITRADE SERVICES L.L.C., A MORTGAGE LOAN SELLER
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, A MORTGAGE LOAN SELLER
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
<TABLE>
DELINQUENCY/PREPAYMENT/RATE HISTORY REPORTING
<CAPTION>
FORECLOSURE/
DISTRIBUTION DELINQ 1 MONTHS DELINQ 2 MONTHS DELINQ 3+ MONTHS BANKRUPTCY
-----------------------------------------------------------------------------------------------------
DATE # BALANCE # BALANCE # BALANCE # BALANCE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
<CAPTION>
DISTRIBUTION REO MODIFICATIONS PREPAYMENTS NEW WEIGHTED AVG.
----------------------------------------------------------------------------------------------
DATE # BALANCE # BALANCE # BALANCE COUPON REMIT
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
Note: Foreclosure and REO Totals are Included in the Appropriate Delinquency
Aging Category
<PAGE>
EXHIBIT H
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.
<PAGE>
-2-
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
<PAGE>
-3-
EXHIBIT I
(Form of Special Servicer Loan Status Report)
<TABLE>
GMAC COMMERCIAL MORTGAGE SECURITIES, INC., AS DEPOSITOR
GMAC COMMERCIAL MORTGAGE CORPORATION, AS A SERVICER AND A MORTGAGE LOAN SELLER
CONTITRADE SERVICES L.L.C., A MORTGAGE LOAN SELLER
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, A MORTGAGE LOAN SELLER
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-C1
<CAPTION>
SPECIALLY SERVICED LOAN STATUS LOANS
Number of Loans as of the Closing Date
Principal Balance as of the Closing Date
Current Number of Loans
Current Outstanding Principal Balance
Current Number of Specially Serviced Loans
Current Outstanding Principal Balance of Specially Serviced Loans
Percent of Specially Serviced Loans (per Current Number of Loans)
Percent of Specially Serviced Loans (per Current Outstanding Principal Balance)
CURRENT
PRINCIPAL
INITIAL CURRENT BALANCE AS A %
NUMBER OF PRINCIPAL PRINCIPAL OF SPECIALLY
SPECIALLY SERVICED LOAN STATUS LOANS BALANCE BALANCE SERVICED LOANS
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1) Request for waiver of Prepayment Penalty
2) Payment Default
3) Request for Loan Modification or Workout
4) Loans with Borrower Bankruptcy
5) Loans in Process of Foreclosure
<PAGE>
-4-
<S> <C> <C> <C> <C>
6) Loans now REO Property
7) Loans Paid Off
8) Loans Returned to Master Servicer
Total 0.00 0.00 0.00
<CAPTION>
Statement Date:
Payment Date:
Prior Payment:
Record Date:
Number of Loans as of the Closing Date 0
Principal Balance as of the Closing Date 0.00
Current Number of Loans 0
Current Outstanding Principal Balance 0.00
Current Number of Specially Serviced Loans 0
Current Outstanding Principal Balance of Specially Serviced Loans 0.00
Percent of Specially Serviced Loans (per Current Number of Loans) 0.0000%
Percent of Specially Serviced Loans (per Current Outstanding Principal Balance) 0.0000%
CURRENT
PRINCIPAL
BALANCE AS A %
OF TOTAL POOL
SPECIALLY SERVICED LOAN STATUS BALANCE
- ----------------------------------------------------------------------------------------------
<S> <C>
1) Request for waiver of Prepayment Penalty
2) Payment Default
3) Request for Loan Modification or Workout
4) Loans with Borrower Bankruptcy
5) Loans in Process of Foreclosure
6) Loans now REO Property
7) Loans Paid Off
8) Loans Returned to Master Servicer
Total
</TABLE>
<PAGE>
-5-
<TABLE>
GMAC COMMERCIAL MORTGAGE SECURITIES, INC., AS DEPOSITOR
GMAC COMMERCIAL MORTGAGE CORPORATION, AS A SERVICER AND A MORTGAGE LOAN SELLER
CONTITRADE SERVICES L.L.C., A MORTGAGE LOAN SELLER
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, A MORTGAGE LOAN SELLER
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-C1
<CAPTION>
SPECIALLY SERVICED LOAN DETAIL
SPECIAL
OFFERING SERVICER SCHED SCHED NET
CIRCULAR TRANSFER PRINCIPAL INTEREST MATURITY PROPERTY OPERATING
CONTROL# DATE BALANCE RATE DATE TYPE STATE INCOME
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
<CAPTION>
Statement Date:
Payment Date:
Prior Payment:
Record Date:
DEBT SPECIALLY
OFFERING SERVICE SERVICED
CIRCULAR COVERAGE STATUS
CONTROL# NOI DATE RATIO CODE*
- -----------------------------------------------------------------------------
<S> <C> <C> <C>
</TABLE>
* Legend
1) Request for waiver of Prepayment Penalty
2) Payment Default
3) Request for Loan Modification or Workout
4) Loans with Borrower Bankruptcy
5) Loans in Process of Foreclosure
6) Loans now REO Property
7) Loan Paid Off
8) Loans Returned to Master Servicer
<PAGE>
-6-
EXHIBIT J
(Form of Section 4.02 Information and Reports)
ANNEX A
CERTAIN CHARACTERISTICS
OF THE MORTGAGE LOANS
<PAGE>
-7-
ANNEX A
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
The schedule and tables appearing in this Annex A set forth certain
information with respect to the Mortgage Loans and Mortgaged Properties. Such
information is presented, where applicable, as of the Cut-off Date. The
statistics in such schedule and tables were derived, in many cases, from
information and operating statements furnished by or on behalf of the respective
borrowers. Such information and operating statements were generally unaudited
and have not been independently verified by the Depositor or the Underwriters or
any of their respective affiliates or any other person. The sum of the amounts
in any column of any of the tables of this Annex A may not equal the indicated
total under such column due to rounding.
Underwriting NOI and the Estimated Annual Revenues and Estimated Annual
Operating Expenses used to determine Underwriting NOI for each Mortgaged
Property are derived from information furnished by the respective borrowers. Net
income for a Mortgaged Property as determined in accordance with generally
accepted accounting principles ("GAAP") would not be the same as the stated
Underwriting NOI, 1995 NOI or 1994 NOI for such Mortgaged Property as set forth
in the following schedule or tables. In addition, none of Underwriting NOI, Most
Recent NOI, 1995 NOI or 1994 NOI is a substitute for or comparable to operating
income as determined in accordance with GAAP as a measure of the results of a
property's operations or a substitute for cash flows from operating activities
determined in accordance with GAAP as a measure of liquidity. No representation
is made as to the future net cash flow of the Mortgaged Properties, nor is the
Underwriting NOI, Most Recent NOI, 1995 NOI or 1994 NOI set forth herein with
respect to any Mortgage Property intended to represent such future net cash
flow.
In the schedule and tables set forth in this Annex A, with respect to
Mortgage Loans evidenced by one Mortgage Note, but secured by multiple Mortgaged
Properties, a portion of the principal balance of the Mortgage Loan has been
allocated to each related Mortgaged Property for certain purposes, including
determining the Cut-off Date Loan-to-Value Ratio, Underwriting Debt Service
Coverage Ratio, Underwriting NOI, Underwriting Cash Flow and Most Recent NOI.
For purposes of the Prospectus Supplement, including the schedule and
tables in this Annex A, the indicated terms shall have the following meanings,
modified accordingly, by reference to the Payment Loan Term Notes and footnotes
to the schedules that follow:
1. "UNDERWRITING NOI" or "U/W NOI" as used herein with respect to any
Mortgaged Property means an estimate, determined prior to the Delivery Date, of
the total cash flow anticipated to be available for annual debt service on a
Mortgage Loan calculated as the excess of Estimated Annual Revenues over
Estimated Annual Operating Expenses, each of which was generally derived in the
following manner:
(i) "ESTIMATED ANNUAL REVENUES" were generally assumed to be
equal to one of the following: (a) the actual amounts of gross rents
(in some cases including percentage rent) received during the latest
12-month period covered by operating statements supplied by the
borrower (or annualized gross rents if such operating statements
covered less than a 12-month period); or (b) the annualized amounts of
gross potential rents or monthly contractual base rents under leases in
effect as reflected on a rent roll provided by the borrower in
connection with the origination of the related Mortgage Loan; or (c)
amounts consistent with historical operating trends and market and
competitive conditions; provided that such revenues were generally
modified by (x) assuming that the occupancy rate for the Mortgaged
Property was consistent with the relevant market if such occupancy rate
was less than the occupancy rate reflected in the most recent rent roll
or operating statements, as the case may be, furnished by the related
borrower or as determined by a site inspection of the Mortgaged
Property, and (y), in the case of retail, industrial/warehouse, office
and medical office Mortgaged Properties, by assuming a level of expense
reimbursements from tenants consistent with the terms of the lease or
historical trends at the property, and in certain cases, assuming that
a specified percentage of rent will become uncollectible. In addition,
in the case of certain Mortgaged Properties, upward adjustments may
have been made with respect to such revenues to account for all or a
portion of the rents provided for under any new leases scheduled to
take effect later in the year.
(ii) "ESTIMATED ANNUAL OPERATING EXPENSES" were generally
assumed to be equal to historical expenses reflected in the operating
statements and other information furnished by the borrower, except that
such expenses were generally modified as follows: (a) adjusting upwards
or downwards to reflect a market level management fee and franchise
fee, as appropriate, and (b) adjusting certain historical expense items
upwards or downwards to amounts that reflect industry norms for the
particular type of property and/or taking into consideration material
changes in the operating position of the related Mortgaged Property
(such as newly signed leases and market data).
2. "UNDERWRITING CASH FLOW" is Underwriting NOI after certain
adjustments have been made that relate to replacement reserves and reserves for
capital expenditures and tenant improvement and leasing commissions.
<PAGE>
-8-
3. "1995 NOI" is the net operating income (1995 Revenues less 1995
Expenses) for a Mortgaged Property as established by information provided by the
related borrower, except that in certain cases such net operating income has
been adjusted by removing certain nonrecurring expenses and revenues or by
certain other normalizations and in certain cases may reflect annualization of
partial year numbers. 1995 NOI does not necessarily reflect accrual of certain
costs such as real estate taxes and capital expenditures and does not reflect
non-cash items such as depreciation or amortization. In some cases, capital
expenditures and non-recurring items may have been treated by a borrower as an
expense but were deducted from 1995 Expenses to reflect normalized 1995 NOI. In
most cases, no attempt was made to verify the accuracy of any information
provided by each borrower or to reflect changes in net operating income that may
have occurred since the date of the information provided by each borrower for
the related Mortgaged Property.
4. "1994 NOI" is the net operating income for 1994, calculated in a
manner consistent with 1995 NOI.
5. "MOST RECENT NOI" is the net operating income for any Mortgaged
Property based on the most recent available operating statement (generally for a
partial year period in 1996) or trailing 12-month net operating income reflected
as of the Most Recent NOI End Date, calculated in a manner consistent with 1995
NOI. Where information was not available for 1996 in respect of a Mortgaged
Property, Most Recent NOI as set forth in this Annex A shall be 1995 NOI.
6. "ANNUAL DEBT SERVICE" means, for any Mortgage Loan 12 times the
Monthly Payment in effect as of the Cut-off Date (or, in the case of each
Cash-Flow Amortization Loan, an assumed Monthly Payment of principal and
interest based on the applicable Current Mortgage Rate and a 25-year
amortization term).
7. "DEBT SERVICE COVERAGE RATIO," "UNDERWRITING DEBT SERVICE COVERAGE
RATIO" and "UNDERWRITING DSC" means, with respect to any Mortgage Loan, (a) the
Underwriting NOI for the related Mortgaged Property, divided by (b) the Annual
Debt Service for such Mortgage Loan.
8. "COMBINED DEBT SERVICE COVERAGE RATIO" or "UNDERWRITING COMBINED
DSC" means, with respect to any Cross-Collateralized Mortgage Loan, (a)
aggregate Underwriting NOI for all the related Mortgaged Properties, divided by
(b) the aggregate Annual Debt Service for such Cross-Collateralized Mortgage
Loan and all other Mortgage Loans with which it is cross-collateralized.
9. "APPRAISED VALUE" means, for any Mortgaged Property, the appraiser's
adjusted value as stated in the most recent third party appraisal, available to
the Depositor. No representation is made that any such value would approximate
either the value that would be determined in a current appraisal of the related
Mortgaged Property or the amount that would be realized upon a sale.
10. "CUT-OFF DATE LOAN-TO-VALUE RATIO," "CUT-OFF DATE LTV RATIO,"
"LOAN-TO-VALUE RATIO" or "LTV" means, with respect to any Mortgage Loan, the
Cut-off Date Balance of such Mortgage Loan divided by the Appraised Value of the
related Mortgaged Property.
11. "NET RENTABLE AREA" or "PROPERTY SIZE (SF)" or "SF" means, in the
case of a Mortgaged Property operated as a retail center, office or medical
office complex, industrial/warehouse facility, self-storage facility or
combination retail office facility, the square footage of the net rentable or
leasable area.
12. "TOTAL UNITS" means: (i) in the case of a Mortgaged Property
operated as multifamily housing, the number of apartments, regardless of the
size of or number of rooms in such apartment; (ii) in the case of a Mortgaged
Property operated as a self-storage facility, the number of self-storage units;
(iii) in the case of a Mortgaged Property operated as a nursing home, the number
of beds; (iv) in the case of a Mortgaged Property constituting a mobile home
park, the number of pads; and (v) in the case of a Mortgaged Property operated
as a hotel, the number of guest rooms.
13. "OCCUPANCY %" means the percentage of Net Rentable Area or Total
Units, as the case may be, of the Mortgaged Property that was occupied as of a
specified date (identified on this Annex A as the "Occupancy as of Date"), as
specified by the borrower or as derived from the Mortgaged Property's rent rolls
or as determined by a site inspection of the Mortgaged Property. Information in
this Annex A concerning the "Largest Tenant" and "Second Largest Tenant" is
presented as of the same date as of which the Occupancy % is specified.
14. "BALLOON AMOUNT" means, with respect to any Balloon Loan, the
principal amount that will be due at maturity for such Balloon Loan based on the
Maturity Assumptions and a 0% CPR.
15. "LTV AT BALLOON" or "Balloon Loan-to-Value Ratio" means, with
respect to any Balloon Loan, the Balloon Amount for such Balloon Loan divided by
the Appraised Value of the related Mortgaged Property.
16. "CURRENT MORTGAGE RATE" means, with respect to any Mortgage Loan,
the Mortgage Rate in effect of the Cut-off Date.
<PAGE>
-9-
17. "CURRENT REPLACEMENT RESERVES" means, for any Mortgaged Property,
reserves escrowed for needed repairs and remediation and, except in the case of
the GMACCM Mortgage Loans, abatement of environmental issues as set forth in
engineering and environmental reports. Current Replacement Reserves are reported
as of a date within 90 days prior to the Cut-off Date.
18. "CURRENT OTHER RESERVES" means, for any Mortgaged Property,
reserves (including cash equivalents) escrowed for payment of future leasing
commissions, tenant improvement expenses, capital expenditures and, in the case
of the GMACCM Mortgage Loans, abatement of environmental issues, in each case if
any. Current Other Reserves are reported as of a date within 90 days prior to
the Cut-off Date.
<PAGE>
-10-
19. PAYMENT LOAN TERM NOTES. The indicated Mortgage Loans have the
following payment terms:
<TABLE>
ADJUSTABLE RATE TERMS
<CAPTION>
MORTGAGE
CUT-OFF MAXIMUM MINIMUM RATE
LOAN CONTROL DATE GROSS MORTGAGE MORTGAGE ADJUSTMENT
COUNTER NUMBER BALANCE PROPERTY NAME INDEX MARGIN RATE RATE DATE
- -----------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 CONT1010 $13,176,907 Saddleback Apartments LIBOR-- 2.75% 11.75% 6.00% 04-01-97
6 month
2 CONT1020 7,400,272 Sierra Creek Apartments LIBOR-- 2.75 11.75 6.00 04-01-97
6 month
3 CONT1080 4,642,872 Mill Park Apartments LIBOR-- 2.75 11.75 6.00 04-01-97
6 month
4 CONT1790 2,840,738 Heather Glen Care Center LIBOR--
6 month 3.00 12.75 8.50 04-01-97
5 CONT1150 2,626,065 Misty Ridge Apartments LIBOR-- 2.75 11.75 6.00 04-01-97
6 month
6 CONT1320 1,764,531 Plantation House LIBOR-- 2.75 11.75 6.00 04-01-97
Apartments 6 month
7 CONT1930 1,023,762 15-17 Microlab Road LIBOR-- 3.15 12.00 9.00 04-01-97
----------- ---------------------
6 month
Total or Wtd. Avg. $33,475,147 2.7834% 11.843% 6.304%
</TABLE>
<PAGE>
-11-
LOAN COUNTERS 9 AND 10, 500 ENTERPRISE DRIVE AND TECH CENTER
Multiple Mortgaged Properties: The two Mortgaged Properties secure one Mortgage
Note with an original balance of $18,731,250. The loan terms are reported
separately with respect to each Mortgaged Property, allocated generally based
upon each property's value.
LOAN COUNTER 11, DADELAND
Interest-Only, Then Amortizing Payments: The Mortgage Loan requires Monthly
Payments of interest only in the amount of $129,544.26 from September 1, 1996
through August 1, 1997. During this period, the Mortgage Rate is 9.6555% per
annum. Commencing on September 1, 1997 and through maturity, Monthly Payments of
principal and interest in the amount of $129,544.26 are required based on a
Mortgage Rate of 9.00% per annum.
LOAN COUNTER 14, 3RD & 4TH BATTERY
Interest-Only, Then Amortizing Payments: The Mortgage Loan requires Monthly
Payments of interest only in the amount of $102,223.74 from August 1, 1996
through July 1, 1997. During this period, the payment Mortgage Rate is 9.9065%
per annum. Commencing on August 1, 1997 and through maturity, Monthly Payments
of principal and interest in the amount of $102,223.74 are required based on a
Mortgage Rate of 8.80% per annum.
LOAN COUNTER 15, CENTRA 600
Interest-Only, Then Amortizing Payments: The Mortgage Loan requires Monthly
Payments of interest only in the amount of $97,239.70 from June 1, 1996 through
May 1, 1997. During this period, the Mortgage Rate is 9.8250% per annum.
Commencing on June 1, 1997 and through maturity, Monthly Payments of principal
and interest in the amount of $97,239.70 are required based on a Mortgage Rate
of 8.70% per annum.
LOAN COUNTER 16, LANTANA CASCADE
Interest-Only, Then Amortizing Payments: The Mortgage Loan requires Monthly
Payments of interest only in the amount of $68,559.66 from January 1, 1996
through December 1, 1997. During this period, the Mortgage Rate is 8.16% per
annum (based upon actual days over a 360-day year interest calculation method).
Commencing on January 1, 1998 and through maturity, Monthly Payments of
principal and interest in the amount of $76,170.06 are required based on a
Mortgage Rate of 8.16% per annum (based upon actual days over a 360-day year
interest calculation period).
Extension Option: The borrower has the option to extend the Mortgage Loan an
additional 2 years, or to November 22, 2002, provided the borrower has satisfied
the following conditions: a) borrower provides written notice ("Extension
Notice") of intent to extend no less than 60 days prior to maturity, b) borrower
is not, at the time of the delivery of the Extension Notice, or at any time
thereafter prior to the maturity date, in default, c) borrower causes the title
insurer to endorse the Title Insurance Policy with such endorsements as lender
may reasonably require to assure lender that the extension does not affect the
lien priority, d) borrower executes and delivers to lender an extension and
modification agreement memorializing the extension of the maturity date and the
new loan terms and that the document be recorded, e) borrower pays all costs and
expenses incurred by lender in connection with such extension and modification,
and f) the borrower agrees that the extension terms will require Monthly
Payments of principal and interest based on a Mortgage Rate equal to the greater
of a) the sum of a six-month LIBO rate as reported in the Money Rates section of
The Wall Street Journal 15 business days prior to such adjustment date plus a 3%
margin or b) 8.16% per annum. This rate is to become effective 1 day after the
initial maturity date of November 22, 2000, and to be adjusted on June 1, 2001
and each 6 month period thereafter. The monthly principal and interest payments
shall be adjusted each time the interest rate is adjusted based upon a 28-year
amortization schedule from the time of extension. During the extension period,
the loan may be prepaid at par.
LOAN COUNTER 17, 1001 CONNECTICUT AVENUE
Interest-Only, Then Amortizing Payments: The Mortgage Loan requires Monthly
Payments of interest only in the amount of $76,702.69 from October 1, 1996
through September 1, 1997. During this period, the Mortgage Rate is 10.005% per
annum. Commencing on October 1, 1997 and through maturity, Monthly Payments of
principal and interest in the amount of $76,702.69 are required based on a
Mortgage Rate of 8.92% per annum.
<PAGE>
-12-
Extension Option: The borrower has the option to extend the Mortgage Loan an
additional 5 years, or to December 31, 2005. The extension terms require Monthly
Payments of principal and interest based on a Mortgage Rate equal to 240 basis
points over the bid side yield of the 5-year U.S. Treasury Securities determined
as of the close of business on the last business day immediately preceding the
initial maturity date of December 31, 2000. The payments are to be determined
using an initial amortization period of 249 months.
The loan has a prepayment penalty equal to the greater of 1% or yield
maintenance with no open period during the extension period (Note: The loan has
a 60-day open window prior to the initial maturity date of December 31, 2000).
LOAN COUNTER 20, WESTWIND/OAK RIDGE
Interest-Only, Then Amortizing Payments: The Mortgage Loan requires Monthly
Payments of interest only in the amount of $62,739.07 from September 1, 1996
through August 1, 1997. During this period, the Mortgage Rate is 9.9883% per
annum. Commencing on September 1, 1997 and through maturity, Monthly Payments of
principal and interest in the amount of $62,739.07 are required based on a
Mortgage Rate of 8.90% per annum.
LOAN COUNTER 40, 1634 EYE STREET
Interest-Only, Then Amortizing Payments: The Mortgage Loan requires Monthly
Payments of interest only in the amount of $42,200.64 from October 1, 1996
through September 1, 1997. During this period, the Mortgage Rate is 9.483% per
annum. Commencing on October 1, 1997 and through maturity, Monthly Payments of
principal and interest in the amount of $42,200.64 are required based on a
Mortgage Rate of 8.80% per annum.
Extension Option: The borrower has the option to extend the loan an additional 5
years, or to December 31, 2005. The extension terms require Monthly Payments of
principal and interest based on a Mortgage Rate equal to 240 basis points over
the bid side yield of the 5-year U.S. Treasury Securities determined as of the
close of business on the last business day immediately preceding the initial
maturity date of December 31, 2000. The payments are to be determined using an
initial amortization period of 309 months. The loan has a prepayment penalty
equal to the greater of 1% or the result of a yield maintenance formula with no
open period during such extension period. The loan has a 60-day open window
prior to the initial maturity date of December 31, 2000.
LOAN COUNTER 42, GEORGETOWNE APARTMENTS
Interest-Only, Then Amortizing Payments: The Mortgage Loan requires Monthly
Payments of interest only in the amount of $41,417.24 from February 1, 1996
through January 1, 1997. During this period, the Mortgage Rate is 9.558% per
annum. Commencing on February 1, 1997 and through maturity, Monthly Payments of
principal and interest in the amount of $41,417.24 are required based on a
Mortgage Rate of 8.37% per annum.
LOAN COUNTER 47, PLAZA DEL MAR
Interest-Only, Then Amortizing Payments: The Mortgage Loan requires Monthly
Payments of interest only in the amount of $40,455.12 from June 1, 1996 through
May 1, 1997. During this period, the payment interest rate is 10.6825% per
annum. Commencing on June 1, 1997 and through maturity, Monthly Payments of
principal and interest in the amount of $40,455.12 are required based on a
Mortgage Rate of 8.85% per annum.
LOAN COUNTER 62, PARKWAY MARKET CENTER
Interest-Only, Then Amortizing Payments: The Mortgage Loan requires Monthly
Payments of interest only in the amount of $28,840.56 from October 1, 1996
through March 1, 1997. During this period, the Mortgage Rate is 10.103254% per
annum. Commencing on April 1, 1997 and through maturity, Monthly Payments of
principal and interest in the amount of $28,840.56 are required based on a
Mortgage Rate of 9.04% per annum.
<PAGE>
-13-
U-HAUL LOANS
Interest-Only Plus Cash Flow Payments: For the purposes of this Annex A, the
payment amount is based upon a 25-year amortization schedule. The debt service
is equal to monthly payments of interest plus quarterly payments of principal
based on Net Cash Flow. For the first seven years of each Cash-Flow Amortization
Loan, principal payments are due on the last day of each calendar quarter in an
amount equal to 50% of Net Cash Flow from the related Mortgaged Property for
such calendar quarter. For the remaining three loan years, principal payments
are due on the last day of each calendar quarter in an amount equal to 100% of
the Net Cash Flow from the related Mortgaged Property for such calendar quarter.
(See table below for loan payment dates.) Based upon principal reductions to
date, the principal has been reduced more rapidly than a 25-year amortization
schedule would have indicated.
<TABLE>
<CAPTION>
1ST PRINCIPAL 1ST PRINCIPAL
LOAN PROPERTY ORIGINATION 1ST INTEREST DUE DATE END OF START OF DUE DATE LOAN
COUNTER LOCATION DATE DUE DATE (50% NCF) 7 YEARS REMAIN 3 YRS (100% NCF) MATURITY
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
87 Sterling 12/01/93 01/31/94 03/31/94 12/31/2000 01/01/2001 03/31/2001 12/01/2003
97 Richmond 12/01/93 01/31/94 03/31/94 12/31/2000 01/01/2001 03/31/2001 12/01/2003
101 Odenton 09/01/93 10/31/93 12/31/93 09/30/2000 10/01/2000 12/31/2000 09/01/2003
109 Oaklawn Blvd 09/01/94 10/31/94 12/31/94 09/30/2001 10/01/2001 12/31/2001 09/01/2004
111 N Richland 12/01/93 01/31/94 03/31/94 12/31/2000 01/01/2001 03/31/2001 12/01/2003
119 Shreveport 04/01/94 05/31/94 06/30/94 04/30/2001 05/01/2001 06/30/2001* 04/01/2004
123 Marrero 04/01/94 05/31/94 06/30/94 04/30/2001 05/01/2001 06/30/2001* 04/01/2004
125 Myrtle Beach 09/01/93 10/31/93 12/31/93 09/30/2000 10/01/2000 12/31/2000 09/01/2003
126 Jefferson 09/01/94 10/31/94 12/31/94 09/30/2001 10/01/2001 12/31/2001 09/01/2004
* Principal payment is a blend of 50% and 100% Net Cash Flow because of an anniversary date in the middle of a calendar quarter.
</TABLE>
<PAGE>
-14-
ANNEX A
ANNEX A FOOTNOTES
1. The loans are cross collateralized.
2. The Hobbs Plaza loan is cross collateralized with the Broadmoor
Shopping Center loan, but the Broadmoor Shopping Center loan is not
cross collateralized with the Hobbs Plaza loan.
3. The properties are secured by the same mortgage note. The replacement
reserve information set forth for 500 Enterprise Drive represents the
replacement reserve balance for both properties. The loan currently
requires replacement reserve payments equal to 50% of the properties'
cash flow after debt service until the reserve account is fully funded
at $500,000 and tenant improvement/leasing commission reserve payments
of 100% of cash flow after debt service until the reserve account
equals $10/sf on space rolling within the ensuing 24 months (the
reserve will begin funding if at any point in time the total sf of
vacancies and leases rolling in the next 24 months is greater than 15%
of the total square footage of the properties combined).
4. The Current Replacement Reserve balance of $400,000 and the Current
Other Reserves balance of $200,000 are letters of credit assigned to
the lender.
5. The Current Replacement Reserve balance of $280,000 includes a $250,000
letter of credit assigned to the lender.
6. The Current Replacement Reserve balance and payment information
represent the balance and payment for both the Replacement Reserve and
the Current Other Reserves (tenant improvement/leasing commission
reserves).
7. The prepayment penalty for years 16-25 is 1%, with a 90 day open period
prior to maturity.
8. The prepayment penalty for years 16-20 is 1%, with a 180 day open
period prior to maturity.
9. The prepayment penalty for the 16th loan year is the greater of yield
maintenance or 1%, with a 180 day open period prior to maturity.
10. YM - Treasury-Based Yield Maintenance Plus 50 bp.
11. YM - Treasury-Based Yield Maintenance Plus 200 bp.
PREPAYMENT PENALTY DEFINITIONS
o LO - Lockout
o YM - Treasury-Based Yield Maintenance
o 1%+YM - Treasury-Based Yield Maintenance Plus 1% of Outstanding
Principal Balance
o YM/1%OPB - Greater of Treasury-Based Yield Maintenance or 1% of
Original Principal Balance
o YM/3%OPB - Greater of Treasury-Based Yield Maintenance or 3% of
Original Principal Balance
o YM/1%UPB - Greater of Treasury-Based Yield Maintenance or 1% of
Unpaid Principal Balance
o YM/1%PPB - Greater of Treasury-Based Yield Maintenance or 1% of
Prepaid Principal Balance
(Loans may be prepaid in part or in whole)
o YM(LIB) - LIBOR-Based Yield Maintenance of Outstanding Principal
Balance
o YM(LIB+1%) - LIBOR-Based Yield Maintenance Plus 1% of Outstanding
Principal Balance
o YM(LIB+2%) - LIBOR-Based Yield Maintenance Plus 2% of Outstanding
Principal Balance
o YM(LIB+3%) - LIBOR-Based Yield Maintenance Plus 3% of Outstanding
Principal Balance
o YM(LIB+4%) - LIBOR-Based Yield Maintenance Plus 4% of Outstanding
Principal Balance
o YM(LIB+5%) - LIBOR-Based Yield Maintenance Plus 5% of Outstanding
Principal Balance
o [YM/5% UBP - Lesser of Treasury Based Yield Maintenance or 5% of
Unpaid Principal Balance.
o [YM/3% UBP - Lesser of Treasury Based Yield Maintenance or 3% of
Unpaid Principal Balance.
o [YM/1% UBP - Lesser of Treasury Based Yield Maintenance or 1% of
Unpaid Principal Balance.
<PAGE>
-15-
MORTGAGE LOAN SCHEDULE
<PAGE>
-16-
<TABLE>
DISTRIBUTION OF DEBT SERVICE COVERAGE RATIOS
MORTGAGE POOL
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
RANGE OF NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
DEBT SERVICE MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
COVERAGE RATIOS LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1.05x - 1.10x 4 1.74% $ 7,953,251 1.07x 8.177% 82%
1.11 - 1.20 3 5.57 25,459,169 1.19 8.471 68
1.21 - 1.30 21 16.07 73,419,268 1.26 9.350 70
1.31 - 1.40 23 13.79 63,004,326 1.36 9.107 71
1.41 - 1.50 24 13.88 63,410,219 1.44 9.212 69
1.51 - 1.60 17 15.20 69,414,637 1.56 9.272 65
1.61 - 1.70 17 17.60 80,382,738 1.66 9.210 65
1.71 - 1.80 12 9.39 42,886,032 1.76 9.381 65
1.81 - 1.90 5 1.82 8,333,708 1.85 9.488 60
1.91 - 2.00 4 1.67 7,635,399 1.95 8.800 59
2.01 - 2.25 3 1.37 6,273,981 2.13 9.740 53
2.26 - 2.50 1 0.62 2,840,738 2.27 8.875 75
2.51 - 3.00 3 1.27 5,808,886 2.64 10.753 36
--------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67%
=================== ============ ==== ====== ==
</TABLE>
<TABLE>
DISTRIBUTION OF DEBT SERVICE COVERAGE RATIOS
LOAN GROUP 1
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
RANGE OF NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
DEBT SERVICE MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
COVERAGE RATIOS LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1.41x - 1.50x 2 8.33% $ 2,788,293 1.47x 8.703% 70%
1.51 - 1.60 2 29.95 10,026,336 1.59 8.531 66
1.61 - 1.70 2 53.23 17,819,780 1.67 8.531 59
2.26 - 2.50 1 8.49 2,840,738 2.27 8.875 75
------------------------------------------------------------------------------------
Total/Weighted Average 7 100.00% $33,475,147 1.68x 8.575% 63%
================= ========================= ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF DEBT SERVICE COVERAGE RATIOS
LOAN GROUP 2
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
RANGE OF NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
DEBT SERVICE MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
COVERAGE RATIOS LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1.05x - 1.10x 4 1.88% $ 7,953,251 1.07x 8.177% 82%
1.11 - 1.20 3 6.01 25,459,169 1.19 8.471 68
1.21 - 1.30 21 17.34 73,419,268 1.26 9.350 70
1.31 - 1.40 23 14.88 63,004,326 1.36 9.107 71
1.41 - 1.50 22 14.32 60,62l,926 1.45 9.236 69
1.51 - 1.60 15 14.03 59,388,300 1.55 9.397 64
1.61 - 1.70 15 14.78 62,562,958 1.66 9.403 66
1.71 - 1.80 12 10.13 42,886,032 1.76 9.381 65
1.81 - 1.90 5 1.97 8,333,708 1.85 9.488 60
1.91 - 2.00 4 1.80 7,635,399 1.95 8.800 59
2.01 - 2.25 3 1.48 6,273,981 2.13 9.740 53
2.51 - 3.00 3 1.37 5,808,886 2.64 10.753 36
--------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67%
=================== ========================== ====== ==
</TABLE>
<TABLE>
DISTRIBUTION OF CUT-OFF DATE LOAN-TO-VALUE RATIOS
MORTGAGE POOL
<PAGE>
-17-
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
RANGE OF NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
CUT-OFF DATE MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
LTV RATIOS LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
35% - 50% 6 1.84% $ 8,385,471 2.44x 10.080% 38%
51 - 60 23 17.32 79,144,317 1.68 9.625 57
61 - 65 20 12.55 57,320,996 1.60 9.335 64
66 - 70 35 37.20 169,918,819 1.43 9.274 68
71 - 75 44 25.47 116,334,447 1.45 8.886 73
76 - 80 5 2.99 13,671,905 1.45 8.507 78
81 - 85 3 2.48 11,339,613 1.16 8.184 83
86 - 90 1 0.15 706,783 1.21 9.000 89
--------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67%
=================== ========================== ====== ==
</TABLE>
<PAGE>
-18-
<TABLE>
DISTRIBUTION OF CUT-OFF DATE LOAN-TO-VALUE RATIOS
LOAN GROUP 1
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
RANGE OF NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
CUT-OFF DATE MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
LTV RATIOS LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
51% - 60% 1 39.36% $13,176,907 1.66x 8.531% 58%
61 - 65 2 35.98 12,043,144 1.64 8.531 64
66 - 70 2 10.90 3,649,827 1.54 8.663 67
71 - 75 2 13.76 4,605,269 1.96 8.743 73
------------------------------------------------------------------------------------
Total/Weighted Average 7 100.00% $33,475,147 1.68x 8.575% 63%
================= ========================= ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF CUT-OFF DATE LOAN-TO-VALUE RATIOS
LOAN GROUP 2
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
RANGE OF NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
CUT-OFF DATE MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
LTV RATIOS LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
35% - 50% 6 1.98% $8,385,471 2.44x 10.080% 38%
51 - 60 22 15.58 65,967,409 1.68 9.844 57
61 - 65 18 10.70 45,277,852 1.59 9.549 64
66 - 70 33 39.27 166,268,992 1.43 9.287 68
71 - 75 42 26.39 111,729,178 1.43 8.892 73
76 - 80 5 3.23 13,671,905 1.45 8.507 78
81 - 85 3 2.68 11,339,613 1.16 8.184 83
86 - 90 1 0.17 706,783 1.21 9.000 89
--------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67%
=================== ========================== ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF BALLOON LOAN-TO-VALUE RATIOS
MORTGAGE POOL
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
RANGE OF NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
BALLOON MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
LOAN-TO-VALUE RATIOS LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Not Applicable 6 2.49% $ 11,380,317 1.91x 10.187% 51%
27% - 50% 27 11.87 54,231,879 1.75 9.585 57
51 - 60 51 38.92 177,784,409 1.55 9.364 65
61 - 65 33 32.81 149,877,211 1.38 8.942 71
66 - 70 16 9.24 42,211,232 1.43 9.041 73
71 - 75 3 4.52 20,630,520 1.48 8.612 76
76 - 80 1 0.15 706,783 1.21 9.000 89
--------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67%
=================== ============ ==== ====== ==
</TABLE>
<TABLE>
DISTRIBUTION OF BALLOON LOAN-TO-VALUE RATIOS
LOAN GROUP 1
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
RANGE OF NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
BALLOON MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
LOAN-TO-VALUE RATIOS LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
49% - 50% 1 3.06% $ 1,023,762 1.49x 9.000% 68%
51 - 60 3 75.34 25,220,051 1.65 8.531 61
61 - 65 2 13.12 4,390,596 1.51 8.531 69
66 - 70 1 8.49 2,840,738 2.27 8.875 75
------------------------------------------------------------------------------------
<PAGE>
-19-
<S> <C> <C> <C> <C> <C> <C>
Total 7 100.00% $33,475,147 1.68x 8.575% 63%
================= ========================= ===== ==
</TABLE>
<PAGE>
-20-
<TABLE>
DISTRIBUTION OF BALLOON LOAN-TO-VALUE RATIOS
LOAN GROUP 2
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
RANGE OF NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
BALLOON MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
LOAN-TO-VALUE RATIOS LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Not Applicable 6 2.69% $ 11,380,317 1.91x 10.187% 51%
27% - 50% 26 12.57 53,208,117 1.75 9.596 57
51 - 60 48 36.04 152,564,358 1.53 9.502 66
61 - 65 31 34.37 145,486,615 1.38 8.954 71
66 - 70 15 9.30 39,370,494 1.37 9.053 73
71 - 75 3 4.87 20,630,520 1.48 8.612 76
76 - 80 1 0.17 706,783 1.21 9.000 89
--------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67%
=================== ========================== ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF PROPERTY TYPES
MORTGAGE POOL
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AGGREGATE AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE CUT-OFF DATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE PRINCIPAL COVERAGE MORTGAGE CUT-OFF DATE
PROPERTY TYPE LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Multifamily 41 24.82% $113,396,460 1.45x 8.558% 70%
Office 18 24.38 111,392,577 1.56 9.451 67
Self-Storage/Mini-Storage 47 16.41 74,954,497 1.53 9.434 65
Retail 12 13.85 63,287,887 1.58 9.794 63
Mobile Home Park 5 12.61 57,599,584 1.27 8.597 70
Lodging 3 3.68 16,831,882 1.76 9.741 64
Nursing Home 7 3.08 14,059,990 1.99 10.117 63
Industrial/Warehouse 3 0.81 3,701,102 1.42 9.674 68
Restaurant 1 0.35 1,598,372 1.25 11.950 52
--------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67%
=================== ========================== ====== ==
</TABLE>
<TABLE>
DISTRIBUTION OF PROPERTY TYPES
LOAN GROUP 1
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
PROPERTY TYPE LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Multifamily 5 88.46% $29,610,647 1.63x 8.531% 62%
Nursing Home 1 8.49 2,840,738 2.27 8.875 75
Industrial/Warehouse 1 3.06 1,023,762 1.49 9.000 68
------------------------------------------------------------------------------------
Total/Weighted Average 7 100.00% $33,475,147 1.68x 8.575% 63%
================= ========================= ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF PROPERTY TYPES
LOAN GROUP 2
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
PROPERTY TYPE LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Office 18 26.31% $111,392,577 1.56x 9.451% 67%
Multifamily 36 19.79 83,785,813 1.39 8.567 73
Self-Storage/Mini-Storage 47 17.71 74,954,497 1.53 9.434 65
Retail 12 14.95 63,287,887 1.58 9.794 63
<PAGE>
-21-
<S> <C> <C> <C> <C> <C> <C>
Mobile Home Park 5 13.61 57,599,584 1.27 8.597 70
Lodging 3 3.98 16,831,882 1.76 9.741 64
Nursing Home 6 2.65 11,219,252 1.92 10.432 60
Industrial/Warehouse 2 0.63 2,677,340 1.39 9.931 68
Restaurant 1 0.38 1,598,372 1.25 11.950 52
--------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67%
=================== ========================== ====== ==
</TABLE>
<PAGE>
-22-
<TABLE>
DISTRIBUTION OF PROPERTY STATES
MORTGAGE POOL
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
PROPERTY STATE LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
California 22 17.17% $78,452,484 1.49x 9.486% 67%
Florida 10 10.98 50,179,408 1.53 9.013 69
Illinois 3 8.57 39,149,837 1.22 8.592 68
Texas 20 8.16 37,279,516 1.56 9.021 66
New York 18 8.05 36,773,610 1.48 9.039 71
Connecticut 3 5.51 25,160,62l 1.55 8.750 72
Arizona 6 4.95 22,599,189 1.65 9.026 63
Tennessee 2 4.52 20,659,258 1.60 9.523 62
Colorado 9 4.47 20,402,019 1.52 9.195 69
Virginia 7 3.63 16,600,764 1.71 9.489 59
District of Columbia 2 3.18 14,540,000 1.74 9.813 69
Washington 1 2.71 12,382,600 1.59 9.907 57
Georgia 3 2.53 11,575,718 1.15 8.656 80
Louisiana 4 2.01 9,187,690 1.57 8.853 70
Wisconsin 1 1.65 7,537,500 1.28 9.988 72
New Jersey 4 1.61 7,370,838 1.63 8.877 64
Massachusetts 5 1.56 7,147,840 1.62 9.500 67
New Mexico 3 1.33 6,098,517 1.81 10.750 51
Pennsylvania 2 1.14 5,216,276 1.25 8.199 77
Nebraska 1 1.14 5,200,000 1.51 9.558 65
Wyoming 1 1.09 4,991,997 1.41 9.670 65
North Carolina 3 1.02 4,640,769 1.50 10.754 57
Michigan 1 0.71 3,254,885 2.22 9.560 56
Delaware 1 0.55 2,515,311 1.51 8.000 71
Kansas 1 0.50 2,289,155 1.30 9.875 72
Minnesota 1 0.45 2,040,334 1.79 9.875 55
Idaho 1 0.42 1,935,095 1.52 9.490 57
Maryland 1 0.27 1,243,224 1.63 9.000 54
South Carolina 1 0.09 397,896 1.88 9.000 39
--------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67%
=================== ========================== ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF PROPERTY STATES
LOAN GROUP 1
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
PROPERTY STATE LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Texas 4 49.09% $16,433,740 1.60x 8.531% 65%
Arizona 2 47.85 16,017,645 1.77 8.592 61
New Jersey 1 3.06 1,023,762 1.49 9.000 68
------------------------------------------------------------------------------------
Total/Weighted Average 7 100.00% $33,475,147 1.68x 8.575% 63%
================= ========================= ===== ==
</TABLE>
<PAGE>
-23-
<TABLE>
DISTRIBUTION OF PROPERTY STATES
LOAN GROUP 2
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
PROPERTY STATE LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
California 22 18.53% $78,452,484 1.49x 9.486% 67%
Florida 10 11.85 50,179,408 1.53 9.013 69
Illinois 3 9.25 39,149,837 1.22 8.592 68
New York 18 8.69 36,773,610 1.48 9.039 71
Connecticut 3 5.94 25,160,621 1.55 8.750 72
Texas 16 4.92 20,845,776 1.53 9.406 66
Tennessee 2 4.88 20,659,258 1.60 9.523 62
Colorado 9 4.82 20,402,019 1.52 9.195 69
Virginia 7 3.92 16,600,764 1.71 9.489 59
District of Columbia 2 3.43 14,540,000 1.74 9.813 69
Washington 1 2.92 12,382,600 1.59 9.907 57
Georgia 3 2.73 11,575,718 1.15 8.656 80
Louisiana 4 2.17 9,187,690 1.57 8.853 70
Wisconsin 1 1.78 7,537,500 1.28 9.988 72
Massachusetts 5 1.69 7,147,840 1.62 9.500 67
Arizona 4 1.55 6,581,544 1.37 10.081 67
New Jersey 3 1.50 6,347,076 1.65 8.857 64
New Mexico 3 1.44 6,098,517 1.81 10.750 51
Pennsylvania 2 1.23 5,216,276 1.25 8.199 77
Nebraska 1 1.23 5,200,000 1.51 9.558 65
Wyoming 1 1.18 4,991,997 1.41 9.670 65
North Carolina 3 1.10 4,640,769 1.51 10.754 57
Michigan 1 0.77 3,254,885 2.22 9.560 56
Delaware 1 0.59 2,515,311 1.51 8.000 71
Kansas 1 0.54 2,289,155 1.30 9.875 72
Minnesota 1 0.48 2,040,334 1.79 9.875 55
Idaho 1 0.46 1,935,095 1.52 9.490 57
Maryland 1 0.29 1,243,224 1.63 9.000 54
South Carolina 1 0.09 397,896 1.88 9.000 39
--------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67%
=================== ========================== ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF CUT-OFF DATE BALANCES
MORTGAGE POOL
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
CUT-OFF DATE MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
BALANCES LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
----------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C>
$ 137,790 - $ 499,999 7 0.53% $ 2,409,938 1.36x 8.301% 66%
500,000 - 999,999 17 2.92 13,327,582 1.59 9.358 64
1,000,000 - 1,999,999 46 14.86 67,898,854 1.54 9.276 66
2,000,000 - 2,999,999 19 10.14 46,321,404 1.55 9.098 69
3,000,000 - 3,999,999 12 9.30 42,501,67l 1.68 9.556 63
4,000,000 - 4,999,999 10 9.71 44,341,625 1.40 9.134 69
5,000,000 - 5,999,999 6 6.94 31,683,485 1.40 9.250 70
6,000,000 - 6,999,999 5 7.04 32,150,453 1.53 9.089 72
7,000,000 - 7,999,999 3 4.84 22,110,502 1.46 8.856 70
8,000,000 - 8,999,999 2 3.69 16,862,341 1.55 9.791 67
9,000,000 - 9,999,999 2 4.19 19,150,000 1.59 9.046 72
10,000,000 - 11,999,999 1 2.60 11,876,625 1.65 9.825 68
12,000,000 - 13,999,999 4 11.10 50,729,161 1.48 8.947 63
14,000,000 - 16,999,999 2 6.89 31,487,890 1.62 9.702 63
20,000,000 - 24,999,999 1 5.25 23,970,819 1.19 8.500 68
--------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67%
=================== ========================== ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF CUT-OFF DATE BALANCES
<PAGE>
-24-
LOAN GROUP 1
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
CUT-OFF DATE MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
BALANCES LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
----------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C>
$ 1,000,000 - $ 1,999,999 2 8.33% $ 2,788,293 1.47x 8.703% 70%
2,000,000 - 2,999,999 2 16.33 5,466,802 1.93 8.710 71
4,000,000 - 4,999,999 1 13.87 4,642,872 1.69 8.531 63
7,000,000 - 7,999,999 1 22.11 7,400,272 1.60 8.531 65
12,000,000 - 13,999,999 1 39.36 13,176,907 1.66 8.531 58
------------------------------------------------------------------------------------
Total/Weighted Average 7 100.00% $33,475,147 1.68x 8.575% 63%
================= ========================= ===== ==
</TABLE>
<PAGE>
-25-
<TABLE>
DISTRIBUTION OF CUT-OFF DATE BALANCES
LOAN GROUP 2
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
CUT-OFF DATE MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
BALANCES LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
----------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C>
$ 137,790 - $ 499,999 7 0.57% $ 2,409,938 1.36x 8.301% 66%
500,000 - 999,999 17 3.15 13,327,582 1.59 9.358 64
1,000,000 - 1,999,999 44 15.38 65,110,560 1.55 9.300 66
2,000,000 - 2,999,999 17 9.65 40,854,601 1.50 9.150 68
3,000,000 - 3,999,999 12 10.04 42,501,671 1.68 9.556 63
4,000,000 - 4,999,999 9 9.38 39,698,753 1.36 9.205 70
5,000,000 - 5,999,999 6 7.48 31,683,485 1.40 9.250 70
6,000,000 - 6,999,999 5 7.59 32,150,453 1.53 9.089 72
7,000,000 - 7,999,999 2 3.47 14,710,230 1.39 9.019 73
8,000,000 - 8,999,999 2 3.98 16,862,341 1.55 9.791 67
9,000,000 - 9,999,999 2 4.52 19,150,000 1.59 9.046 72
10,000,000 - 11,999,999 1 2.81 11,876,625 1.65 9.825 68
12,000,000 - 13,999,999 3 8.87 37,552,254 1.42 9.093 65
14,000,000 - 16,999,999 2 7.44 31,487,890 1.62 9.702 63
20,000,000 - 24,999,999 1 5.66 23,970,819 1.19 8.500 68
--------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67%
=================== ========================== ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF YEAR OF ORIGINATION
MORTGAGE POOL
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
YEAR OF ORIGINATION LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1993 5 1.24% $ 5,642,654 1.70x 9.000% 55%
1994 13 8.91 40,684,426 1.64 8.972 62
1995 29 17.99 82,180,604 1.47 8.759 70
1996 90 71.87 328,314,666 1.51 9.353 67
--------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67%
=================== ========================== ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF YEAR OF ORIGINATION
LOAN GROUP 1
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
YEAR OF ORIGINATION LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1994 5 88.46% $29,6l0,647 1.63x 8.531% 62%
1996 2 11.54 3,864,500 2.07 8.908 73
------------------------------------------------------------------------------------
Total/Weighted Average 7 100.00% $33,475,147 1.68x 8.575% 63%
================= ========================= ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF YEAR OF ORIGINATION
LOAN GROUP 2
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
YEAR OF ORIGINATION LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1993 5 1.33% $ 5,642,654 1.70x 9.000% 55%
1994 8 2.62 11,073,779 1.66 10.152 61
<PAGE>
-26-
<S> <C> <C> <C> <C> <C> <C> <C>
1995 29 19.41 82,180,604 1.47 8.759 70
1996 88 76.64 324,450,167 1.50 9.358 67
--------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67%
=================== ========================== ====== ==
</TABLE>
<PAGE>
-27-
<TABLE>
DISTRIBUTION OF CURRENT MORTGAGE RATES
MORTGAGE POOL
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
RANGE OF CURRENT MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
MORTGAGE RATES LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
7.501% - 7.750% 1 0.96% $ 4,371,318 1.79x 7.750% 72%
7.751 - 8.000 17 5.50 25,135,809 1.41 8.000 73
8.001 - 8.250 7 6.03 27,566,818 1.32 8.181 77
8.251 - 8.500 3 6.48 29,623,316 1.32 8.488 67
8.501 - 8.750 14 16.72 76,387,996 1.53 8.639 67
8.751 - 9.000 27 12.85 58,705,070 1.51 8.940 68
9.001 - 9.250 6 3.61 16,480,660 1.53 9.120 70
9.251 - 9.500 11 6.64 30,329,576 1.47 9.408 67
9.501 - 9.750 14 15.40 70,366,301 1.52 9.683 65
9.751 - 10.000 16 15.04 68,709,337 1.57 9.911 64
10.001 - 10.250 13 6.42 29,336,993 1.60 10.097 67
10.251 - 10.500 1 0.72 3,271,473 1.26 10.500 66
10.501 - 10.750 5 2.45 11,172,431 1.68 10.717 58
10.751 - 11.950 2 1.17 5,365,254 2.24 11.459 40
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67%
=================== ========================== ====== ==
</TABLE>
<TABLE>
DISTRIBUTION OF CURRENT MORTGAGE RATES
LOAN GROUP 1
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
RANGE OF CURRENT MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
MORTGAGE RATES LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
8.501% - 8.750% 5 88.46% $29,610,647 1.63x 8.531% 62%
8.751 - 9.000 2 11.54 3,864,500 2.07 8.908 73
------------------------------------------------------------------------------------
Total/Weighted Average 7 100.00% $33,475,147 1.68x 8.575% 63%
================= ========================= ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF CURRENT MORTGAGE RATES
LOAN GROUP 2
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
RANGE OF CURRENT MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
MORTGAGE RATES LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
7.501% - 7.750% 1 1.03% $ 4,371,318 1.79x 7.750% 72%
7.751 - 8.000 17 5.94 25,135,809 1.41 8.000 73
8.001 - 8.250 7 6.51 27,566,818 1.32 8.181 77
8.251 - 8.500 3 7.00 29,623,316 1.32 8.488 67
8.501 - 8.750 9 11.05 46,777,349 1.47 8.708 70
8.751 - 9.000 25 12.95 54,840,570 1.48 8.942 68
9.001 - 9.250 6 3.89 16,480,660 1.53 9.120 70
9.251 - 9.500 11 7.16 30,329,576 1.47 9.408 67
9.501 - 9.750 14 16.62 70,366,301 1.52 9.683 65
9.751 - 10.000 16 16.23 68,709,337 1.57 9.911 64
10.001 - 10.250 13 6.93 29,336,993 1.60 10.097 67
10.251 - 10.500 1 0.77 3,271,473 1.26 10.500 66
10.501 - 10.750 5 2.64 11,172,431 1.68 10.717 58
10.751 - 11.950 2 1.27 5,365,254 2.24 11.459 40
--------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67%
=================== ========================== ====== ==
</TABLE>
<TABLE>
DISTRIBUTION OF PAYMENT TYPES
MORTGAGE POOL
<PAGE>
-28-
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
PAYMENT TYPE LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Amortizing Balloon 112 76.89% $351,250,284 1.48x 9.070% 68%
IO then Amort. Balloon 10 18.73 85,557,225 1.56 9.664 67
Cash Flow Balloon 9 1.89 8,634,525 1.63 9.000 62
Fully Amortizing 6 2.49 11,380,317 1.91 10.187 51
--------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67%
=================== ========================== ====== ==
</TABLE>
<PAGE>
-29-
<TABLE>
DISTRIBUTION OF PAYMENT TYPES
LOAN GROUP 1
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
PAYMENT TYPE LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Amortizing Balloon 7 100.00% $33,475,147 1.68x 8.575% 63%
----------------- ------------------------- ----- --
Total/Weighted Average 7 100.00% $33,475,147 1.68x 8.575% 63%
================= ========================= ===== ==
</TABLE>
<TABLE>
DISTRIBUTION OF PAYMENT TYPES
LOAN GROUP 2
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE
MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE
PAYMENT TYPE LOANS BALANCE BALANCE RATIO RATIO LTV RATIO
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Amortizing Balloon 105 75.06% $317,775,137 1.46x 9.122% 68%
IO then Amort. Balloon 10 20.21 85,557,225 1.56 9.664 67
Cash Flow Balloon 9 2.04 8,634,525 1.63 9.000 62
Fully Amortizing 6 2.69 11,380,317 1.91 10.187 51
--------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67%
=================== ========================== ====== ==
</TABLE>
<TABLE>
DISTRIBUTION OF SEASONING
MORTGAGE POOL
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE AVERAGE
RANGE OF MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE SEASONING
SEASONING (MOS.) LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
New Loan 1 1.88% $ 8,585,000 1.79x 9.850% 66% 0
1 - 5 49 45.31 206,965,161 1.48 9.500 66 3
6 - 10 59 30.28 138,305,604 1.51 8.933 70 8
11 - 20 10 12.40 56,639,505 1.48 8.903 69 15
21 - 30 13 8.91 40,684,426 1.64 8.972 62 25
31 - 40 5 1.24 5,642,654 1.70 9.000 55 35
---------------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67% 8
=== ====== ============ ==== ===== == ==
</TABLE>
<TABLE>
DISTRIBUTION OF SEASONING
LOAN GROUP 1
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE AVERAGE
RANGE OF MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE SEASONING
SEASONING (MOS.) LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
4 - 5 2 11.54% $ 3,864,500 2.07x 8.908% 73% 4
21 - 30 5 88.46 29,610,647 1.63 8.531 62 25
-------------------------------------------------------------------------------------------
Total 7 100.00% $33,475,147 1.68x 8.575% 63% 23
=============== ======================= ===== == ==
</TABLE>
<TABLE>
DISTRIBUTION OF SEASONING
LOAN GROUP 2
<CAPTION>
WEIGHTED WEIGHTED
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED WEIGHTED
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE AVERAGE
RANGE OF MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE SEASONING
<PAGE>
-30-
SEASONING (MOS.) LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
New Loan 1 2.03% $ 8,585,000 1.79 9.850% 66% 0
1 - 5 47 47.97 203,100,662 1.47 9.512 66 3
6 - 10 59 32.67 138,305,604 1.51 8.933 70 8
11 - 20 10 13.38 56,639,505 1.48 8.903 69 15
21 - 30 8 2.62 11,073,779 1.66 10.152 61 24
31 - 40 5 1.33 5,642,654 1.70 9.000 55 35
---------------------------------------------------------------------------------------------
Total 130 100.00% $423,347,204 1.50 9.258% 67% 7
================= ========================================= == ==
</TABLE>
<PAGE>
-31-
<TABLE>
DISTRIBUTION OF REMAINING TERMS TO MATURITY
MORTGAGE POOL
<CAPTION>
WEIGHTED
WEIGHTED WEIGHTED AVERAGE
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED REMAINING
RANGE OF REMAINING NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE TERM TO
TERMS TO MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE MATURITY
MATURITY (MOS.) LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
--------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
31 - 60 14 19.50% $ 89,066,273 1.47x 9.409% 68% 53
61 - 90 23 21.08 96,293,910 1.50 9.130 67 76
91 - 120 86 52.13 238,159,506 1.54 9.174 66 111
151 - 180 11 6.18 28,215,104 1.50 9.059 68 172
181 - 210 1 0.26 1,187,252 1.28 8.125 79 182
211 - 240 1 0.35 1,598,372 1.25 11.950 52 239
271 - 300 1 0.50 2,301,934 1.59 8.625 72 292
---------------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67% 98
================= ======================== ====== == ===
</TABLE>
<TABLE>
DISTRIBUTION OF REMAINING TERMS TO MATURITY
LOAN GROUP 1
<CAPTION>
WEIGHTED
WEIGHTED WEIGHTED AVERAGE
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED REMAINING
NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE TERM TO
RANGE OF REMAINING MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE MATURITY
TERMS TO MATURITY LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
61 - 90 1 8.49% $ 2,840,738 2.27x 8.875% 75% 80
91 - 120 6 91.51 30,634,409 1.62 8.547 62 96
----------------------------------------------------------------------------- --
Total/Weighted Average 7 100.00% $33,475,147 1.68x 8.575% 63% 94
=============== ======================= ===== == ==
</TABLE>
<TABLE>
DISTRIBUTION OF REMAINING TERMS TO MATURITY
LOAN GROUP 2
<CAPTION>
WEIGHTED
WEIGHTED WEIGHTED AVERAGE
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED REMAINING
RANGE OF REMAINING NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE TERM TO
TERMS TO MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE MATURITY
MATURITY (MOS.) LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
--------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
31 - 60 14 21.04% $ 89,066,273 1.47x 9.409% 68% 53
61 - 90 22 22.07 93,453,173 1.47 9.138 67 76
91 - 120 80 49.02 207,525,097 1.53 9.267 67 114
151 - 180 11 6.66 28,215,104 1.50 9.059 68 172
181 - 210 1 0.28 1,187,252 1.28 8.125 79 182
211 - 240 1 0.38 1,598,372 1.25 11.950 52 239
271 - 300 1 0.54 2,301,934 1.59 8.625 72 292
---------------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67% 98
================= ======================== ====== == ===
</TABLE>
<TABLE>
DISTRIBUTION OF ORIGINAL AMORTIZATION TERMS
MORTGAGE POOL
<CAPTION>
WEIGHTED
WEIGHTED WEIGHTED AVERAGE
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED ORIGINAL
RANGE OF ORIGINAL NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE AMORTIZATION
AMORTIZATION MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE TERM
TERMS (MOS.) LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
91 - 120 1 0.21% $938,228 2.07x 8.125% 36% 120
151 - 180 4 1.73 7,924,219 2.01 10.453 49 180
211 - 240 10 5.97 27,286,162 1.73 10.094 63 240
<PAGE>
-32-
<S> <C> <C> <C> <C> <C> <C> <C>
241 - 270 1 1.43 6,554,925 1.61 9.020 69 241
271 - 300 83 53.73 245,468,017 1.54 9.367 67 300
301 - 330 3 2.63 12,028,128 1.38 8.964 73 324
331 - 360 35 34.29 156,622,671 1.41 8.775 69 358
---------------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67% 314
================= ======================== ====== == ===
</TABLE>
<PAGE>
-33-
<TABLE>
DISTRIBUTION OF ORIGINAL AMORTIZATION TERMS
LOAN GROUP 1
<CAPTION>
WEIGHTED
WEIGHTED WEIGHTED AVERAGE
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED ORIGINAL
RANGE OF ORIGINAL NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE AMORTIZATION
AMORTIZATION MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE TERM
TERMS (MOS.) LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
211 - 240 1 3.06% $ 1,023,762 1.49x 9.000% 68% 240
271 - 300 1 8.49 2,840,738 2.27 8.875 75 300
331 - 360 5 88.46 29,610,647 1.63 8.531 62 360
-------------------------------------------------------------------------------------------
Total/Weighted Average 7 100.00% $33,475,147 1.68x 8.575% 63% 351
=============== =========== ==== ===== == ===
</TABLE>
<TABLE>
DISTRIBUTION OF ORIGINAL AMORTIZATION TERMS
LOAN GROUP 2
<CAPTION>
WEIGHTED
WEIGHTED WEIGHTED AVERAGE
PERCENTAGE OF AVERAGE AVERAGE WEIGHTED ORIGINAL
RANGE OF ORIGINAL NUMBER OF AGGREGATE AGGREGATE DEBT SERVICE CURRENT AVERAGE AMORTIZATION
AMORTIZATION MORTGAGE CUT-OFF DATE CUT-OFF DATE COVERAGE MORTGAGE CUT-OFF DATE TERM
TERMS (MOS.) LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
91 - 120 1 0.22% $ 938,228 2.07x 8.125% 36% 120
151 - 180 4 1.87 7,924,219 2.01 10.453 49 180
211 - 240 9 6.20 26,262,400 1.73 10.136 63 240
241 - 270 1 1.55 6,554,925 1.61 9.020 69 241
271 - 300 82 57.31 242,627,279 1.53 9.372 67 300
301 - 330 3 2.84 12,028,128 1.38 8.964 73 324
331 - 360 30 30.00 127,012,024 1.36 8.832 70 357
---------------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67% 311
================= ======================== ====== == ===
</TABLE>
<TABLE>
DISTRIBUTION OF REMAINING AMORTIZATION TERMS
MORTGAGE POOL
<CAPTION>
WEIGHTED
WEIGHTED WEIGHTED AVERAGE
PERCENTAGE OF AGGREGATE AVERAGE AVERAGE WEIGHTED REMAINING
RANGE OF REMAINING NUMBER OF AGGREGATE CUT-OFF DATE DEBT SERVICE CURRENT AVERAGE AMORTIZATION
AMORTIZATION MORTGAGE CUT-OFF DATE PRINCIPAL COVERAGE MORTGAGE CUT-OFF DATE TERM
TERMS (MOS.) LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
91 - 120 1 0.21% $ 938,228 2.07x 8.125% 36% 109
151 - 180 5 1.82 8,322,115 2.01 10.383 49 176
181 - 210 1 0.35 1,605,796 1.71 9.000 55 204
211 - 240 16 7.21 32,942,945 1.73 9.935 62 236
241 - 270 3 1.77 8,078,508 1.56 9.016 71 244
271 - 300 74 51.84 236,833,492 1.53 9.380 67 296
301 - 330 3 2.63 12,028,128 1.38 8.964 73 322
331 - 360 34 34.16 156,073,137 1.41 8.768 69 349
---------------------------------------------------------------------------------------------
Total/Weighted Average 137 100.00% $456,822,350 1.51x 9.208% 67% 306
================= ======================== ===== == ===
</TABLE>
<TABLE>
DISTRIBUTION OF REMAINING AMORTIZATION TERMS
LOAN GROUP 1
<CAPTION>
WEIGHTED
WEIGHTED WEIGHTED AVERAGE
PERCENTAGE OF AGGREGATE AVERAGE AVERAGE WEIGHTED REMAINING
RANGE OF REMAINING NUMBER OF AGGREGATE CUT-OFF DATE DEBT SERVICE CURRENT AVERAGE AMORTIZATION
AMORTIZATION MORTGAGE CUT-OFF DATE PRINCIPAL COVERAGE MORTGAGE CUT-OFF DATE TERM
TERMS (MOS.) LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
211 - 240 1 3.06% $ 1,023,762 1.49x 9.000% 68% 236
<PAGE>
-34-
<S> <C> <C> <C> <C> <C> <C> <C>
271 - 300 1 8.49 2,840,738 2.27 8.875 75 296
331 - 360 5 88.46 29,610,647 1.63 8.531 62 334
-------------------------------------------------------------------------------------------
Total/Weighted Average 7 100.00% $33,475,147 1.68x 8.575% 63% 328
=============== ======================= ===== == ===
</TABLE>
<PAGE>
-35-
<TABLE>
DISTRIBUTION OF REMAINING AMORTIZATION TERMS
LOAN GROUP 2
<CAPTION>
WEIGHTED
WEIGHTED WEIGHTED AVERAGE
PERCENTAGE OF AGGREGATE AVERAGE AVERAGE WEIGHTED REMAINING
RANGE OF REMAINING NUMBER OF AGGREGATE CUT-OFF DATE DEBT SERVICE CURRENT AVERAGE AMORTIZATION
AMORTIZATION MORTGAGE CUT-OFF DATE PRINCIPAL COVERAGE MORTGAGE CUT-OFF DATE TERM
TERMS (MOS.) LOANS BALANCE BALANCE RATIO RATE LTV RATIO (MOS.)
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
91 - 120 1 0.22% $ 938,228 2.07x 8.125% 36% 109
151 - 180 5 1.97 8,322,115 2.01 10.383 49 176
181 - 210 1 0.38 1,605,796 1.71 9.000 55 204
211 - 240 15 7.54 31,919,183 1.74 9.965 62 236
241 - 270 3 1.91 8,078,508 1.56 9.016 71 244
271 - 300 73 55.27 233,992,754 1.53 9.386 67 296
301 - 330 3 2.84 12,028,128 1.38 8.964 73 322
331 - 360 29 29.87 126,462,490 1.36 8.823 70 352
---------------------------------------------------------------------------------------------
Total/Weighted Average 130 100.00% $423,347,204 1.50x 9.258% 67% 305
================= ======================== ===== == ===
</TABLE>
<PAGE>
-36-
<TABLE>
PREPAYMENT LOCK-OUT/PREPAYMENT PREMIUM ANALYSIS
OUTSTANDING PRINCIPAL BALANCE ANALYSIS
MORTGAGE POOL
<CAPTION>
DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1,
1996 1997 1998 1999 2000 2001 2002 2003
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Locked Out 19.94% 18.34% 13.33% 8.14% 6.39% 4.61% 5.08% 6.30%
Yield Maintenance 72.86 74.46 79.45 77.10 75.50 77.11 72.29 73.85
5.00 - 5.99% 0.00 0.00 0.00 0.96 0.00 0.00 0.00 0.00
4.00 - 4.99% 0.00 0.00 0.00 0.00 0.99 0.00 0.00 0.00
3.00 - 3.99% 6.48 0.00 0.00 0.82 0.00 1.12 1.24 0.54
2.00 - 2.99% 0.72 7.20 0.00 0.43 0.84 0.00 1.23 1.54
1.00 - 1.99% 0.00 0.00 7.22 6.03 3.40 0.95 0.15 4.10
No Penalty 0.00 0.00 0.00 6.51 12.89 16.20 20.00 13.67
------------------------------------------------------------------------------------
Total 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00%
====== ====== ====== ====== ====== ====== ====== ======
Aggregate Principal Balance
of the Mortgage Loans
($ Millions)(a) $456.82 $452.26 $446.66 $440.53 $423.88 $365.83 $327.31 $259.95
Percentage of Aggregate
Cut-off Date Balance of the
Mortgage Loans Outstanding 100.00% 99.00% 97.78% 96.43% 92.79% 80.08% 71.65% 56.90%
<CAPTION>
DEC. 1, DEC. 1, DEC. 1,
2004 2005 2006
--------------------------------
<S> <C> <C> <C>
Locked Out 7.33% 5.38% 0.00%
Yield Maintenance 84.10 47.36 29.28
5.00 - 5.99% 0.00 2.29 45.57
4.00 - 4.99% 0.00 0.00 17.94
3.00 - 3.99% 0.00 0.00 0.00
2.00 - 2.99% 0.62 0.00 0.00
1.00 - 1.99% 4.71 0.86 7.21
No Penalty 3.24 44.11 0.00
---------------------------------
Total 100.00% 100.00% 100.00%
====== ====== ======
Aggregate Principal Balance
of the Mortgage Loans
($ Millions)(a) $219.65 $205.90 $25.79
Percentage of Aggregate
Cut-off Date Balance of the
Mortgage Loans Outstanding 48.08% 45.07% 5.64%
</TABLE>
(a) Based upon the Maturity Assumptions and a 0% CPR.
<PAGE>
-37-
<TABLE>
PREPAYMENT LOCK-OUT/PREPAYMENT PREMIUM ANALYSIS
OUTSTANDING PRINCIPAL BALANCE ANALYSIS
LOAN GROUP 1
<CAPTION>
DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1,
1996 1997 1998 1999 2000 2001 2002 2003
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Locked out 11.54% 3.03% 3.00% 0.00% 0.00% 0.00% 0.00% 0.00%
Yield Maintenance 0.00 8.47 8.44 11.38 11.31 11.23 11.14 3.01
5.00 - 5.99% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
4.00 - 4.99% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
3.00 - 3.99% 88.46 0.00 0.00 0.00 0.00 0.00 0.00 0.00
2.00 - 2.99% 0.00 88.50 0.00 0.00 0.00 0.00 0.00 0.00
1.00 - 1.99% 0.00 0.00 88.56 0.00 0.00 0.00 0.00 0.00
No Penalty 0.00 0.00 0.00 88.62 88.69 88.77 88.86 96.99
------------------------------------------------------------------------------------
Total 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00%
====== ====== ====== ====== ====== ====== ====== ======
Aggregate Principal Balance
of the Mortgage Loans
($ Millions)(a) $33.48 $33.14 $32.78 $32.38 $31.95 $31.48 $30.97 $27.90
Percentage of Cut-off Date
Balance of the Mortgage
Loans Outstanding 100.00% 99.01% 97.92% 96.73% 95.44% 94.04% 92.51% 83.33%
<CAPTION>
DEC. 1, DEC. 1, DEC. 1,
2004 2005 2006
--------------------------------
<S> <C> <C> <C>
Locked out 0.00% 0.00% 0.00%
Yield Maintenance 100.00 100.00 0.00
5.00 - 5.99% 0.00 0.00 0.00
4.00 - 4.99% 0.00 0.00 0.00
3.00 - 3.99% 0.00 0.00 0.00
2.00 - 2.99% 0.00 0.00 0.00
1.00 - 1.99% 0.00 0.00 0.00
No Penalty 0.00 0.00 0.00
---------------------------------
Total 100.00% 100.00% 0.00%
====== ====== ====
Aggregate Principal Balance
of the Mortgage Loans
($ Millions)(a) $0.80 $0.76 $0.00
Percentage of Cut-off Date
Balance of the Mortgage
Loans Outstanding 2.39% 2.27% 0.00%
</TABLE>
(a) Based upon the Maturity Assumptions and a 0% CPR.
<PAGE>
-38-
<TABLE>
PREPAYMENT LOCK-OUT/PREPAYMENT PREMIUM ANALYSIS
OUTSTANDING PRINCIPAL BALANCE ANALYSIS
LOAN GROUP 2
<CAPTION>
DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1, DEC. 1,
1996 1997 1998 1999 2000 2001 2002 2003
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Locked out 20.61% 19.55% 14.14% 8.79% 6.91% 5.05% 5.61% 7.06%
Yield Maintenance 78.62 79.68 85.08 82.31 80.73 83.31 78.68 82.37
5.00 - 5.99% 0.00 0.00 0.00 1.04 0.00 0.00 0.00 0.00
4.00 - 4.99% 0.00 0.00 0.00 0.00 1.07 0.00 0.00 0.00
3.00 - 3.99% 0.00 0.00 0.00 0.88 0.00 1.23 1.37 0.60
2.00 - 2.99% 0.77 0.78 0.00 0.47 0.91 0.00 1.36 1.73
1.00 - 1.99% 0.00 0.00 0.78 6.51 3.68 1.04 0.17 4.60
No Penalty 0.00 0.00 0.00 0.00 6.71 9.37 12.81 3.65
------------------------------------------------------------------------------------
Total 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00%
====== ====== ====== ====== ====== ====== ====== ======
Aggregate Principal Balance
of the Mortgage Loans
($ Millions)(a) $423.35 $419.11 $413.88 $408.15 $391.93 $334.35 $296.34 $232.05
Percentage of Cut-off Date
Balance of the Mortgage
Loans Outstanding 100.00% 99.00% 97.76% 96.41% 92.58% 78.98% 70.00% 54.81%
<CAPTION>
DEC. 1, DEC. 1, DEC. 1,
2004 2005 2006
--------------------------------
<S> <C> <C> <C>
Locked out 7.36% 5.40% 0.00%
Yield Maintenance 84.04 47.16 29.28
5.00 - 5.99% 0.00 2.30 45.57
4.00 - 4.99% 0.00 0.00 17.94
3.00 - 3.99% 0.00 0.00 0.00
2.00 - 2.99% 0.62 0.00 0.00
1.00 - 1.99% 4.73 0.86 7.21
No Penalty 3.25 44.28 0.00
---------------------------------
Total 100.00% 100.00% 100.00%
====== ====== ======
Aggregate Principal Balance
of the Mortgage Loans
($ Millions)(a) $218.85 $205.14 $25.79
Percentage of Cut-off Date
Balance of the Mortgage
Loans Outstanding 51.70% 48.46% 6.09%
</TABLE>
(a) Based upon the Maturity Assumptions and a 0% CPR.
<PAGE>
EXHIBIT K
(Form of UCC-1 Financing Statement)
FORM OF UCC-1
<PAGE>
SCHEDULE 1 TO EXHIBIT K
SCHEDULE 1
All right (including the power to convey title thereto), title and interest of
the Debtor in and to the following, each as more particularly described on
Exhibit A attached hereto: (1) the mortgage note or other evidence of
indebtedness of a Mortgagor ("Mortgage Notes"), (2) the related mortgages, deeds
of trust or other similar instruments securing such Mortgage Notes ("Mortgages")
and (3) each document in the related Mortgage Files, together with any and all
income, payments, proceeds and products of any of the foregoing.
<PAGE>
-2-
EXHIBIT A OF SCHEDULE 1
All right (including the power to convey title thereto), title and
interest of the Debtor in and to the following property sold to the Secured
Party pursuant to the Mortgage Loan Purchase Agreement, Dated as of October 30,
1996 (the "Mortgage Loan Purchase Agreement"), between the Debtor as seller, and
the Secured Party as purchaser, and assigned to the Assignee* pursuant to the
Pooling and Servicing Agreement, dated as of November 1, 1996, among the Secured
Party as Depositor, the Assignee as Trustee, and GMAC Commercial Mortgage
Corporation as Master Servicer and Special Servicer, with respect to Mortgage
Pass-Through Certificates, Series 1996-C1 (the "Pooling and Servicing Agreement
(Series 1996-C1)"):
(1)the Mortgage Notes, with respect to the Mortgage Loans listed on the Mortgage
Loan Schedule attached hereto;
(2)the Mortgages secured by such Mortgage Notes, as more particularly described
in the Mortgage Loan Schedule;
(3) with respect to each Mortgage Note and related Mortgage, each document
contained in the related Mortgage File; and
(4) any and all general intangibles (as defined in the Uniform Commercial Code)
consisting of, arising from or relating to any of the foregoing; and
(5) 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 Mortgage Loan Purchase
Agreement.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY
THE MORTGAGE LOAN PURCHASE 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 AND THE ASSIGNEE*, WITH RESPECT TO THE
MORTGAGE LOANS, IN ANY MORTGAGE NOTE, MORTGAGE OR DOCUMENT IN A MORTGAGE FILE.
WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY
ASSERTIONS BY THIRD PARTIES.
*Not in its individual capacity, but solely as Trustee for the benefit
of the Certificateholders pursuant to the Pooling and Servicing Agreement
(Series 1996-C1).
<PAGE>
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SCHEDULE 2 TO EXHIBIT K
(Mortgage Loan Schedule)
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of October 30, 1996, between GMAC Commercial Mortgage Corporation
as seller (the "Seller") and GMAC Commercial Mortgage Securities, Inc. as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a Division of McGraw-Hill Companies, Inc. and/or
Moody's Investor's Services, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Registered Certificates") will be registered
under the Securities Act of 1933, as amended (the "Securities Act"). The Trust
Fund will be created and the Certificates will be issued pursuant to a pooling
and servicing agreement to be dated as of November 1, 1996 (the "Pooling and
Servicing Agreement"), among the Purchaser as depositor, GMAC Commercial
Mortgage Corporation as master servicer (in such capacity, the "Master
Servicer") and special servicer (in such capacity, the "Special Servicer"), and
State Street Bank and Trust Company as trustee (in such capacity, the
"Trustee"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell the Certificates to Goldman, Sachs & Co.
("Goldman") and Morgan Stanley & Co. Incorporated ("Morgan", and together with
Goldman, the "Underwriters") pursuant to, in the case of the Registered
Certificates, an underwriting agreement dated the date hereof (the "Underwriting
Agreement") and, in the case of the remaining Certificates (the "Non-Registered
Certificates"), a certificate purchase agreement dated the date hereof (the
"Certificate Purchase Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. AGREEMENT TO PURCHASE.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on November 7, 1996 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on November 1, 1996 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$55,515,151.86, subject to a variance of plus or minus 5.0%. The purchase price
for the Mortgage Loans shall be determined and paid to the
<PAGE>
Seller in accordance with the terms of an allocation agreement dated the date
hereof (the "Allocation Agreement"), to which the Seller and Purchaser, among
others, are parties.
SECTION 2. CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, subject only to receipt by the
Seller of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdback for transaction expenses in accordance with the Allocation
Agreement), the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including all interest and principal received or
receivable by the Seller on or with respect to the Mortgage Loans after the
Cut-off Date, together with all of the Seller's right, title and interest in and
to the proceeds of any related title, hazard, or other insurance policies and
any escrow, reserve or other comparable accounts related to the Mortgage Loans.
The Purchaser shall be entitled to (and, to the extent received by or on behalf
of the Seller, the Seller shall deliver or cause to be delivered to or at the
direction of the Purchaser) all scheduled payments of principal and interest due
on the Mortgage Loans after the Cut-off Date, and all other recoveries of
principal and interest collected thereon after the Cut-off Date. All scheduled
payments of principal and interest due thereon on or before the Cut-off Date and
collected after the Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection
(a) above, the Seller hereby acknowledges that it is obligated to deliver to and
deposit with, or cause to be delivered to and deposited with, and further
represents and warrants that it has so delivered to and deposited with, or
caused to be delivered to and deposited with, State Street Bank and Trust
Company (the "Interim Custodian") the Mortgage File (as described on Exhibit B
hereto) for each Mortgage Loan so assigned. If the Seller cannot deliver, or
cause to be delivered, as to any Mortgage Loan, the original or a copy of any of
the documents and/or instruments referred to in clauses (ii), (iv), (viii),
(xi)(A) and (xii) of Exhibit B, with evidence of recording thereon, solely
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 this Section 2(b) shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Interim
Custodian, 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 Purchaser (or any subsequent owner of
the affected Mortgage Loan, including without limitation the Trustee) within 180
days of the Closing Date (or within such longer period after the Closing Date as
the Purchaser (or such subsequent owner) may consent to, which consent shall not
be unreasonably withheld so long as the Seller has provided the Purchaser (or
such subsequent owner) with evidence of such recording or filing, as the case
may be, or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no
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<PAGE>
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy). If the
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 (ix) of Exhibit B solely because such policy has not yet been issued, the
delivery requirements of this Section 2(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 Seller has delivered to the
Interim Custodian a commitment for title insurance "marked-up" at the closing of
such Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), 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 Exhibit B 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. On the Closing Date, upon notification from the Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdback
for transaction expenses in accordance with the Allocation Agreement) has been
received by the Seller, the Interim Custodian shall be authorized to release to
the Purchaser or its designee all of the Mortgage Files in the Interim
Custodian's possession relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all
costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of Exhibit B; provided that the
Seller shall not be responsible for actually recording or filing any such
document or instrument. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession of
the Seller (or under its control) with respect to the Mortgage Loans, shall
(unless they are held by a sub-servicer that shall, as of the Closing Date,
begin acting on behalf of the Master Servicer pursuant to a written agreement
between such parties) be delivered by the Seller (or its agent) to the Purchaser
(or its designee) no later than the Closing Date. If a sub-servicer shall, as of
the Closing Date, begin acting on behalf of the Master Servicer with respect to
any Mortgage Loan pursuant to a written agreement between such parties, the
Seller shall deliver a copy of the related Servicing File to the Master
Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale.
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<PAGE>
SECTION 3. EXAMINATION OF MORTGAGE LOAN FILES AND DUE DILIGENCE
REVIEW.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER.
(a) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit
C, with such changes or modifications as may be permitted or required by the
Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents
and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a Corporation, duly authorized, validly
existing and in good standing under the laws of the State of
California, and is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this
Agreement by the Seller, will not violate the Seller'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) The Seller 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 Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller 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) The Seller 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
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<PAGE>
not constitute a violation of, any law, any 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 the Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Seller to perform
its obligations under this Agreement or the financial condition of the
Seller.
(vi) No litigation is pending with regard to which the Seller
has received service of process or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit the
Seller from entering into this Agreement or, in the Seller's good faith
and reasonable judgment, is likely to materially and adversely affect
either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, ContiFinancial Services Corporation, ING Baring (U.S.)
Corporation, and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the
Mortgage Loans or the consummation of any of the other transactions
contemplated hereby.
(viii) Neither the Seller nor anyone acting on its behalf has
(A) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (B) solicited any offer to buy or
to accept a pledge, disposition or other transfer of any Certificate,
any interest in any Certificate or any other similar security from any
person in any manner, (C) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (D) made any
general solicitation by means of general advertising or in any other
manner with respect to any Certificate, any interest in any Certificate
or any similar security, or (E) taken any other action, that (in the
case of any of the acts described in clauses (A) through (E) above)
would constitute or result in a violation of the Securities Act or any
state securities law relating to or in connection with the issuance of
the Certificates or require registration or qualification pursuant to
the Securities Act or any state securities law of any Certificate not
otherwise intended to be a Registered Certificate. In addition, the
Seller will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any of the Certificates or interests therein. For purposes
of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans
or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the
information set forth on pages A-9 through A-45, inclusive, of Annex A
to the Prospectus Supplement (as defined in Section 9) (the "Loan
Detail") and, to the extent consistent therewith, the information set
forth on the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it relates to the Mortgage Loans and/or
the Seller and does not represent a restatement or aggregation of the
information on the Loan Detail, the information set forth in the
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<PAGE>
Prospectus Supplement and the Memorandum (also as defined in Section 9)
under the headings "Summary of the Prospectus Supplement--The Mortgage
Asset Pool", "Risk Factors--The Mortgage Loans" and "Description of the
Mortgage Asset Pool", set forth on Annex A to the Prospectus Supplement
and (to the extent it contains information consistent with that on such
Annex A) set forth on the Diskette, does not contain any untrue
statement of a material fact or (in the case of the Memorandum, when
read together with the other information specified therein as being
available for review by investors) omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in subsection
(b) above which materially and adversely affects the interests of the Purchaser
or a breach of any of the representations and warranties made pursuant to
subsection (a) above and set forth in Exhibit B which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the Purchaser
or its successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PURCHASER.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser'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) The Purchaser 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 Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser 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.
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<PAGE>
(v) The Purchaser 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, any 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 the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would
prohibit the Purchaser from entering into this Agreement or, in the
Purchaser's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the
Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
ContiFinancial Services Corporation, ING Baring (U.S.) Corporation and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. REPURCHASES.
(a) Within 90 days of the earlier of discovery or receipt of notice by
the Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement) in respect of the
Mortgage File for any Mortgage Loan or a breach of any representation or
warranty made pursuant to Section 4(a) and set forth in Exhibit C, which Defect
or breach, as the case may be, materially and adversely affects the value of any
Mortgage Loan or the interests therein of the Purchaser or its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), the Seller shall cure such Defect or breach, as the case may be,
in all material respects or repurchase the affected Mortgage Loan from the then
owner(s) thereof at the applicable Purchase Price (as defined in the Pooling and
Servicing Agreement) by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
If the Seller is notified of a defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes.
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<PAGE>
(b) Notwithstanding Section 6(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
In addition, if any Mortgage Loan is secured by a Mortgage
that does not constitute a valid first lien upon the related Mortgaged Property,
including all buildings located thereon and all fixtures attached thereto, such
lien being subject only to (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, and (C) exceptions
and exclusions specifically referred to in the lender's title insurance policy
issued or, as evidenced by a "marked-up" commitment, to be issued in respect of
such Mortgage Loan (the exceptions set forth in the foregoing clauses (A), (B)
and (C) collectively, "Permitted Encumbrances"), then (within 90 days of the
earlier of discovery or receipt of notice of such failure by the Seller) the
Seller shall, if such failure materially and adversely affects the value of such
Mortgage Loan or the interests therein of the Purchaser or its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), cure such failure in all material respects or repurchase the
affected Mortgage Loan from the owner(s) thereof at the applicable Purchase
Price by payment of such Purchase Price by wire transfer of immediately
available funds to the account designated by such owner(s).
(c) In connection with any repurchase of a Mortgage Loan contemplated
by this Section 6, the then owner(s) thereof shall tender or cause to be
tendered promptly to the Seller, upon delivery of a receipt executed by the
Seller, the related Mortgage File and Servicing File, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Purchaser or the Trustee shall be endorsed or assigned, as the case may be, to
the Seller in the same manner. The form and sufficiency of all such instruments
and certificates shall be the responsibility of the Seller.
(d) This Section 6 provides the sole remedies available to the
Purchaser, and its successors and assigns (including, without limitation the
Trustee and the holders of the Certificates) respecting any Defect in a Mortgage
File or any breach of any representation or warranty made pursuant to Section
4(a) and set forth in Exhibit C, or in connection with the circumstances
described in Section 6(b). If the Seller defaults on its obligations to
repurchase any Mortgage Loan in accordance with Section 6(a) or 6(b) or disputes
its obligation to repurchase any Mortgage Loan in accordance with either such
subsection, the Purchaser may take such action as is appropriate to enforce such
payment or performance, including, without limitation, the institution and
prosecution of appropriate proceedings. The Seller shall reimburse the Purchaser
for all necessary and reasonable costs and expenses incurred in connection with
such enforcement.
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<PAGE>
SECTION 7. CLOSING.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Thacher Proffitt & Wood, Two World Trade Center, New
York, New York 10048 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the
Seller specified herein shall be true and correct as of the
Closing Date, and the Aggregate Cut-off Date Balance shall be
within the range permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 of this
Agreement (the "Closing Documents"), in such forms as are
agreed upon and acceptable to the Purchaser, shall be duly
executed and delivered by all signatories as required pursuant
to the respective terms thereof;
(iii) The Seller shall have delivered and released to
the Interim Custodian, the Purchaser or the Purchaser's
designee, as the case may be, all documents and funds required
to be so delivered pursuant to Section 2 hereof;
(iv) The result of any examination of the Mortgage
Files and Servicing Files performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory
to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement
required to be complied with on or before the Closing Date
shall have been complied with, and the Seller shall have the
ability to comply with all terms and conditions and perform
all duties and obligations required to be complied with or
performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all
fees, costs and expenses payable by it to the Purchaser
pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the
Certificate Purchase Agreement shall have been terminated in
accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. CLOSING DOCUMENTS.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
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<PAGE>
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of California, dated not earlier than 30 days
prior to the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Purchaser and each
Underwriter may rely;
(e) A written opinion of counsel for the Seller, substantially in the
form of Exhibit D- 3 hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the Purchaser
and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested
by the Rating Agencies in connection with the issuance of the Certificates, each
of which shall include the Purchaser and each Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. INDEMNIFICATION.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, its
officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding the Seller or
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<PAGE>
the Mortgage Loans contained in the Prospectus Supplement or the Memorandum
under the headings "Summary of Prospectus Supplement - The Mortgage Asset Pool",
"Risk Factors - The Mortgage Loans" and/or "Description of the Mortgage Asset
Pool" or contained on Annex A to the Prospectus Supplement (exclusive of the
Loan Detail), and such information does not represent a restatement or
aggregation of information contained in the Loan Detail; or (iii) such untrue
statement, alleged untrue statement, omission or alleged omission arises out of
or is based upon a breach of the representations and warranties of the Seller
set forth in or made pursuant to Section 4; provided, that the indemnification
provided by this Section 9 shall not apply to the extent that such untrue
statement of a material fact or omission of a material fact necessary to make
the statements made, in light of the circumstances in which they were made, not
misleading, was made as a result of an error in the manipulation of, or
calculations based upon, the Loan Detail.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 33-94448 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated October 22,
1996, as supplemented by the prospectus supplement dated October 30, 1996 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated October 30, 1996, relating to
the NonRegistered Certificates; "Computational Materials" shall have the meaning
assigned thereto in the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Securities and Exchange Commission (the
"Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated, and Kidder Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters"). This indemnity
agreement will be in addition to any liability which the Seller may otherwise
have.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller (the "indemnifying party") under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; PROVIDED,
HOWEVER, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action
-11-
<PAGE>
on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election to assume the
defense of such action and approval by the indemnified party of counsel, which
approval will not be unreasonably withheld, the indemnifying party will not be
liable for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof, unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Purchaser and the
indemnifying party, representing all the indemnified parties under Section 9(a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall only be
in respect of the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by PRO RATA
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 9, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
9 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement,
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<PAGE>
(ii) any investigation made by any indemnified party, and (iii) acceptance of
and payment for any of the Certificates.
SECTION 10. COSTS.
Costs relating to the transactions contemplated hereby shall be borne
by the respective parties hereto in accordance with the Allocation Agreement.
SECTION 11. NOTICES.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at
650 Dresher Road, P.O. Box 1015, Horsham, Pennsylvania 19044-8015, Attention:
Ms. Elisa George, facsimile no. (215) 682-3425, with a copy to GMAC Mortgage
Corporation, 3031 West Grand Boulevard, Detroit, Michigan 48232, Attention:
Robert Schwartz, facsimile no. (313) 974-0685 or such other address or facsimile
number as may hereafter be furnished to the Seller in writing by the Purchaser;
and if to the Seller, addressed to GMAC Commercial Mortgage Corporation, at 650
Dresher Road, P.O. Box 1015, Horsham, Pennsylvania 19044-8015, Attention: Ms.
Elisa George, facsimile no. (215) 682-3425, with a copy to GMAC Mortgage
Corporation, 3031 West Grand Boulevard, Detroit, Michigan 48232, Attention:
Robert Schwartz, facsimile no. (313) 974-0685 or to such other address or
facsimile number as the Seller may designate in writing to the Purchaser.
SECTION 12. THIRD PARTY BENEFICIARIES.
Each of the officers, directors and controlling persons
referred to in Section 9 hereof is an intended third party beneficiary of the
covenants and indemnities of the Seller set forth in Section 9 of this
Agreement. It is acknowledged and agreed that such representations, warranties,
covenants and indemnities may be enforced by or on behalf of any such person or
entity against the Seller to the same extent as if it was a party hereto.
SECTION 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14. SEVERABILITY OF PROVISIONS.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to
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<PAGE>
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To
the extent permitted by applicable law, the parties hereto waive any provision
of law which prohibits or renders void or unenforceable any provision hereof.
SECTION 15. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY
TO THIS AGREEMENT.
SECTION 17. FURTHER ASSURANCES.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. SUCCESSORS AND ASSIGNS.
The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. AMENDMENTS.
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any
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<PAGE>
manner which would have a material adverse effect on any third party beneficiary
hereof without the prior consent of that person.
-15-
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:___________________________________
Name:
Title:
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:___________________________________
Name:
Title:
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip
code) of the related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date
and whether such Mortgage Loan is an ARM Loan, a
Fixed-Rate Loan or a Step-Down Loan;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B)
Stated Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first
Due Date following the Cut-off Date;
(ix) in the case of an ARM Loan, the (A) Index, (B) Gross
Margin, (C) first Mortgage Rate adjustment date
following the Cut-off Date and the frequency of
Mortgage Rate adjustments, and (D) maximum and
minimum lifetime Mortgage Rate, if any; and
(x) the Loan Group.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
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.
<PAGE>
<TABLE>
GMACCM MORTGAGE LOAN SCHEDULE
<CAPTION>
Control Loan
Number Number Property Name Property Address City
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
GMAC1010 01-1015139 Berkeley Center 2200-2240 Shattuck Ave. Berkeley
GMAC1020 01-1015266 Plaza de Santa Fe 16950-56 Via De Santa Fe Rancho Santa Fe
GMAC1030 01-1015267 Block C 6024 Paseo Delicias Rancho Santa Fe
GMAC1040 01-1015031 Pinetree Village Apartments 7500 North Broadway Denver
GMAC1050 01-1014088 Carriage Hill Apartments 8901 Huron Street Thornton
GMAC1060 01-1014089 Springwood Apartments 2660 Old Bainbridge Road Tallahassee
GMAC1070 01-1014091 Glynn Place Apartments 820 Scranton Road Brunswick
GMAC1080 01-1014090 Pine Hill Apartments 600 South Pine Hill Road Griffin
GMAC1090 01-1015182 Glenwood Center 5117-5181 Glenwood Street Garden City
GMAC1100 01-1015159 Jill Sanders Boutique 48 East Oak Street Chicago
GMAC1110 07-1000010 Copper Ridge Apartments 2080 Lobdell Avenue Baton Rouge
GMAC1130 01-1015224 Steiner Ocean Apartments 65 Steiner Avenue Neptune City
GMAC1140 01-1000026 533 W. 21st Street Building 533 W. 21st Street New York
GMAC1150 01-1015225 Birch Brook Manor 81-89 South Highland Ossining
GMAC1160 07-1000009 Farmington Court Apartments 780 Farmington Avenue Pottstown
GMAC1170 01-1000036 Green Wood Apartments 790 Green Wave Road Gallatin
GMAC1180 07-1000004 Arms Apartments 27-86 Mercury Court West Springfield
GMAC1190 07-1000006 Alexandria Gardens 652 W. Montgomery Street Allentown
<CAPTION>
Control Loan Mortgage Loan
Number Number Property Name State Zip Rate Type
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
GMAC1010 01-1015139 Berkeley Center CA 94704 9.730 Fixed
GMAC1020 01-1015266 Plaza de Santa Fe CA 92067 9.130 Fixed
GMAC1030 01-1015267 Block C CA 92068 9.130 Fixed
GMAC1040 01-1015031 Pinetree Village Apartments CO 80221 8.625 Fixed
GMAC1050 01-1014088 Carriage Hill Apartments CO 80221 8.625 Fixed
GMAC1060 01-1014089 Springwood Apartments FL 32310 8.170 Fixed
GMAC1070 01-1014091 Glynn Place Apartments GA 31525 8.160 Fixed
GMAC1080 01-1014090 Pine Hill Apartments GA 30223 8.230 Fixed
GMAC1090 01-1015182 Glenwood Center ID 83714 9.490 Fixed
GMAC1100 01-1015159 Jill Sanders Boutique IL 60611 9.320 Fixed
GMAC1110 07-1000010 Copper Ridge Apartments LA 70806 7.750 Fixed
GMAC1130 01-1015224 Steiner Ocean Apartments NJ 07753 9.400 Fixed
GMAC1140 01-1000026 533 W. 21st Street Building NY 10011 9.000 Fixed
GMAC1150 01-1015225 Birch Brook Manor NY 10562 9.250 Fixed
GMAC1160 07-1000009 Farmington Court Apartments PA 19464 8.000 Fixed
GMAC1170 01-1000036 Green Wood Apartments TN 37066 8.860 Fixed
GMAC1180 07-1000004 Arms Apartments MA 01089 8.125 Fixed
GMAC1190 07-1000006 Alexandria Gardens PA 18103 8.250 Fixed
<CAPTION>
Control Loan Original Date Term to
Number Number Property Name Balance Balance Maturity
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
GMAC1010 01-1015139 Berkeley Center 8,303,870 8,277,341.13 80
GMAC1020 01-1015266 Plaza de Santa Fe 3,000,000 2,994,743.10 118
GMAC1030 01-1015267 Block C 1,500,000 1,497,371.54 118
GMAC1040 01-1015031 Pinetree Village Apartments 2,130,000 2,115,538.89 113
GMAC1050 01-1014088 Carriage Hill Apartments 2,320,000 2,301,933.60 292
GMAC1060 01-1014089 Springwood Apartments 3,990,000 3,968,806.12 172
GMAC1070 01-1014091 Glynn Place Apartments 4,140,000 4,117,968.99 172
GMAC1080 01-1014090 Pine Hill Apartments 3,270,000 3,252,838.27 172
GMAC1090 01-1015182 Glenwood Center 1,950,000 1,935,094.64 177
GMAC1100 01-1015159 Jill Sanders Boutique 2,200,000 2,194,376.21 81
GMAC1110 07-1000010 Copper Ridge Apartments 4,400,000 4,371,317.72 111
GMAC1130 01-1015224 Steiner Ocean Apartments 1,000,000 996,891.00 116
GMAC1140 01-1000026 533 W. 21st Street Building 3,250,000 3,223,113.52 111
GMAC1150 01-1015225 Birch Brook Manor 2,850,000 2,841,945.06 116
GMAC1160 07-1000009 Farmington Court Apartments 1,075,000 1,064,551.28 111
GMAC1170 01-1000036 Green Wood Apartments 5,322,000 5,271,368.41 164
GMAC1180 07-1000004 Arms Apartments 1,000,000 938,228.13 109
GMAC1190 07-1000006 Alexandria Gardens 4,200,000 4,151,724.25 109
---------------------
55,515,151.86
<CAPTION>
Control Loan Due Monthly Loan
Number Number Property Name Date Payment Group
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
GMAC1010 01-1015139 Berkeley Center 08/01/96 73,882.65 Group 2
GMAC1020 01-1015266 Plaza de Santa Fe 10/01/96 25,433.49 Group 2
GMAC1030 01-1015267 Block C 10/01/96 12,721.75 Group 2
GMAC1040 01-1015031 Pinetree Village Apartments 05/01/96 17,331.13 Group 2
GMAC1050 01-1014088 Carriage Hill Apartments 04/01/96 18,877.10 Group 2
GMAC1060 01-1014089 Springwood Apartments 04/01/96 29,752.00 Group 2
GMAC1070 01-1014091 Glynn Place Apartments 04/01/96 30,841.00 Group 2
GMAC1080 01-1014090 Pine Hill Apartments 04/01/96 24,521.00 Group 2
GMAC1090 01-1015182 Glenwood Center 09/01/96 20,350.62 Group 2
GMAC1100 01-1015159 Jill Sanders Boutique 09/01/96 18,946.78 Group 2
GMAC1110 07-1000010 Copper Ridge Apartments 03/01/96 31,522.14 Group 2
GMAC1130 01-1015224 Steiner Ocean Apartments 08/01/96 8,667.55 Group 2
GMAC1140 01-1000026 533 W. 21st Street Building 03/01/96 27,273.88 Group 2
GMAC1150 01-1015225 Birch Brook Manor 08/01/96 23,959.35 Group 2
GMAC1160 07-1000009 Farmington Court Apartments 03/01/96 8,297.02 Group 2
GMAC1170 01-1000036 Green Wood Apartments 08/01/95 42,287.00 Group 2
GMAC1180 07-1000004 Arms Apartments 01/01/96 12,198.91 Group 2
GMAC1190 07-1000006 Alexandria Gardens 01/01/96 33,114.91 Group 2
</TABLE>
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section
2(b), collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most
recent endorsee prior to the Trustee or, if none, by
the originator, without recourse, either in blank or
to the order of the Trustee in the following form:
"Pay to the order of State Street Bank and Trust
Company, as trustee for the registered holders of
GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1996-C1, without
recourse";
(ii) 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;
(iii) an original assignment of the Mortgage, in recordable
form, executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the
originator, either in blank or in favor of the
Trustee (in such capacity);
(iv) the original or a copy of the 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;
(v) 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 (iii) above;
(vi) an original or 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;
<PAGE>
-2-
(vii) 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 (iii) above;
(viii) originals or copies of all assumption, modification,
written assurance and substitution agreements, with
evidence of recording thereon if 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;
(ix) the original or a copy of the lender's title
insurance policy issued as of the date of the
origination of the Mortgage Loan, 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;
(x) 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 Seller at the time
the Mortgage Files were delivered to the Trustee;
(xi) (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 Seller (or its agent) at the
time the Mortgage Files were delivered to the Interim
Custodian and (B) if any such security interest is
perfected and the earlier UCC financing statements
and continuation statements were in the possession of
the 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;
(xii) 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 signed on behalf of the mortgagor; and
(xiii) if the mortgagor has a leasehold interest in the
related Mortgaged Property, the original ground lease
or a copy thereof;
<PAGE>
-3-
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser, the Trustee or the Interim Custodian, such
term shall not be deemed to include such documents and instruments required to
be included therein unless they are actually so received.
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby
represents and warrants, as of the date hereinbelow specified or, if no such
date is specified, as of the Closing Date, that:
(i) Immediately prior to the transfer thereof to the
Purchaser, the Seller had good and marketable title to, and was the
sole owner and holder of, such Mortgage Loan, free and clear of any and
all liens, encumbrances and other interests on, in or to such Mortgage
Loan (other than, in certain cases, the right of a subservicer to
primary service such Mortgage Loan).
(ii) The Seller has full right and authority to sell, assign
and transfer such Mortgage Loan. No provision of the Mortgage Note,
Mortgage or other loan document relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such
Mortgage Loan.
(iii) The information pertaining to such Mortgage Loan set
forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Cut-off Date, 30
days or more delinquent in respect of any Monthly Payment of principal
and/or interest required thereunder, without giving effect to any
applicable grace period.
(v) The Permitted Encumbrances do not materially interfere
with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property, or the
current ability of the related Mortgaged Property to generate net
operating income sufficient to service the Mortgage Loan.
(vi) The lien of the related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of the related Mortgage
Loan, its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the related Mortgage Loan
after all advances of principal, subject only to Permitted Encumbrances
(or, if a title insurance policy has not yet been issued in respect of
any Mortgage Loan, a policy meeting the foregoing description is
evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). To the Seller's actual knowledge, no material
claims have been made under such title policy and no claims have been
paid thereunder.
(vii) The Seller has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage
or Mortgage Note.
<PAGE>
-2-
(viii) There is no valid offset, defense or counterclaim to
such Mortgage Loan.
(ix) The Seller has not received actual notice (A) that there
is any proceeding pending or threatened for the total or partial
condemnation of the related Mortgaged Property or (B) that there is any
material damage at the related Mortgaged Property that materially and
adversely affects the value of such Mortgaged Property.
(x) At origination, such Mortgage Loan complied in all
material respects with all requirements of federal, state and local
laws, including, without limitation, laws relating to usury, relating
to the origination of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage for such Mortgage Loan
and all other documents and instruments evidencing, guaranteeing,
insuring or otherwise securing such Mortgage Loan have been duly and
properly executed by the parties thereto, and each is the legal, valid
and binding obligation of the maker thereof (subject to any
non-recourse provisions contained in any of the foregoing agreements
and any applicable state anti-deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally
and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(xiii) All improvements upon the related Mortgaged Property
securing a Mortgage Loan are insured against loss by hazards of
extended coverage in an amount (subject to a customary deductible) at
least equal to the lesser of the outstanding principal balance of such
Mortgage Loan and 100% of the full insurable replacement cost of the
improvements located on the related Mortgaged Property, and if
applicable, except in two cases where there is 100% co-insurance, the
related hazard insurance policy contains appropriate endorsements to
avoid the application of co-insurance and does not permit reduction in
insurance proceeds for depreciation. If any portion of the related
Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal
Register by the Flood Emergency Management Agency as having special
flood hazards, and flood insurance was available, a flood insurance
policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not
less than the least of (1) the outstanding principal balance of such
Mortgage Loan, (2) the full insurable value of such Mortgaged Property,
(3) the maximum amount of insurance available under the National Flood
Insurance Act of 1968, as amended, and (4) 100% of the replacement cost
of the improvements located on the related Mortgage Property. All
<PAGE>
-3-
other insurance required under the Mortgage for such Mortgage Loan is
in full force and effect with respect to the related Mortgaged
Property.
(xiv) The related Mortgaged Property was subject to one or
more environmental site assessments (or an update of a previously
conducted assessment), which was (were) performed on behalf of the
Seller, or as to which the related report was delivered to the Seller
in connection with its origination or acquisition of such Mortgage
Loan; and the Seller, having made no independent inquiry other than
reviewing the resulting report(s) and/or employing an environmental
consultant to perform the assessment(s) referenced herein, has no
knowledge of any material and adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed
in the related report(s). The Seller has not taken any action with
respect to such Mortgage Loan or the related Mortgaged Property that
could subject the Purchaser, or its successors and assigns in respect
of the Mortgage Loan, to any liability under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") or any other applicable federal, state or local
environmental law, and the Seller has not received any actual notice of
a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property
that was not disclosed in the related report.
(xv) Such Mortgage Loan is not cross-collateralized with a
mortgage loan outside the Mortgage Pool.
(xvi) The terms of the Mortgage and the Mortgage Note for such
Mortgage Loan have not been impaired, waived, altered or modified in
any material respect, except as specifically set forth in the related
Mortgage File.
(xvii) There are no delinquent taxes, ground rents, water
charges, sewer rents, insurance premiums, assessments or other similar
outstanding charges affecting the related Mortgaged Property.
(xviii) Except in the case of Mortgage Loans as to which the
interest of the related mortgagor in the related Mortgaged Property is
a leasehold estate, the interest of the related mortgagor in each
related Mortgaged Property consists of a fee simple estate in real
property.
(xix) Such Mortgage Loan is a whole loan and not a
participation interest.
(xx) The assignment of the related Mortgage referred to in
clause (iii) of Exhibit B constitutes the legal, valid and binding
assignment of such Mortgage from the relevant assignor to the assignee,
and the assignment of the related assignment of leases, if any,
referred to in clause (v) of Exhibit B constitutes the legal, valid and
binding assignment thereof from the relevant assignor to the Trustee.
<PAGE>
-4-
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan that
were required to be delivered to the mortgagee under the terms of the
related loan documents, have been received and, to the extent of any
remaining balances thereof are in the possession, or under the control,
of the Seller or its agents (which shall include the Master Servicer).
(xxii) As of the date of origination of such Mortgage Loan
and, to the actual knowledge of the Seller, as of the Closing Date, the
related Mortgaged Property was and is free and clear of any mechanics'
and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage.
(xxiii) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at
the time of origination of such Mortgage Loan lies outside the
boundaries and building restriction lines of such property to any
material extent (unless affirmatively covered by the title insurance
referred to in paragraph (vi) above); no improvements on adjoining
properties materially encroach upon such Mortgaged Property to any
material extent; and no improvement located on or forming part of such
Mortgaged Property is in material violation of any applicable zoning
laws or ordinances (except to the extent that they may constitute legal
non-conforming uses).
(xxiv) To the extent required under applicable law as of the
Closing Date, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent
necessary to ensure the enforceability of such Mortgage Loan.
(xxv) There is no material default, breach or event of
acceleration existing under the related Mortgage or Mortgage Note, and
the Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute such a material default, breach or event of acceleration;
provided, however, that this representation and warranty does not cover
any default, breach or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and
warranty made by the Seller in any of paragraphs (iv), (xiv), (xvii),
(xxi), (xxiii) and (xxix) of this Exhibit C.
(xxvi) If the Mortgage Loan is an ARM Loan, all of the terms
of the related Mortgage Note pertaining to interest rate adjustments,
payment adjustments and adjustments of the principal balance are
enforceable, such adjustments will not affect the priority of the
mortgage lien, and all such adjustments and all calculations made
before the Cut-off Date were made correctly and in full compliance with
the terms of the related Mortgage and Mortgage Note.
<PAGE>
-5-
(xxvii) The Mortgage Loan does not contain any equity
participation by the lender or provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property.
(xxviii) No holder of the Mortgage Loan has, to the Seller's
knowledge, advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Loan.
(xxix) To the Seller's knowledge, based on due diligence
customarily performed in the origination of comparable mortgage loans,
as of the date of origination of the Mortgage Loan, (A) the related
mortgagor was in possession of all material licenses, permits and
authorizations required by applicable laws for the ownership and
operation of the related Mortgaged Property as it was then operated and
(B) all such licenses, permits and authorizations were valid and in
full force and effect.
(xxx) The servicing and collection practices used with respect
to the Mortgage Loan have complied with applicable law in all material
respects and are consistent with the servicing standard set forth in
Section 3.01 of the Pooling and Servicing Agreement.
(xxxi) The related Mortgage or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in paragraph (xii)) such as to
render the rights and remedies of the holders thereof adequate for the
practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby.
(xxxii) The provisions of the related Mortgage provide that
insurance proceeds and condemnation proceeds will be applied either to
restore or repair the Mortgaged Property or to repay the principal of
the Mortgage Loan or otherwise at the option of the mortgagee.
(xxxiii) The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent
principal amount of the Mortgage Loan and either: (A) such Mortgage
Loan is secured by an interest in real property having a fair market
value (1) at the date the Mortgage Loan was originated at least equal
to 80 percent of the original principal balance of the Mortgage Loan or
(2) at the Closing Date at least equal to 80 percent of the principal
balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first
be reduced by (X) the amount of any lien on the real property interest
that is senior to the Mortgage Loan and (Y) a proportionate amount of
any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in clauses (1)
and (2) of this paragraph (xxxiii) shall be made on a pro rata basis in
accordance with the fair market values of the
<PAGE>
-6-
Mortgaged Properties securing such cross-collateralized Mortgage Loans;
or (B) substantially all the proceeds of such Mortgage Loan were used
to acquire, improve or protect the real property which served as the
only security for such Mortgage Loan (other than a recourse feature or
other third party credit enhancement within the meaning of Treasury
Regulations Section 1.860G-2(a)(1)(ii)).
(xxxiv) Any Mortgage Loan that was "significantly modified"
prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (A) was modified as a result of the
default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the
Mortgage Loan was originated) or clause (A)(2) of paragraph (xxxiii),
including the proviso thereto.
(xxxv) To the Seller's actual knowledge, there are no pending
or threatened actions, suits or proceedings by or before any court or
governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined
adversely to such Mortgagor or Mortgaged Property, would materially and
adversely affect the value of the Mortgaged Property or the ability of
the Mortgagor to pay principal, interest or any other amounts due under
such Mortgage Loan.
(xxxvi) If such Mortgage Loan is secured in whole or in part
by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (or portion thereof) (a "GROUND LEASE"), but not by
the related fee interest in such Mortgaged Property (or portion
thereof) (the "FEE INTEREST"):
(A) To the actual knowledge of the Seller, such Ground
Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest
of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material
change in the terms of such Ground Lease since its
recordation, with the exception of written
instruments which are a part of the related Mortgage
File;
(B) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with,
the related Mortgage, other than the related Fee
Interest and Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and
assigns upon notice to, but without the consent of,
the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is
further assignable by the Purchaser and its
successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor,
except with respect to one Mortgage Loan, with
respect to
<PAGE>
-7-
which any further assignment requires the consent of
the lessor, but which consent cannot be unreasonably
withheld;
(D) At the Closing Date, such Ground Lease is in full
force and effect and no default has occurred under
such Ground Lease, nor to the actual knowledge of the
Seller, is there any existing condition which, but
for the passage of time or the giving of notice, or
both, would result in a default under the terms of
such Ground Lease;
(E) Such Ground Lease requires the lessor thereunder to
give notice of any default by the lessee to the
mortgagee, provided that the mortgagee has provided
the lessor with notice of its lien in accordance with
the provisions of such Ground Lease, and such Ground
Lease, or an estoppel letter received by the
mortgagee from the lessor, further provides that no
notice of termination given under such Ground Lease
is effective against the mortgagee unless a copy has
been delivered to the mortgagee in the manner
described in such Ground Lease;
(F) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under such
Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice
of any such default, before the lessor thereunder may
terminate such Ground Lease;
(G) Such Ground Lease has an original term (including any
extension options set forth therein) which extends
not less than ten (10) years beyond the Stated
Maturity Date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance
proceeds other than in respect of a total or
substantially total loss or taking, will be applied
either to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or
a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or
restoration progresses (except in such cases where a
provision entitling another party to hold and
disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial
mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon, with any
excess proceeds available for application at the
option of the mortgagee; and
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender;
and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of
an
<PAGE>
-8-
uncured default, to disturb the possession, interest
or quiet enjoyment of any lessee in the relevant
portion of the Mortgaged Property subject to such
Ground Lease for any reason, or in any manner, which
would materially adversely affect the security
provided by the related Mortgage.
(xxxvii) If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage.
(xxxviii) The related Mortgage Note or Mortgage does not
require the mortgagee to release all or any portion of the related
Mortgaged Property from the lien of the related Mortgage except upon
payment in full of all amounts due under such Mortgage Loan.
It is understood and agreed that the representations and
warranties set forth in this Exhibit C shall survive delivery of the respective
Mortgage Files to the Purchaser, the Trustee and/or the Interim Custodian and
shall inure to the benefit of the Purchaser, and its successors and assigns
(including without limitation the Trustee and the holders of the Certificates)
notwithstanding any restrictive or qualified endorsement or assignment.
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
CERTIFICATE OF OFFICER OF GMAC COMMERCIAL MORTGAGE CORPORATION ("GMACCM")
I, _________________, a _________________ of GMACCM (the "Seller"),
hereby certify as follows:
The Seller is a corporation duly organized and validly existing under
the laws of the State of California.
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation
or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Seller and his genuine signature is set
forth opposite his name:
NAME OFFICE SIGNATURE
---- ------ ---------
_________________ __________________ __________________
_________________ __________________ __________________
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of October 30, 1996
(the "Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
July 10, 1996.
By:_____________________________
Name:
Title:
I, [name], [title], hereby certify that ________________ is a duly
elected or appointed, as the case may be, qualified and acting ______________ of
the Seller and that the signatures appearing above is her genuine signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
November 7, 1996.
By:_____________________________
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF GMAC COMMERCIAL MORTGAGE CORPORATION
In connection with the execution and delivery by GMAC Commercial
Mortgage Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
October 30, 1996 (the "Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. and the Seller, the Seller hereby certifies that (i) the
representations and warranties of the Seller in the Purchase Agreement are true
and correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Purchase Agreement.
Certified this 7th day of November, 1996.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:_____________________________
Name:
Title:
<PAGE>
EXHIBIT D-3
FORM OF OPINION OF COUNSEL TO THE SELLER
November 7, 1996
GMAC Commercial Mortgage Securities, Inc.
650 Dresher Road
Horsham, Pennsylvania 19044-8015
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036-8293
Re: Mortgage Loan Purchase Agreement, dated as of October
30, 1996, between GMAC Commercial Mortgage Corporation
and GMAC Commercial Mortgage Securities, Inc.
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as counsel of
GMAC Commercial Mortgage Corporation (the "Seller"), pursuant to Section 8(e) of
the Mortgage Loan Purchase Agreement, dated as of October 30, 1996 (the
"Purchase Agreement"), between GMAC Commercial Mortgage Securities, Inc. (the
"Purchaser") and the Seller, relating to the sale by the Seller of certain
mortgage loans (the "Mortgage Loans"). Capitalized terms not otherwise defined
herein have the meanings set assigned to them in the Purchase Agreement.
I (or attorneys under my supervision) have examined originals or
copies, certified or otherwise identified to my satisfaction, of such corporate
records of the Seller, certificates of public officials, officers of the Seller
and other persons and other documents, agreements and instruments and have made
such other investigations as I have deemed necessary or appropriate for purposes
of this opinion.
<PAGE>
Based upon the foregoing, I am of the opinion that:
1. The Seller is a corporation validly existing under the laws of
the State of California, with full power authority under such
laws to own its properties and assets and to conduct its
business as contemplated in the Purchase Agreement and to
enter into and perform its obligations under the Purchase
Agreement.
2. The Purchase Agreement has been duly authorized, executed and
delivered by the Seller and, upon due authorization, execution
and delivery by the Purchaser, will constitute a valid, legal
and binding agreement of the Seller, enforceable against the
Seller in accordance with its terms, except as enforceability
may be limited by (a) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
relating to or affecting the enforcement of creditors rights
generally, (b) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and
(c) public policy considerations underlying the securities
laws, to the extent such public policy considerations limit
the enforceability of the provisions of such agreement that
purport to provide indemnification from securities law
liabilities.
3. No consent, approval, authorization or order of any court,
governmental agency or body is required in connection with the
execution and delivery by the Seller of the Purchase
Agreement, except for those consents, approvals,
authorizations or orders that previously have been obtained.
4. The transfer of the Mortgage Loans as provided in the Purchase
Agreement and the fulfillment of the terms of the Purchase
Agreement will not conflict with or result in a violation of
the Certificate of Incorporation or the By-Laws of the Seller
or any agreement or instrument, order, writ, judgment or
decree known to us to which the Seller is a party or is
subject.
5. To the best of our knowledge, there are no actions or
proceedings against the Seller, pending (with regard to which
the Seller has received service of process) or overtly
threatened in writing before any court, governmental agency or
arbitrator which affect the enforceability of the Purchase
Agreement, or which would draw into question the validity of
the Purchase Agreement or any action taken or to be taken in
connection with the Seller's obligations contemplated therein,
or which would materially impair the Seller's ability to
perform under the terms of the Purchase Agreement.
<PAGE>
6. Nothing has come to our attention that would lead us to
believe that, insofar as it relates to the characteristics of
the Mortgage Loans, the real properties that secure such or
the related borrowers or relates to the description of the
Seller, the Prospectus (other than any accounting, financial
or statistical information included therein, as to which no
opinion is expressed), at the date of the Prospectus
Supplement or at the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
The opinions expressed herein are limited to the laws of the State of
California, the State of New York and the federal law of the United States.
This opinion is given to you for your sole benefit, and no other person
or entity is entitled to rely hereon without our express written consent.
Very truly yours,
EXHIBIT 99.2
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of October 30, 1996, between ContiTrade Services, L.L.C. as seller
(the "Seller") and GMAC Commercial Mortgage Securities, Inc. as purchaser (the
"Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a Division of McGraw-Hill Companies, Inc. and/or
Moody's Investor's Services, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Registered Certificates") will be registered
under the Securities Act of 1933, as amended (the "Securities Act"). The Trust
Fund will be created and the Certificates will be issued pursuant to a pooling
and servicing agreement to be dated as of November 1, 1996 (the "Pooling and
Servicing Agreement"), among the Purchaser as depositor, GMAC Commercial
Mortgage Corporation as master servicer (in such capacity, the "Master
Servicer") and special servicer (in such capacity, the "Special Servicer"), and
State Street Bank and Trust Company as trustee (in such capacity, the
"Trustee"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell the Certificates to Goldman, Sachs & Co.
("Goldman") and Morgan Stanley & Co. Incorporated ("Morgan", and together with
Goldman, the "Underwriters") pursuant to, in the case of the Registered
Certificates, an underwriting agreement dated the date hereof (the "Underwriting
Agreement") and, in the case of the remaining Certificates (the "Non-Registered
Certificates"), a certificate purchase agreement dated the date hereof (the
"Certificate Purchase Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. AGREEMENT TO PURCHASE.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on November 7, 1996 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on November 1, 1996 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$243,270,074, subject to a variance of plus or minus 5.0%. The purchase price
for the Mortgage Loans shall be determined and paid to the
<PAGE>
Seller in accordance with the terms of an allocation agreement dated the date
hereof (the "Allocation Agreement"), to which the Seller and Purchaser, among
others, are parties.
SECTION 2. CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, subject only to receipt by the
Seller of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdback for transaction expenses in accordance with the Allocation
Agreement), the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including all interest and principal received or
receivable by the Seller on or with respect to the Mortgage Loans after the
Cut-off Date, together with all of the Seller's right, title and interest in and
to the proceeds of any related title, hazard, or other insurance policies and
any escrow, reserve or other comparable accounts related to the Mortgage Loans.
The Purchaser shall be entitled to (and, to the extent received by or on behalf
of the Seller, the Seller shall deliver or cause to be delivered to or at the
direction of the Purchaser) all scheduled payments of principal and interest due
on the Mortgage Loans after the Cut-off Date, and all other recoveries of
principal and interest collected thereon after the Cut-off Date. All scheduled
payments of principal and interest due thereon on or before the Cut-off Date and
collected after the Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection
(a) above, the Seller hereby acknowledges that it is obligated to deliver to and
deposit with, or cause to be delivered to and deposited with, and further
represents and warrants that it has so delivered to and deposited with, or
caused to be delivered to and deposited with, State Street Bank and Trust
Company (the "Interim Custodian") the Mortgage File (as described on Exhibit B
hereto) for each Mortgage Loan so assigned. If the Seller cannot deliver, or
cause to be delivered, as to any Mortgage Loan, the original or a copy of any of
the documents and/or instruments referred to in clauses (ii), (iv), (viii),
(xi)(A) and (xii) of Exhibit B, with evidence of recording thereon, solely
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 this Section 2(b) shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Interim
Custodian, 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 Purchaser (or any subsequent owner of
the affected Mortgage Loan, including without limitation the Trustee) within 180
days of the Closing Date (or within such longer period after the Closing Date as
the Purchaser (or such subsequent owner) may consent to, which consent shall not
be unreasonably withheld so long as the Seller has provided the Purchaser (or
such subsequent owner) with evidence of such recording or filing, as the case
may be, or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no
-2-
<PAGE>
less often than quarterly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy). If the
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 (ix) of Exhibit B solely because such policy has not yet been issued, the
delivery requirements of this Section 2(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 Seller has delivered to the
Interim Custodian a commitment for title insurance "marked-up" at the closing of
such Mortgage Loan, and the Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), 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 Exhibit B 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. On the Closing Date, upon notification from the Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdback
for transaction expenses in accordance with the Allocation Agreement) has been
received by the Seller, the Interim Custodian shall be authorized to release to
the Purchaser or its designee all of the Mortgage Files in the Interim
Custodian's possession relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all
costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of Exhibit B; provided that the
Seller shall not be responsible for actually recording or filing any such
document or instrument. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession of
the Seller (or under its control) with respect to the Mortgage Loans, shall
(unless they are held by a sub-servicer that shall, as of the Closing Date,
begin acting on behalf of the Master Servicer pursuant to a written agreement
between such parties) be delivered by the Seller (or its agent) to the Purchaser
(or its designee) no later than the Closing Date. If a sub-servicer shall, as of
the Closing Date, begin acting on behalf of the Master Servicer with respect to
any Mortgage Loan pursuant to a written agreement between such parties, the
Seller shall deliver a copy of the related Servicing File to the Master
Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale.
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SECTION 3. EXAMINATION OF MORTGAGE LOAN FILES AND DUE DILIGENCE
REVIEW.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER.
(a) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit
C, with such changes or modifications as may be permitted or required by the
Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents
and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a limited liability company, duly
authorized, validly existing and in good standing under the laws of the
State of Delaware, and is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to
ensure the enforceability of each Mortgage Loan and to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this
Agreement by the Seller, will not violate the Seller'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) The Seller 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 Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller 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) The Seller 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
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not constitute a violation of, any law, any 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 the Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Seller to perform
its obligations under this Agreement or the financial condition of the
Seller.
(vi) No litigation is pending with regard to which the Seller
has received service of process or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit the
Seller from entering into this Agreement or, in the Seller's good faith
and reasonable judgment, is likely to materially and adversely affect
either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, ContiFinancial Services Corporation, ING Baring (U.S.)
Corporation, and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the
Mortgage Loans or the consummation of any of the other transactions
contemplated hereby.
(viii) Neither the Seller nor anyone acting on its behalf has
(A) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (B) solicited any offer to buy or
to accept a pledge, disposition or other transfer of any Certificate,
any interest in any Certificate or any other similar security from any
person in any manner, (C) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (D) made any
general solicitation by means of general advertising or in any other
manner with respect to any Certificate, any interest in any Certificate
or any similar security, or (E) taken any other action, that (in the
case of any of the acts described in clauses (A) through (E) above)
would constitute or result in a violation of the Securities Act or any
state securities law relating to or in connection with the issuance of
the Certificates or require registration or qualification pursuant to
the Securities Act or any state securities law of any Certificate not
otherwise intended to be a Registered Certificate. In addition, the
Seller will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any of the Certificates or interests therein. For purposes
of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans
or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the
information set forth on pages A-9 through A-45, inclusive, of Annex A
to the Prospectus Supplement (as defined in Section 9) (the "Loan
Detail") and, to the extent consistent therewith, the information set
forth on the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it relates to the Mortgage Loans and/or
the Seller and does not represent a restatement or aggregation of the
information on the Loan Detail, the information set forth in the
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Prospectus Supplement and the Memorandum (also as defined in Section 9)
under the headings "Summary of the Prospectus Supplement--The Mortgage
Asset Pool", "Risk Factors--The Mortgage Loans" and "Description of the
Mortgage Asset Pool", set forth on Annex A to the Prospectus Supplement
and (to the extent it contains information consistent with that on such
Annex A) set forth on the Diskette, does not contain any untrue
statement of a material fact or (in the case of the Memorandum, when
read together with the other information specified therein as being
available for review by investors) omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in subsection
(b) above which materially and adversely affects the interests of the Purchaser
or a breach of any of the representations and warranties made pursuant to
subsection (a) above and set forth in Exhibit B which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the Purchaser
or its successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PURCHASER.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser'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) The Purchaser 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 Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser 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.
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<PAGE>
(v) The Purchaser 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, any 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 the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would
prohibit the Purchaser from entering into this Agreement or, in the
Purchaser's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the
Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
ContiFinancial Services Corporation, ING Baring (U.S.) Corporation and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. REPURCHASES.
(a) Within 90 days of the earlier of discovery or receipt of notice by
the Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement) in respect of the
Mortgage File for any Mortgage Loan or a breach of any representation or
warranty made pursuant to Section 4(a) and set forth in Exhibit C, which Defect
or breach, as the case may be, materially and adversely affects the value of any
Mortgage Loan or the interests therein of the Purchaser or its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), the Seller shall cure such Defect or breach, as the case may be,
in all material respects or repurchase the affected Mortgage Loan from the then
owner(s) thereof at the applicable Purchase Price (as defined in the Pooling and
Servicing Agreement) by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
If the Seller is notified of a defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes.
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(b) Notwithstanding Section 6(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
(c) In connection with any repurchase of a Mortgage Loan contemplated
by this Section 6, the then owner(s) thereof shall tender or cause to be
tendered promptly to the Seller, upon delivery of a receipt executed by the
Seller, the related Mortgage File and Servicing File, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Purchaser or the Trustee shall be endorsed or assigned, as the case may be, to
the Seller in the same manner. The form and sufficiency of all such instruments
and certificates shall be the responsibility of the Seller.
(d) This Section 6 provides the sole remedies available to the
Purchaser, and its successors and assigns (including, without limitation the
Trustee and the holders of the Certificates) respecting any Defect in a Mortgage
File or any breach of any representation or warranty made pursuant to Section
4(a) and set forth in Exhibit C, or in connection with the circumstance
described in Section 6(b). If the Seller defaults on its obligations to
repurchase any Mortgage Loan in accordance with Section 6(a) or 6(b) or disputes
its obligation to repurchase any Mortgage Loan in accordance with either such
subsection, the Purchaser may take such action as is appropriate to enforce such
payment or performance, including, without limitation, the institution and
prosecution of appropriate proceedings. The Seller shall reimburse the Purchaser
for all necessary and reasonable costs and expenses incurred in connection with
such enforcement.
SECTION 7. CLOSING.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Thacher Proffitt & Wood, Two World Trade Center, New
York, New York 10048 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the
Seller specified herein shall be true and correct as of the
Closing Date, and the Aggregate Cut-off Date Balance shall be
within the range permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 of this
Agreement (the "Closing Documents"), in such forms as are
agreed upon and acceptable to the Purchaser, shall be duly
executed and delivered by all signatories as required pursuant
to the respective terms thereof;
(iii) The Seller shall have delivered and released to
the Interim Custodian, the Purchaser or the Purchaser's
designee, as the case may be, all documents and funds required
to be so delivered pursuant to Section 2 hereof;
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(iv) The result of any examination of the Mortgage
Files and Servicing Files performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory
to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement
required to be complied with on or before the Closing Date
shall have been complied with, and the Seller shall have the
ability to comply with all terms and conditions and perform
all duties and obligations required to be complied with or
performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all
fees, costs and expenses payable by it to the Purchaser
pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the
Certificate Purchase Agreement shall have been terminated in
accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. CLOSING DOCUMENTS.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of Delaware, dated not earlier than 30 days
prior to the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized signatory of the
managing member of the Seller and dated the Closing Date, and upon which the
Purchaser and each Underwriter may rely;
(e) A written opinion of counsel for the Seller, substantially in the
form of Exhibit D- 3 hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the Purchaser
and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested
by the Rating Agencies in connection with the issuance of the Certificates, each
of which shall include the Purchaser and each Underwriter as an addressee;
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(g) A guaranty agreement substantially in the form of Exhibit E hereto
(the "Guaranty Agreement") duly executed and delivered by ContiFinancial
Corporation (the "Guarantor") in favor of the Purchaser and the other
beneficiaries referred to therein; and
(h) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. INDEMNIFICATION.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, its
officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding the Seller or the Mortgage Loans contained in the Prospectus
Supplement or the Memorandum under the headings "Summary of Prospectus
Supplement - The Mortgage Asset Pool", "Risk Factors - The Mortgage Loans"
and/or "Description of the Mortgage Asset Pool" or contained on Annex A to the
Prospectus Supplement (exclusive of the Loan Detail), and such information does
not represent a restatement or aggregation of information contained in the Loan
Detail; or (iii) such untrue statement, alleged untrue statement, omission or
alleged omission arises out of or is based upon a breach of the representations
and warranties of the Seller set forth in or made pursuant to Section 4;
provided, that the indemnification provided by this Section 9 shall not apply to
the extent that such untrue statement of a material fact or omission of a
material fact necessary to make the statements made, in light of the
circumstances in which they were made, not misleading, was made as a result of
an error in the manipulation of, or calculations based upon, the Loan Detail.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 33-94448 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated October 22,
1996, as supplemented by the prospectus supplement dated October
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30, 1996 (the "Prospectus Supplement"), relating to the Registered Certificates;
"Memorandum" shall mean the private placement memorandum dated October 30, 1996,
relating to the NonRegistered Certificates; "Computational Materials" shall have
the meaning assigned thereto in the no-action letter dated May 20, 1994 issued
by the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters"). This indemnity
agreement will be in addition to any liability which the Seller may otherwise
have.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller (the "indemnifying party") under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; PROVIDED,
HOWEVER, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election to assume the defense of such action
and approval by the indemnified party of counsel, which approval will not be
unreasonably withheld, the indemnifying party will not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the indemnifying
party, representing all the indemnified parties under Section 9(a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii).
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(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by PRO RATA
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 9, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
9 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. COSTS.
Costs relating to the transactions contemplated hereby shall be borne
by the respective parties hereto in accordance with the Allocation Agreement.
SECTION 11. NOTICES.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at
650 Dresher Road, P.O. Box 1015, Horsham, Pennsylvania 19044-8015, Attention:
Ms. Elisa George, facsimile no. (215) 682-3425, with a copy to GMAC Mortgage
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Corporation, 3031 West Grand Boulevard, Detroit, Michigan 48232, Attention:
Robert Schwartz, facsimile no. (313) 974-0685 or such other address or facsimile
number as may hereafter be furnished to the Seller in writing by the Purchaser;
and if to the Seller, addressed to ContiTrade Services, L.L.C. at 277 Park
Avenue, 38th Floor, New York, New York 10172, Attention: Chief Counsel,
facsimile no. (212) 207-2985 or to such other address or facsimile number as the
Seller may designate in writing to the Purchaser.
SECTION 12. THIRD PARTY BENEFICIARIES.
Each of the officers, directors and controlling persons
referred to in Section 9 hereof is an intended third party beneficiary of the
covenants and indemnities of the Seller set forth in Section 9 of this
Agreement. It is acknowledged and agreed that such representations, warranties,
covenants and indemnities may be enforced by or on behalf of any such person or
entity against the Seller to the same extent as if it was a party hereto.
SECTION 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14. SEVERABILITY OF PROVISIONS.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF
-13-
<PAGE>
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 17. FURTHER ASSURANCES.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. SUCCESSORS AND ASSIGNS.
The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. AMENDMENTS.
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary hereof without the prior
consent of that person.
Any amendment, rescission, waiver, modification or alteration of the
obligations of the Seller hereunder that constitutes a Guaranty Obligation (as
defined in the Guaranty Agreement) of the Guarantor under the Guaranty Agreement
will only be effective upon the written consent thereto by both the Guarantor
and the Purchaser. The Seller hereby undertakes to provide timely notice of any
such proposed amendment, rescission, waiver, modification or alteration to, and
will use its best efforts to obtain the consent of, the Guarantor to such
amendment, rescission, waiver, modification or alteration.
-14-
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
CONTITRADE SERVICES, L.L.C.
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:_______________________________
Name:
Title:
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip
code) of the related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date
and whether such Mortgage Loan is an ARM Loan, a
Fixed-Rate Loan or a Step-Down Loan;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B)
Stated Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first
Due Date following the Cut-off Date;
(ix) in the case of an ARM Loan, the (A) Index, (B) Gross
Margin, (C) first Mortgage Rate adjustment date
following the Cut-off Date and the frequency of
Mortgage Rate adjustments, and (D) maximum and
minimum lifetime Mortgage Rate, if any; and
(x) the Loan Group.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
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.
<PAGE>
<TABLE>
CONTITRADE MORTGAGE LOAN SCHEDULE
<CAPTION>
Loan Control Property
Counter Number Property Name Property Address Property City State
<S> <C> <C> <C> <C> <C>
1 CONT1010 Saddleback Apartments 4722 East Bell Road Phoenix AZ
2 CONT1020 Sierra Creek Apartments 501 W. Central Texas Expwy Kileen TX
3 CONT1080 Mill Park Apartments 2900 Mc Cann Road Longview TX
4 CONT1790 Heather Glen Care Center 5910 West Northern Avenue Glendale AZ
5 CONT1150 Misty Ridge Apartments 301 West Hawkins Parkway Longview TX
6 CONT1320 Plantation House Apartments 2601 Hudnall Street Dallas TX
7 CONT1930 15-17 Microlab Road 15-17 Microlab Road Livingston NJ
8 CONT1720 Sterling Estates 9300 West 79th Street Justice IL
12 CONT1970 Pigeon Forge Factory Outlet 2850 Parkway (US Hwy 441) Pigeon Forge TN
13 CONT1730 Whippletree Village 525 North McHenry Road Wheeling IL
21 CONT1030 Westwood Villa Apartments 2901 S. Sepulveda Los Angeles CA
22 CONT1180 Tulip Ave Apartments 66-70 Tulip Ave. Floral Park NY
23 CONT1360 Merrick Road Apartments 700 Merrick Road Baldwin NY
24 CONT1370 555 Front Street 555 Front Street Heampstead NY
25 CONT1620 Broadway Apartments 56 Broadway Freeport NY
26 CONT1640 Tulip Ave Apartments 62 Tulip Ave Floral Park NY
27 CONT1710 26 Burr Avenue 26 Burr Avenue Village of Hempstead NY
30 CONT1040 The Meadows 14470 East 13 Avenue Aurora CO
31 CONT1050 Oxford Center 1172-1198Third Ave+330-336oxfd Chula Vista CA
32 CONT1190 30 North Long Beach Ave 30 North Long Beach Ave Freeport NY
33 CONT1460 48 South Long Beach Road 48 South Long Beach Road Freeport NY
34 CONT1630 77 Terrace Avenue 77 Terrace Avenue Hempstead NY
35 CONT1660 Lincoln Blvd. Apartments 21 Lincoln Blvd. Hempstead NY
36 CONT1670 193 Washington Street 193 Washington Street Hempstead NY
37 CONT1690 43 Burr Avenue 43 Burr Avenue Hempstead NY
38 CONT1700 Van Cott Apartments 85 Van Cott Street Hempstead NY
39 CONT1060 Torpedo Factory Landing PH V 101 N. Union Street Alexandria VA
43 CONT2010 Otter Run Apartments 1025 Assisi Lane Atlantic Beach FL
44 CONT1070 Highland Industrial Park One Highland Industrial Park Peekskill NY
45 CONT2000 The Inn at Jackson Hole 3345 West McCollister Drive Teton Village WY
50 CONT2070 San Francisco Loc-N-Stor 466 Townsend Street San Francisco CA
56 CONT2020 Mallard Cove Apartments 2900 State Road A1A Atlantic Beach FL
59 Aggregate Loan Level Info.
59A CONT1940 Life Center of Galax 112 Painter Street Galax VA
59B CONT1890 Life Center of Wilmington 2520 Troy Drive Wilmington NC
59C CONT1920 Keystone Treatment Center 1010 E. Second Street Canton SD
63 CONT1100 Safeguard Self Storage 3301 North Causeway Blvd. Metairie LA
64 CONT1110 Villages at McClintock Apts. 1701 East Don Carlos Avenue Tempe AZ
68 CONT1120 Filipello Self Storage 43 Page Street San Francisco CA
69 CONT1130 Shirlington Self Storage 2710 S. Nelson Street Arlington VA
73 CONT1160 Claridge Court Apartments 400 South Dupont Parkway New Castle DE
75 CONT2030 Sunset Square Shopping Center 1897 Highland Avenue Clearwater FL
76 CONT1220 Sterling House Assisted Living 751 N. Somerset Terrace Olathe KS
78 CONT1240 Morena Self Storage 908 Sherman Street San Diego CA
79 CONT1250 Champions Business Park 13335 Veterans Memorial Houston TX
80 CONT2050 Valley View Health Care Center 2120 North 10th Street Canon City CO
81 CONT2060 Holly Nursing Care Center 320 North 8th Street Holly CO
83 CONT1260 Budget Mini Storage 6512 14th Street West Bradenton FL
84 CONT1270 All American Self Storage 1500 Marshall Avenue St. Paul MN
85 CONT1830 Colwick Tower Office Building 4401 Colwick Road Charlotte NC
86 CONT1280 Mr. Stor-All 316 West Lathrop Road Manteca CA
89 CONT1290 Secure It Self Storage 37 River Street Waltham MA
90 CONT1300 Farrington Manor Apartments 1601 Darr Street Irving TX
91 CONT1850 Heritage Convalescent Center 1009 Clyde Street Amarillo TX
92 CONT1310 Security Public Storage 2975 Pinole Valley Road Pinole CA
93 CONT1860 Poway Garden Self Storage 14260 Garden Road Poway CA
94 CONT1880 Harrison Self Storage 2323 2nd Street Davis CA
95 CONT1330 LaSombra Apartments 1400 East Crosby Road Carrollton TX
96 CONT1340 Cypress Commerce 1700 and 1770 NW 64th Street Fort Lauderdale FL
97 CONT1350 Louetta Mini Storage 6911 Louette Road Spring TX
98 CONT2090 U-Haul Storage (Sterling) 45715 Old Ox Road Sterling VA
99 Aggregate Loan Level Info.
99A CONT3090 Annabelle's Restaurant 4106 Oleander Drive Wilmington NC
99B CONT3091 Annabelle's Restaurant 2735 Park Avenue Petersburg VA
100 CONT1380 Sierra Vista Self Storage 900 E. Wilcox Drive Sierra Vista AZ
101 CONT1400 Security Public Storage 24873 Huntwood Avenue Hayward CA
102 CONT1410 Capital City Self Storage 1700 Pleasant Valley Road Austin TX
103 CONT1420 I Avenue Self Storage 10150 I Avenue Hesperia CA
104 CONT1430 Ambassador Self Storage 1702 South Highway 121 Lewisville TX
105 CONT1390 Arovista Self Storage 270 Arovista Avenue Brea CA
106 CONT1440 Willowbrook Apartments 7135-7165 Raleigh Street Westminster CO
107 CONT1450 67 East Willow Street 67 East Willow Street Millburn NJ
108 CONT3010 U-Haul Storage (Richmond) 2930 North Boulevard Richmond VA
109 CONT1910 Harwin Business Park 9410-9440 Harwin Drive Houston TX
110 CONT1470 State College Self-Storage 5185 Hallmark Parkway San Bernardino CA
111 CONT1480 A Storage Place 8330 Littleton Road North Fort Myers FL
112 CONT3020 U-Haul Storage (Odenton) 1480 Annapolis Road Odenton MD
113 CONT1490 UC Mini Storage 4601 Shattuck Avenue Oakland CA
114 CONT1500 Alpine Self Storage 800 Chambers Avenue Eagle CO
115 CONT1510 Capital Self-Storage 6755 East Golf Links Rd Tucson AZ
116 CONT2040 Colorow Care Center 750 8th Street Olathe CO
117 CONT1520 Boston Self Storage 135 Old Colony Avenue Boston MA
118 CONT1530 Waltham Self Storage 115 Bacon Street Waltham MA
119 CONT1540 Mulberry Hill Apartments 1130 East Mulberry Ave. San Antonio TX
120 CONT3030 U-Haul Storage (Oaklawn Blvd) 5400 Oaklawn Blvd. Prince George VA
122 CONT3040 U-Haul Storage (N Richland) 6404 Browning Drive North Richland Hills TX
123 CONT1550 C & D Mini-Warehouses 191 Deaverview Road Asheville NC
124 CONT1560 Aloha Self Storage 5029 Haltom Road Haltom City TX
126 CONT1950 Dependable Mini Storage 730 Military Parkway Mesquite TX
128 CONT1570 Cedar Hill Self Storage 150 North Clark Road Cedar Hill TX
129 CONT1580 Watson & Taylor Mini Storage 6450-A Spellman Road Houston TX
130 CONT3050 U-Haul Storage (Shreveport) 5919 Financial Plaza Shreveport LA
131 CONT1960 Tyler Street Self Storage 3636 Tyler Street Dallas TX
132 CONT1590 Locker Room Self Storage 5804 N. Denton Highway Haltom City TX
133 CONT1600 All American Store & Lock 1255 Prospect Street Lakewood NY
134 CONT3060 U-Haul Storage (Marrero) 7201 Westbank Expressway Marrero LA
135 CONT1650 Arizona Storage Inns 2929 North 73rd Street Scottsdale AZ
136 CONT3080 U-Haul Storage (Myrtle Beach) 5604 South Kings Highway Myrtle Beach SC
137 CONT3070 U-Haul Storage (Jefferson) 4725 Jefferson Park Road Prince George VA
<CAPTION>
Loan Control Property Interest Rate Original Cut-Off Date
Counter Number Property Name Zip Rate Type Balance Balance
<S> <C> <C> <C> <C> <C> <C> <C>
1 CONT1010 Saddleback Apartments 85032 8.531 Adjustable 13410217 13176907
2 CONT1020 Sierra Creek Apartments 76541 8.531 Adjustable 7531300 7400272
3 CONT1080 Mill Park Apartments 75601 8.531 Adjustable 4725078 4642872
4 CONT1790 Heather Glen Care Center 85301 8.875 Adjustable 2850000 2840738
5 CONT1150 Misty Ridge Apartments 75605 8.531 Adjustable 2672562 2626065
6 CONT1320 Plantation House Apartments 75235 8.531 Adjustable 1795774 1764531
7 CONT1930 15-17 Microlab Road 07039 9.000 Adjustable 1030000 1023762
8 CONT1720 Sterling Estates 60458 8.500 Fixed 24000000 23970819
12 CONT1970 Pigeon Forge Factory Outlet 37863 9.750 Fixed 15400000 15387890
13 CONT1730 Whippletree Village 60090 8.640 Fixed 13000000 12984642
21 CONT1030 Westwood Villa Apartments 90064 8.000 Fixed 7235000 7172700
22 CONT1180 Tulip Ave Apartments 11001 8.000 Fixed 2467500 2450438
23 CONT1360 Merrick Road Apartments 11510 8.000 Fixed 1597500 1586454
24 CONT1370 555 Front Street 11550 8.000 Fixed 1560000 1549213
25 CONT1620 Broadway Apartments 11520 8.000 Fixed 712500 707573
26 CONT1640 Tulip Ave Apartments 11001 8.000 Fixed 550000 546197
27 CONT1710 26 Burr Avenue 11550 8.000 Fixed 138750 137790
30 CONT1040 The Meadows 80011 8.975 Fixed 6500000 6489213
31 CONT1050 Oxford Center 91911 10.000 Fixed 6140000 6130706
32 CONT1190 30 North Long Beach Ave 11520 8.000 Fixed 2442300 2425412
33 CONT1460 48 South Long Beach Road 11520 8.000 Fixed 1372500 1363009
34 CONT1630 77 Terrace Avenue 11550 8.000 Fixed 614600 610350
35 CONT1660 Lincoln Blvd. Apartments 11550 8.000 Fixed 447750 444654
36 CONT1670 193 Washington Street 11550 8.000 Fixed 426750 423799
37 CONT1690 43 Burr Avenue 11550 8.000 Fixed 375000 372407
38 CONT1700 Van Cott Apartments 11550 8.000 Fixed 307380 305255
39 CONT1060 Torpedo Factory Landing PH V 22314 9.000 Fixed 5600000 5558975
43 CONT2010 Otter Run Apartments 32233 8.875 Fixed 5200000 5192191
44 CONT1070 Highland Industrial Park 10566 9.750 Fixed 5150000 5120951
45 CONT2000 The Inn at Jackson Hole 83025 9.670 Fixed 5000000 4991997
50 CONT2070 San Francisco Loc-N-Stor 94107 9.375 Fixed 4400000 4392599
56 CONT2020 Mallard Cove Apartments 32233 8.875 Fixed 4000000 3993992
59 Aggregate Loan Level Info. 11.250 Fixed 3800000 3766882
59A CONT1940 Life Center of Galax 24333
59B CONT1890 Life Center of Wilmington 28403
59C CONT1920 Keystone Treatment Center 57013
63 CONT1100 Safeguard Self Storage 70002 10.250 Fixed 3300000 3292789
64 CONT1110 Villages at McClintock Apts. 85281 10.500 Fixed 3300000 3271473
68 CONT1120 Filipello Self Storage 94102 9.650 Fixed 3000000 2985311
69 CONT1130 Shirlington Self Storage 22206 8.875 Fixed 2875000 2853504
73 CONT1160 Claridge Court Apartments 19720 8.000 Fixed 2540000 2515312
75 CONT2030 Sunset Square Shopping Center 34621 9.000 Fixed 2300000 2295881
76 CONT1220 Sterling House Assisted Living 66062 9.875 Fixed 2300000 2289155
78 CONT1240 Morena Self Storage 92110 10.000 Fixed 2200000 2191570
79 CONT1250 Champions Business Park 77014 9.625 Fixed 2200000 2187329
80 CONT2050 Valley View Health Care Center 81212 10.125 Fixed 1200000 1196877
81 CONT2060 Holly Nursing Care Center 81047 10.125 Fixed 937500 935060
83 CONT1260 Budget Mini Storage 34207 9.375 Fixed 2100000 2089236
84 CONT1270 All American Self Storage 55104 9.875 Fixed 2050000 2040334
85 CONT1830 Colwick Tower Office Building 28211 10.125 Fixed 2000000 1995536
86 CONT1280 Mr. Stor-All 95336 9.625 Fixed 2000000 1990166
89 CONT1290 Secure It Self Storage 02154 8.875 Fixed 1850000 1834380
90 CONT1300 Farrington Manor Apartments 75061 9.250 Fixed 1810000 1798907
91 CONT1850 Heritage Convalescent Center 79106 10.000 Fixed 1800000 1794505
92 CONT1310 Security Public Storage 94564 8.875 Fixed 1800000 1786541
93 CONT1860 Poway Garden Self Storage 92064 9.625 Fixed 1750000 1745749
94 CONT1880 Harrison Self Storage 95616 10.125 Fixed 1700000 1694919
95 CONT1330 LaSombra Apartments 75006 9.375 Fixed 1700000 1694236
96 CONT1340 Cypress Commerce 33316 8.500 Fixed 1700000 1684748
97 CONT1350 Louetta Mini Storage 77379 9.000 Fixed 1675000 1662729
98 CONT2090 U-Haul Storage (Sterling) 20166 9.000 Fixed 1834058 1580485
99 Aggregate Loan Level Info. 11.950 Fixed 1600000 1598372
99A CONT3090 Annabelle's Restaurant 28403
99B CONT3091 Annabelle's Restaurant 23805
100 CONT1380 Sierra Vista Self Storage 85635 9.875 Fixed 1550000 1542691
101 CONT1400 Security Public Storage 94544 9.500 Fixed 1500000 1492470
102 CONT1410 Capital City Self Storage 78741 9.000 Fixed 1500000 1487591
103 CONT1420 I Avenue Self Storage 92345 8.750 Fixed 1500000 1487076
104 CONT1430 Ambassador Self Storage 75067 8.750 Fixed 1500000 1487076
105 CONT1390 Arovista Self Storage 92621 10.000 Fixed 1475000 1470497
106 CONT1440 Willowbrook Apartments 80030 8.000 Fixed 1475000 1460663
107 CONT1450 67 East Willow Street 07041 9.750 Fixed 1400000 1382436
108 CONT3010 U-Haul Storage (Richmond) 23220 9.000 Fixed 1463938 1324125
109 CONT1910 Harwin Business Park 77036 10.125 Fixed 1300000 1294904
110 CONT1470 State College Self-Storage 92407 9.350 Fixed 1300000 1292163
111 CONT1480 A Storage Place 33903 8.875 Fixed 1300000 1289024
112 CONT3020 U-Haul Storage (Odenton) 21113 9.000 Fixed 1346800 1227246
113 CONT1490 UC Mini Storage 94609 8.875 Fixed 1250000 1240654
114 CONT1500 Alpine Self Storage 81631 8.750 Fixed 1250000 1240461
115 CONT1510 Capital Self-Storage 85730 9.000 Fixed 1250000 1238466
116 CONT2040 Colorow Care Center 81425 10.125 Fixed 1240000 1236773
117 CONT1520 Boston Self Storage 02127 10.000 Fixed 1200000 1197264
118 CONT1530 Waltham Self Storage 02154 10.125 Fixed 1200000 1194575
119 CONT1540 Mulberry Hill Apartments 78215 8.125 Fixed 1200000 1187253
120 CONT3030 U-Haul Storage (Oaklawn Blvd) 23875 9.000 Fixed 1242111 1123627
122 CONT3040 U-Haul Storage (N Richland) 78180 9.000 Fixed 1163576 1039536
123 CONT1550 C & D Mini-Warehouses 28813 10.125 Fixed 1050000 1046862
124 CONT1560 Aloha Self Storage 76117 10.000 Fixed 1000000 996947
126 CONT1950 Dependable Mini Storage 75149 9.750 Fixed 945000 943508
128 CONT1570 Cedar Hill Self Storage 75104 10.250 Fixed 850000 839807
129 CONT1580 Watson & Taylor Mini Storage 77096 9.875 Fixed 835000 831063
130 CONT3050 U-Haul Storage (Shreveport) 71129 9.000 Fixed 866000 808162
131 CONT1960 Tyler Street Self Storage 75224 9.750 Fixed 800000 798737
132 CONT1590 Locker Room Self Storage 76148 9.125 Fixed 800000 792767
133 CONT1600 All American Store & Lock 08701 9.000 Fixed 795000 788423
134 CONT3060 U-Haul Storage (Marrero) 70072 9.000 Fixed 729167 700871
135 CONT1650 Arizona Storage Inns 85251 10.625 Fixed 530000 528914
136 CONT3080 U-Haul Storage (Myrtle Beach) 29575 9.000 Fixed 483889 383842
137 CONT3070 U-Haul Storage (Jefferson) 23875 9.000 Fixed 354951 317239
243270072
<CAPTION>
Next
Loan Control Remaining Maturity Payment Payment
Counter Number Property Name Term Date Due Date Amount Index
<S> <C> <C> <C> <C> <C> <C> <C>
1 CONT1010 Saddleback Apartments 95 10/1/04 12/1/96 103408.84 LIBOR - 6 month
2 CONT1020 Sierra Creek Apartments 95 10/1/04 12/1/96 58075.35 LIBOR - 6 month
3 CONT1080 Mill Park Apartments 95 10/1/04 12/1/96 36436.02 LIBOR - 6 month
4 CONT1790 Heather Glen Care Center 80 7/1/03 12/1/96 23683.92 LIBOR - 6 month
5 CONT1150 Misty Ridge Apartments 95 10/1/04 12/1/96 20608.66 LIBOR - 6 month
6 CONT1320 Plantation House Apartments 95 10/1/04 12/1/96 13847.57 LIBOR - 6 month
7 CONT1930 15-17 Microlab Road 116 7/1/06 12/1/96 9267.18 LIBOR - 6 month
8 CONT1720 Sterling Estates 58 9/1/01 12/1/96 184539.23
12 CONT1970 Pigeon Forge Factory Outlet 120 11/1/06 12/1/96 137235.18
13 CONT1730 Whippletree Village 82 9/1/03 12/1/96 101251.44
21 CONT1030 Westwood Villa Apartments 112 3/1/06 12/1/96 55840.91
22 CONT1180 Tulip Ave Apartments 110 1/1/06 12/1/96 18105.64
23 CONT1360 Merrick Road Apartments 110 1/1/06 12/1/96 11721.89
24 CONT1370 555 Front Street 110 1/1/06 12/1/96 11446.73
25 CONT1620 Broadway Apartments 110 1/1/06 12/1/96 5228.07
26 CONT1640 Tulip Ave Apartments 110 1/1/06 12/1/96 4035.71
27 CONT1710 26 Burr Avenue 110 1/1/06 12/1/96 1018.10
30 CONT1040 The Meadows 81 8/1/03 12/1/96 52183.59
31 CONT1050 Oxford Center 118 9/1/06 12/1/96 55794.23
32 CONT1190 30 North Long Beach Ave 110 1/1/06 12/1/96 17920.73
33 CONT1460 48 South Long Beach Road 110 1/1/06 12/1/96 10070.92
34 CONT1630 77 Terrace Avenue 110 1/1/06 12/1/96 4509.72
35 CONT1660 Lincoln Blvd. Apartments 110 1/1/06 12/1/96 3285.43
36 CONT1670 193 Washington Street 110 1/1/06 12/1/96 3131.34
37 CONT1690 43 Burr Avenue 110 1/1/06 12/1/96 2751.62
38 CONT1700 Van Cott Apartments 110 1/1/06 12/1/96 2255.45
39 CONT1060 Torpedo Factory Landing PH V 112 3/1/06 12/1/96 46995.00
43 CONT2010 Otter Run Apartments 82 9/1/03 12/1/96 42348.71
44 CONT1070 Highland Industrial Park 113 4/1/06 12/1/96 45893.58
45 CONT2000 The Inn at Jackson Hole 118 9/1/06 12/1/96 44277.14
50 CONT2070 San Francisco Loc-N-Stor 118 9/1/06 12/1/96 38061.02
56 CONT2020 Mallard Cove Apartments 82 9/1/03 12/1/96 32575.93
59 Aggregate Loan Level Info. 176 7/1/11 12/1/96 43789.09
59A CONT1940 Life Center of Galax
59B CONT1890 Life Center of Wilmington
59C CONT1920 Keystone Treatment Center
63 CONT1100 Safeguard Self Storage 117 8/1/06 12/1/96 30570.65
64 CONT1110 Villages at McClintock Apts. 64 3/1/02 12/1/96 30186.40
68 CONT1120 Filipello Self Storage 114 5/1/06 12/1/96 26524.39
69 CONT1130 Shirlington Self Storage 113 4/1/06 12/1/96 23881.28
73 CONT1160 Claridge Court Apartments 110 1/1/06 12/1/96 19604.13
75 CONT2030 Sunset Square Shopping Center 118 9/1/06 12/1/96 19301.52
76 CONT1220 Sterling House Assisted Living 114 5/1/06 12/1/96 20697.79
78 CONT1240 Morena Self Storage 92 7/1/04 12/1/96 19991.42
79 CONT1250 Champions Business Park 113 4/1/06 12/1/96 19412.83
80 CONT2050 Valley View Health Care Center 118 9/1/06 12/1/96 11679.82
81 CONT2060 Holly Nursing Care Center 118 9/1/06 12/1/96 9124.86
83 CONT1260 Budget Mini Storage 78 5/1/03 12/1/96 18165.49
84 CONT1270 All American Self Storage 114 5/1/06 12/1/96 18448.03
85 CONT1830 Colwick Tower Office Building 117 8/1/06 12/1/96 18350.55
86 CONT1280 Mr. Stor-All 114 5/1/06 12/1/96 17648.03
89 CONT1290 Secure It Self Storage 76 3/1/03 12/1/96 15367.08
90 CONT1300 Farrington Manor Apartments 113 4/1/06 12/1/96 15500.51
91 CONT1850 Heritage Convalescent Center 116 7/1/06 12/1/96 16356.61
92 CONT1310 Security Public Storage 112 3/1/06 12/1/96 14951.76
93 CONT1860 Poway Garden Self Storage 117 8/1/06 12/1/96 15442.03
94 CONT1880 Harrison Self Storage 116 7/1/06 12/1/96 15597.97
95 CONT1330 LaSombra Apartments 80 7/1/03 12/1/96 14705.40
96 CONT1340 Cypress Commerce 110 1/1/06 12/1/96 13688.86
97 CONT1350 Louetta Mini Storage 112 3/1/06 12/1/96 14056.54
98 CONT2090 U-Haul Storage (Sterling) 85 12/1/03 11/30/96 15391.35
99 Aggregate Loan Level Info. 239 10/1/16 12/1/96 17561.64
99A CONT3090 Annabelle's Restaurant
99B CONT3091 Annabelle's Restaurant
100 CONT1380 Sierra Vista Self Storage 114 5/1/06 12/1/96 13948.51
101 CONT1400 Security Public Storage 114 5/1/06 12/1/96 13105.45
102 CONT1410 Capital City Self Storage 172 3/1/11 12/1/96 12587.95
103 CONT1420 I Avenue Self Storage 112 3/1/06 12/1/96 12332.15
104 CONT1430 Ambassador Self Storage 172 3/1/11 12/1/96 12332.15
105 CONT1390 Arovista Self Storage 116 7/1/06 12/1/96 13403.34
106 CONT1440 Willowbrook Apartments 111 2/1/06 12/1/96 11384.29
107 CONT1450 67 East Willow Street 115 6/1/06 12/1/96 14831.08
108 CONT3010 U-Haul Storage (Richmond) 85 12/1/03 11/30/96 12285.32
109 CONT1910 Harwin Business Park 177 8/1/11 12/1/96 12653.14
110 CONT1470 State College Self-Storage 113 4/1/06 12/1/96 11222.80
111 CONT1480 A Storage Place 112 3/1/06 12/1/96 10798.49
112 CONT3020 U-Haul Storage (Odenton) 82 9/1/03 11/30/96 11302.30
113 CONT1490 UC Mini Storage 112 3/1/06 12/1/96 10383.17
114 CONT1500 Alpine Self Storage 112 3/1/06 12/1/96 10276.80
115 CONT1510 Capital Self-Storage 111 2/1/06 12/1/96 10489.96
116 CONT2040 Colorow Care Center 118 9/1/06 12/1/96 12069.14
117 CONT1520 Boston Self Storage 117 8/1/06 12/1/96 10904.41
118 CONT1530 Waltham Self Storage 114 5/1/06 12/1/96 11010.33
119 CONT1540 Mulberry Hill Apartments 182 1/1/12 12/1/96 9361.38
120 CONT3030 U-Haul Storage (Oaklawn Blvd) 94 9/1/04 11/30/96 10423.75
122 CONT3040 U-Haul Storage (N Richland) 85 12/1/03 11/30/96 9764.69
123 CONT1550 C & D Mini-Warehouses 116 7/1/06 12/1/96 9634.04
124 CONT1560 Aloha Self Storage 116 7/1/06 12/1/96 9087.01
126 CONT1950 Dependable Mini Storage 118 9/1/06 12/1/96 8421.25
128 CONT1570 Cedar Hill Self Storage 175 6/1/11 12/1/96 9264.58
129 CONT1580 Watson & Taylor Mini Storage 114 5/1/06 12/1/96 7514.20
130 CONT3050 U-Haul Storage (Shreveport) 89 4/1/04 11/30/96 7267.44
131 CONT1960 Tyler Street Self Storage 118 9/1/06 12/1/96 7129.10
132 CONT1590 Locker Room Self Storage 171 2/1/11 12/1/96 6782.18
133 CONT1600 All American Store & Lock 112 3/1/06 12/1/96 6671.61
134 CONT3060 U-Haul Storage (Marrero) 89 4/1/04 11/30/96 6119.15
135 CONT1650 Arizona Storage Inns 117 8/1/06 12/1/96 5051.55
136 CONT3080 U-Haul Storage (Myrtle Beach) 82 9/1/03 11/30/96 4060.78
137 CONT3070 U-Haul Storage (Jefferson) 94 9/1/04 11/30/96 2978.74
<CAPTION>
Next Interest
Loan Control Interest Adjustment Life Life
Counter Number Property Name Margin Adj Date Frequency Cap Floor Group
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 CONT1010 Saddleback Apartments 2.750 4/1/97 Semi Annually 11.750 6.000 Group 1
2 CONT1020 Sierra Creek Apartments 2.750 4/1/97 Semi Annually 11.750 6.000 Group 1
3 CONT1080 Mill Park Apartments 2.750 4/1/97 Semi Annually 11.750 6.000 Group 1
4 CONT1790 Heather Glen Care Center 3.000 4/1/97 Semi Annually 12.750 8.500 Group 1
5 CONT1150 Misty Ridge Apartments 2.750 4/1/97 Semi Annually 11.750 6.000 Group 1
6 CONT1320 Plantation House Apartments 2.750 4/1/97 Semi Annually 11.750 6.000 Group 1
7 CONT1930 15-17 Microlab Road 3.150 4/1/97 Semi Annually 12.000 9.000 Group 1
8 CONT1720 Sterling Estates 0.000 0.000 0.000 Group 2
12 CONT1970 Pigeon Forge Factory Outlet 0.000 0.000 0.000 Group 2
13 CONT1730 Whippletree Village 0.000 0.000 0.000 Group 2
21 CONT1030 Westwood Villa Apartments 0.000 0.000 0.000 Group 2
22 CONT1180 Tulip Ave Apartments 0.000 0.000 0.000 Group 2
23 CONT1360 Merrick Road Apartments 0.000 0.000 0.000 Group 2
24 CONT1370 555 Front Street 0.000 0.000 0.000 Group 2
25 CONT1620 Broadway Apartments 0.000 0.000 0.000 Group 2
26 CONT1640 Tulip Ave Apartments 0.000 0.000 0.000 Group 2
27 CONT1710 26 Burr Avenue 0.000 0.000 0.000 Group 2
30 CONT1040 The Meadows 0.000 0.000 0.000 Group 2
31 CONT1050 Oxford Center 0.000 0.000 0.000 Group 2
32 CONT1190 30 North Long Beach Ave 0.000 0.000 0.000 Group 2
33 CONT1460 48 South Long Beach Road 0.000 0.000 0.000 Group 2
34 CONT1630 77 Terrace Avenue 0.000 0.000 0.000 Group 2
35 CONT1660 Lincoln Blvd. Apartments 0.000 0.000 0.000 Group 2
36 CONT1670 193 Washington Street 0.000 Group 2
37 CONT1690 43 Burr Avenue 0.000 0.000 0.000 Group 2
38 CONT1700 Van Cott Apartments 0.000 0.000 0.000 Group 2
39 CONT1060 Torpedo Factory Landing PH V 0.000 0.000 0.000 Group 2
43 CONT2010 Otter Run Apartments 0.000 0.000 0.000 Group 2
44 CONT1070 Highland Industrial Park 0.000 0.000 0.000 Group 2
45 CONT2000 The Inn at Jackson Hole 0.000 0.000 0.000 Group 2
50 CONT2070 San Francisco Loc-N-Stor 0.000 0.000 0.000 Group 2
56 CONT2020 Mallard Cove Apartments 0.000 0.000 0.000 Group 2
59 Aggregate Loan Level Info. 0.000 0.000 0.000 Group 2
59A CONT1940 Life Center of Galax 0.000 0.000 0.000 0
59B CONT1890 Life Center of Wilmington 0.000 0.000 0.000 0
59C CONT1920 Keystone Treatment Center 0.000 0.000 0.000 0
63 CONT1100 Safeguard Self Storage 0.000 Group 2
64 CONT1110 Villages at McClintock Apts. 0.000 0.000 0.000 Group 2
68 CONT1120 Filipello Self Storage 0.000 0.000 0.000 Group 2
69 CONT1130 Shirlington Self Storage 0.000 0.000 0.000 Group 2
73 CONT1160 Claridge Court Apartments 0.000 0.000 0.000 Group 2
75 CONT2030 Sunset Square Shopping Center 0.000 0.000 0.000 Group 2
76 CONT1220 Sterling House Assisted Living 0.000 0.000 0.000 Group 2
78 CONT1240 Morena Self Storage 0.000 0.000 0.000 Group 2
79 CONT1250 Champions Business Park 0.000 0.000 0.000 Group 2
80 CONT2050 Valley View Health Care Center 0.000 0.000 0.000 Group 2
81 CONT2060 Holly Nursing Care Center 0.000 0.000 0.000 Group 2
83 CONT1260 Budget Mini Storage 0.000 0.000 0.000 Group 2
84 CONT1270 All American Self Storage 0.000 Group 2
85 CONT1830 Colwick Tower Office Building 0.000 0.000 0.000 Group 2
86 CONT1280 Mr. Stor-All 0.000 0.000 0.000 Group 2
89 CONT1290 Secure It Self Storage 0.000 0.000 0.000 Group 2
90 CONT1300 Farrington Manor Apartments 0.000 0.000 0.000 Group 2
91 CONT1850 Heritage Convalescent Center 0.000 0.000 0.000 Group 2
92 CONT1310 Security Public Storage 0.000 0.000 0.000 Group 2
93 CONT1860 Poway Garden Self Storage 0.000 0.000 0.000 Group 2
94 CONT1880 Harrison Self Storage 0.000 0.000 0.000 Group 2
95 CONT1330 LaSombra Apartments 0.000 0.000 0.000 Group 2
96 CONT1340 Cypress Commerce 0.000 0.000 0.000 Group 2
97 CONT1350 Louetta Mini Storage 0.000 0.000 0.000 Group 2
98 CONT2090 U-Haul Storage (Sterling) 0.000 0.000 0.000 Group 2
99 Aggregate Loan Level Info. 0.000 0.000 0.000 Group 2
99A CONT3090 Annabelle's Restaurant 0.000 0.000 0.000 0
99B CONT3091 Annabelle's Restaurant 0.000 0.000 0.000 0
100 CONT1380 Sierra Vista Self Storage 0.000 0.000 0.000 Group 2
101 CONT1400 Security Public Storage 0.000 0.000 0.000 Group 2
102 CONT1410 Capital City Self Storage 0.000 0.000 0.000 Group 2
103 CONT1420 I Avenue Self Storage 0.000 0.000 0.000 Group 2
104 CONT1430 Ambassador Self Storage 0.000 0.000 0.000 Group 2
105 CONT1390 Arovista Self Storage 0.000 0.000 0.000 Group 2
106 CONT1440 Willowbrook Apartments 0.000 0.000 0.000 Group 2
107 CONT1450 67 East Willow Street 0.000 Group 2
108 CONT3010 U-Haul Storage (Richmond) 0.000 0.000 0.000 Group 2
109 CONT1910 Harwin Business Park 0.000 0.000 0.000 Group 2
110 CONT1470 State College Self-Storage 0.000 0.000 0.000 Group 2
111 CONT1480 A Storage Place 0.000 0.000 0.000 Group 2
112 CONT3020 U-Haul Storage (Odenton) 0.000 0.000 0.000 Group 2
113 CONT1490 UC Mini Storage 0.000 0.000 0.000 Group 2
114 CONT1500 Alpine Self Storage 0.000 0.000 0.000 Group 2
115 CONT1510 Capital Self-Storage 0.000 0.000 0.000 Group 2
116 CONT2040 Colorow Care Center 0.000 0.000 0.000 Group 2
117 CONT1520 Boston Self Storage 0.000 0.000 0.000 Group 2
118 CONT1530 Waltham Self Storage 0.000 0.000 0.000 Group 2
119 CONT1540 Mulberry Hill Apartments 0.000 0.000 0.000 Group 2
120 CONT3030 U-Haul Storage (Oaklawn Blvd) 0.000 0.000 0.000 Group 2
122 CONT3040 U-Haul Storage (N Richland) 0.000 0.000 0.000 Group 2
123 CONT1550 C & D Mini-Warehouses 0.000 0.000 0.000 Group 2
124 CONT1560 Aloha Self Storage 0.000 0.000 0.000 Group 2
126 CONT1950 Dependable Mini Storage 0.000 0.000 0.000 Group 2
128 CONT1570 Cedar Hill Self Storage 0.000 0.000 0.000 Group 2
129 CONT1580 Watson & Taylor Mini Storage 0.000 0.000 0.000 Group 2
130 CONT3050 U-Haul Storage (Shreveport) 0.000 0.000 0.000 Group 2
131 CONT1960 Tyler Street Self Storage 0.000 0.000 0.000 Group 2
132 CONT1590 Locker Room Self Storage 0.000 0.000 0.000 Group 2
133 CONT1600 All American Store & Lock 0.000 0.000 0.000 Group 2
134 CONT3060 U-Haul Storage (Marrero) 0.000 0.000 0.000 Group 2
135 CONT1650 Arizona Storage Inns 0.000 0.000 0.000 Group 2
136 CONT3080 U-Haul Storage (Myrtle Beach) 0.000 0.000 0.000 Group 2
137 CONT3070 U-Haul Storage (Jefferson) 0.000 0.000 0.000 Group 2
</TABLE>
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section
2(b), collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most
recent endorsee prior to the Trustee or, if none, by
the originator, without recourse, either in blank or
to the order of the Trustee in the following form:
"Pay to the order of State Street Bank and Trust
Company, as trustee for the registered holders of
GMAC Commercial Mortgage Securities, Inc., Mortgage
PassThrough Certificates, Series 1996-C1, without
recourse";
(ii) 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;
(iii) an original assignment of the Mortgage, in recordable
form, executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the
originator, either in blank or in favor of the
Trustee (in such capacity);
(iv) the original or a copy of the 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;
(v) 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 (iii) above;
(vi) an original or 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;
(vii) 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 (iii) above;
(viii) originals or copies of all assumption, modification,
written assurance and substitution agreements, with
evidence of recording thereon if appropriate, in
those instances where the
<PAGE>
-2-
terms or provisions of the Mortgage, Mortgage Note or
any related security document have been modified or
the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title
insurance policy issued as of the date of the
origination of the Mortgage Loan, 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;
(x) 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 Seller at the time
the Mortgage Files were delivered to the Trustee;
(xi) (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 Seller (or its agent) at the
time the Mortgage Files were delivered to the Interim
Custodian and (B) if any such security interest is
perfected and the earlier UCC financing statements
and continuation statements were in the possession of
the 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;
(xii) 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 signed on behalf of the mortgagor; and
(xiii) if the mortgagor has a leasehold interest in the
related Mortgaged Property, the original ground lease
or a copy thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser, the Trustee or the Interim Custodian, such
term shall not be deemed to include such documents and instruments required to
be included therein unless they are actually so received.
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby
represents and warrants, as of the date hereinbelow specified or, if no such
date is specified, as of the Closing Date, that:
(i) Immediately prior to the transfer thereof to the
Purchaser, the Seller had good and marketable title to, and was the
sole owner and holder of, such Mortgage Loan, free and clear of any and
all liens, encumbrances and other interests on, in or to such Mortgage
Loan (other than, in certain cases, the right of a subservicer to
primary service such Mortgage Loan).
(ii) The Seller has full right and authority to sell, assign
and transfer such Mortgage Loan. No provision of the Mortgage Note,
Mortgage or other loan document relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such
Mortgage Loan.
(iii) The information pertaining to such Mortgage Loan set
forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Cut-off Date, 30
days or more delinquent in respect of any Monthly Payment of principal
and/or interest required thereunder, without giving effect to any
applicable grace period.
(v) The Mortgage for such Mortgage Loan constitutes a valid
first lien upon the related Mortgaged Property, including all buildings
located thereon and all fixtures attached thereto, subject only to (and
such Mortgaged Property is free and clear of all encumbrances and liens
having priority over the lien of such Mortgage, except for) (A) the
lien of current real property taxes and assessments not yet due and
payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, and (C) exceptions and
exclusions specifically referred to in the lender's title insurance
policy issued or, as evidenced by a "marked-up" commitment, to be
issued in respect of such Mortgage Loan (the exceptions set forth in
the foregoing clauses (A), (B) and (C) collectively, "Permitted
Encumbrances"). The Permitted Encumbrances do not materially interfere
with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property, or the
current ability of the related Mortgaged Property to generate net
operating income sufficient to service the Mortgage Loan.
(vi) The lien of the related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of the related Mortgage
Loan, its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the related Mortgage Loan
after all advances of principal, subject only to Permitted Encumbrances
(or, if a title insurance policy has not yet been issued in respect of
any Mortgage Loan, a policy meeting the foregoing description is
evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). To the Seller's actual knowledge, no material
claims have been made under such title policy and no claims have been
paid thereunder.
<PAGE>
-2-
(vii) The Seller has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage
or Mortgage Note.
(viii) There is no valid offset, defense or counterclaim to
such Mortgage Loan.
(ix) The Seller has not received actual notice (A) that there
is any proceeding pending or threatened for the total or partial
condemnation of the related Mortgaged Property or (B) that there is any
material damage at the related Mortgaged Property that materially and
adversely affects the value of such Mortgaged Property.
(x) At origination, such Mortgage Loan complied in all
material respects with all requirements of federal, state and local
laws, including, without limitation, laws relating to usury, relating
to the origination of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage for such Mortgage Loan
and all other documents and instruments evidencing, guaranteeing,
insuring or otherwise securing such Mortgage Loan have been duly and
properly executed by the parties thereto, and each is the legal, valid
and binding obligation of the maker thereof (subject to any
non-recourse provisions contained in any of the foregoing agreements
and any applicable state anti-deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally
and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(xiii) All improvements upon the related Mortgaged Property
securing a Mortgage Loan are insured against loss by hazards of
extended coverage in an amount (subject to a customary deductible) at
least equal to the lesser of the outstanding principal balance of such
Mortgage Loan and 100% of the full insurable replacement cost of the
improvements located on the related Mortgaged Property, and if
applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. If any portion
of the related Mortgaged Property securing any Mortgage Loan was, at
the time of the origination of such Mortgage Loan, in an area
identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards, and flood insurance was
available, a flood insurance policy meeting any requirements of the
then current guidelines of the Federal Insurance Administration is in
effect with a generally acceptable insurance carrier, in an amount
representing coverage not less than the least of (1) the outstanding
principal balance of such Mortgage Loan, (2) the full insurable value
of such Mortgaged Property, (3) the maximum amount of insurance
available under the National Flood Insurance Act of 1968, as amended,
and (4) 100% of the replacement cost of the improvements located on the
related Mortgage Property. All other insurance required under the
Mortgage for such Mortgage Loan is in full force and effect with
respect to the related Mortgaged Property.
(xiv) The related Mortgaged Property was subject to one or
more environmental site assessments (or an update of a previously
conducted assessment), which was (were) performed on behalf of the
Seller,
<PAGE>
-3-
or as to which the related report was delivered to the Seller in
connection with its origination or acquisition of such Mortgage Loan;
and the Seller, having made no independent inquiry other than reviewing
the resulting report(s) and/or employing an environmental consultant to
perform the assessment(s) referenced herein, has no knowledge of any
material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in the related
report(s). The Seller has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage
Loan, to any liability under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA") or any
other applicable federal, state or local environmental law, and the
Seller has not received any actual notice of a material violation of
CERCLA or any applicable federal, state or local environmental law with
respect to the related Mortgaged Property that was not disclosed in the
related report.
(xv) Such Mortgage Loan is not cross-collateralized with a
mortgage loan outside the Mortgage Pool.
(xvi) The terms of the Mortgage and the Mortgage Note for such
Mortgage Loan have not been impaired, waived, altered or modified in
any material respect, except as specifically set forth in the related
Mortgage File.
(xvii) There are no delinquent taxes, ground rents, water
charges, sewer rents, insurance premiums, assessments or other similar
outstanding charges affecting the related Mortgaged Property.
(xviii) Except in the case of Mortgage Loans as to which the
interest of the related mortgagor in the related Mortgaged Property is
a leasehold estate, the interest of the related mortgagor in each
related Mortgaged Property consists of a fee simple estate in real
property.
(xix) Such Mortgage Loan is a whole loan and not a
participation interest.
(xx) The assignment of the related Mortgage referred to in
clause (iii) of Exhibit B constitutes the legal, valid and binding
assignment of such Mortgage from the relevant assignor to the assignee,
and the assignment of the related assignment of leases, if any,
referred to in clause (v) of Exhibit B constitutes the legal, valid and
binding assignment thereof from the relevant assignor to the Trustee.
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan that
were required to be delivered to the mortgagee under the terms of the
related loan documents, have been received and, to the extent of any
remaining balances thereof are in the possession, or under the control,
of the Seller or its agents (which shall include the Master Servicer).
(xxii) As of the date of origination of such Mortgage Loan
and, to the actual knowledge of the Seller, as of the Closing Date, the
related Mortgaged Property was and is free and clear of any mechanics'
and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage.
<PAGE>
-4-
(xxiii) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at
the time of origination of such Mortgage Loan lies outside the
boundaries and building restriction lines of such property to any
material extent (unless affirmatively covered by the title insurance
referred to in paragraph (vi) above); no improvements on adjoining
properties materially encroach upon such Mortgaged Property to any
material extent; and no improvement located on or forming part of such
Mortgaged Property is in material violation of any applicable zoning
laws or ordinances (except to the extent that they may constitute legal
non-conforming uses).
(xxiv) To the extent required under applicable law as of the
Closing Date, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent
necessary to ensure the enforceability of such Mortgage Loan.
(xxv) There is no material default, breach or event of
acceleration existing under the related Mortgage or Mortgage Note, and
the Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute such a material default, breach or event of acceleration;
provided, however, that this representation and warranty does not cover
any default, breach or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and
warranty made by the Seller in any of paragraphs (iv), (xiv), (xvii),
(xxi), (xxiii) and (xxix) of this Exhibit C.
(xxvi) If the Mortgage Loan is an ARM Loan, all of the terms
of the related Mortgage Note pertaining to interest rate adjustments,
payment adjustments and adjustments of the principal balance are
enforceable, such adjustments will not affect the priority of the
mortgage lien, and all such adjustments and all calculations made
before the Cut-off Date were made correctly and in full compliance with
the terms of the related Mortgage and Mortgage Note.
(xxvii) The Mortgage Loan does not contain any equity
participation by the lender or provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property.
(xxviii) No holder of the Mortgage Loan has, to the Seller's
knowledge, advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Loan.
(xxix) To the Seller's knowledge, based on due diligence
customarily performed in the origination of comparable mortgage loans,
as of the date of origination of the Mortgage Loan, (A) the related
mortgagor was in possession of all material licenses, permits and
authorizations required by applicable laws for the ownership and
operation of the related Mortgaged Property as it was then operated and
(B) all such licenses, permits and authorizations were valid and in
full force and effect.
(xxx) The servicing and collection practices used with respect
to the Mortgage Loans have been in all material respects legal and
prudent and have met customary standards utilized by prudent
institutional commercial and multifamily mortgage loan servicers.
<PAGE>
-5-
(xxxi) The related Mortgage or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in paragraph (xii)) such as to
render the rights and remedies of the holders thereof adequate for the
practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby.
(xxxii) The provisions of the related Mortgage provide that
insurance proceeds and condemnation proceeds will be applied either to
restore or repair the Mortgaged Property or to repay the principal of
the Mortgage Loan or otherwise at the option of the mortgagee.
(xxxiii) The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent
principal amount of the Mortgage Loan and either: (A) such Mortgage
Loan is secured by an interest in real property having a fair market
value (1) at the date the Mortgage Loan was originated at least equal
to 80 percent of the original principal balance of the Mortgage Loan or
(2) at the Closing Date at least equal to 80 percent of the principal
balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first
be reduced by (X) the amount of any lien on the real property interest
that is senior to the Mortgage Loan and (Y) a proportionate amount of
any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in clauses (1)
and (2) of this paragraph (xxxiii) shall be made on a pro rata basis in
accordance with the fair market values of the Mortgaged Properties
securing such cross-collateralized Mortgage Loans; or (B) substantially
all the proceeds of such Mortgage Loan were used to acquire, improve or
protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party
credit enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(xxxiv) Any Mortgage Loan that was "significantly modified"
prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (A) was modified as a result of the
default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the
Mortgage Loan was originated) or clause (A)(2) of paragraph (xxxiii),
including the proviso thereto.
(xxxv) To the Seller's actual knowledge, there are no pending
or threatened actions, suits or proceedings by or before any court or
governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined
adversely to such Mortgagor or Mortgaged Property, would materially and
adversely affect the value of the Mortgaged Property or the ability of
the Mortgagor to pay principal, interest or any other amounts due under
such Mortgage Loan.
(xxxvi) If such Mortgage Loan is secured in whole or in part
by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (or portion thereof) (a "GROUND LEASE"), but not by
the related fee interest in such Mortgaged Property (or portion
thereof) (the "FEE INTEREST"):
(A) To the actual knowledge of the Seller, such Ground
Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest
of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material
change
<PAGE>
-6-
in the terms of such Ground Lease since its
recordation, with the exception of written
instruments which are a part of the related Mortgage
File;
(B) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with,
the related Mortgage, other than the related Fee
Interest and Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and
assigns upon notice to, but without the consent of,
the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is
further assignable by the Purchaser and its
successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor,
except with respect to one Mortgage Loan, with
respect to which any further assignment requires the
consent of the lessor, but which consent cannot be
unreasonably withheld;
(D) At the Closing Date, such Ground Lease is in full
force and effect and no default has occurred under
such Ground Lease, nor to the actual knowledge of the
Seller, is there any existing condition which, but
for the passage of time or the giving of notice, or
both, would result in a default under the terms of
such Ground Lease;
(E) Such Ground Lease requires the lessor thereunder to
give notice of any default by the lessee to the
mortgagee, provided that the mortgagee has provided
the lessor with notice of its lien in accordance with
the provisions of such Ground Lease, and such Ground
Lease, or an estoppel letter received by the
mortgagee from the lessor, further provides that no
notice of termination given under such Ground Lease
is effective against the mortgagee unless a copy has
been delivered to the mortgagee in the manner
described in such Ground Lease;
(F) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under such
Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice
of any such default, before the lessor thereunder may
terminate such Ground Lease;
(G) Such Ground Lease has an original term (including any
extension options set forth therein) which extends
not less than ten (10) years beyond the Stated
Maturity Date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance
proceeds other than in respect of a total or
substantially total loss or taking, will be applied
either to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or
a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or
restoration progresses (except in such cases where a
provision entitling another party to hold and
disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial
mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan
together with any accrued interest
<PAGE>
-7-
thereon, with any excess proceeds available for
application at the option of the mortgagee; and
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender;
and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of
an uncured default, to disturb the possession,
interest or quiet enjoyment of any lessee in the
relevant portion of the Mortgaged Property subject to
such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security
provided by the related Mortgage.
(xxxvii) If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage.
(xxxviii) Except as described in the next sentence, the
related Mortgage Note or Mortgage does not require the mortgagee to
release all or any portion of the related Mortgaged Property from the
lien of the related Mortgage except upon payment in full of all amounts
due under such Mortgage Loan. The Mortgage relating to one Mortgage
Loan secured by property described as the Colorow Care Center in the
Mortgage Loan Schedule requires the mortgagee to grant a release of a
portion of the related Mortgaged Property consisting of raw land upon
satisfaction of certain conditions.
It is understood and agreed that the representations and
warranties set forth in this Exhibit C shall survive delivery of the respective
Mortgage Files to the Purchaser, the Trustee and/or the Interim Custodian and
shall inure to the benefit of the Purchaser, and its successors and assigns
(including without limitation the Trustee and the holders of the Certificates)
notwithstanding any restrictive or qualified endorsement or assignment.
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
CERTIFICATE OF OFFICER OF CONTITRADE SERVICES, L.L.C. ("CONTITRADE")
I, _________________, a __________ of ContiTrade (the "Seller"), hereby
certify as follows:
The Seller is a limited liability duly organized and validly existing
under the laws of the State of Delaware.
Attached hereto as Exhibit I is a true and correct copy of the
Certificate of Formation and Limited Liability Company Agreement of the Seller,
which Certificate of Formation and Limited Liability Company Agreement is on the
date hereof, and has been at all times in full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation
or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Seller and his genuine signature is set
forth opposite his name:
NAME OFFICE SIGNATURE
_________________ _________________ __________________
_________________ _________________ __________________
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of October 30, 1996
(the "Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
July 10, 1996.
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
I, [name], [title], hereby certify that __________________ and
__________________ are duly elected or appointed, as the case may be, qualified
and acting ___________ of the Seller and that the signatures appearing above are
such officers' genuine signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
November 7, 1996.
By:_______________________________
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF CONTITRADE SERVICES, L.L.C.
In connection with the execution and delivery by ContiTrade Services,
L.L.C. (the "Seller") of, and the consummation of the transaction contemplated
by, that certain Mortgage Loan Purchase Agreement, dated as of October 30, 1996
(the "Purchase Agreement"), between GMAC Commercial Mortgage Securities, Inc.
and the Seller, the Seller hereby certifies that (i) the representations and
warranties of the Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date hereof. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified this 7th day of November, 1996.
CONTITRADE SERVICES, L.L.C.
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
<PAGE>
EXHIBIT D-3
FORM OF OPINION OF COUNSEL TO THE SELLER
November 7, 1996
GMAC Commercial Mortgage Securities, Inc.
650 Dresher Road
Horsham, Pennsylvania 19044-8015
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036-8293
Re: Mortgage Loan Purchase Agreement, dated as of October 30, 1996,
between ContiTrade Services, L.L.C. and GMAC Commercial
Mortgage Securities, Inc.
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as counsel of
ContiTrade Services, L.L.C. (the "Seller"), pursuant to Section 8(e) of the
Mortgage Loan Purchase Agreement, dated as of October 30, 1996 (the "Purchase
Agreement"), between GMAC Commercial Mortgage Securities, Inc. (the "Purchaser")
and the Seller, relating to the sale by the Seller of certain mortgage loans
(the "Mortgage Loans"). Capitalized terms not otherwise defined herein have the
meanings set assigned to them in the Purchase Agreement.
I (or attorneys under my supervision) have examined originals or
copies, certified or otherwise identified to my satisfaction, of such corporate
records of the Seller, certificates of public officials, officers of the Seller
and other persons and other documents, agreements and instruments and have made
such other investigations as I have deemed necessary or appropriate for purposes
of this opinion.
<PAGE>
Based upon the foregoing, I am of the opinion that:
1. The Seller is a limited liability company validly existing
under the laws of the State of Delaware, with full power
authority under such laws to own its properties and assets and
to conduct its business as contemplated in the Purchase
Agreement and to enter into and perform its obligations under
the Purchase Agreement.
2. The Purchase Agreement has been duly authorized, executed and
delivered by the Seller and, upon due authorization, execution
and delivery by the Purchaser, will constitute a valid, legal
and binding agreement of the Seller, enforceable against the
Seller in accordance with its terms, except as enforceability
may be limited by (a) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
relating to or affecting the enforcement of creditors rights
generally, (b) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and
(c) public policy considerations underlying the securities
laws, to the extent such public policy considerations limit
the enforceability of the provisions of such agreement that
purport to provide indemnification from securities law
liabilities.
3. No consent, approval, authorization or order of any court,
governmental agency or body is required in connection with the
execution and delivery by the Seller of the Purchase
Agreement, except for those consents, approvals,
authorizations or orders that previously have been obtained.
4. The transfer of the Mortgage Loans as provided in the Purchase
Agreement and the fulfillment of the terms of the Purchase
Agreement will not conflict with or result in a violation of
the Certificate of Formation and Limited Liability Company
Agreement of the Seller or any agreement or instrument, order,
writ, judgment or decree known to us to which the Seller is a
party or is subject.
5. To the best of our knowledge, there are no actions or
proceedings against the Seller, pending (with regard to which
the Seller has received service of process) or overtly
threatened in writing before any court, governmental agency or
arbitrator which affect the enforceability of the Purchase
Agreement, or which would draw into question the validity of
the Purchase Agreement or any action taken or to be taken in
connection with the Seller's obligations contemplated therein,
or which would materially impair the Seller's ability to
perform under the terms of the Purchase Agreement.
6. Nothing has come to our attention that would lead us to
believe that, insofar as it relates to the characteristics of
the Mortgage Loans, the real properties that secure such or
the related borrowers or relates to the description of the
Seller, the Prospectus (other than any accounting, financial
or statistical information included therein, as to which no
opinion is expressed), at the date of the Prospectus
Supplement or at the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
The opinions expressed herein are limited to the laws of the State of
Delaware, the State of New York and the federal law of the United States.
<PAGE>
This opinion is given to you for your sole benefit, and no other person
or entity is entitled to rely hereon without our express written consent.
Very truly yours,
<PAGE>
EXHIBIT E
GUARANTY AGREEMENT
(see attached)
EXHIBIT 99.3
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of October 30, 1996, between Internationale Nederlanden (U.S.)
Capital Corporation (to be known as ING (U.S.) Capital Corporation as of
November 1, 1996) as seller (the "Seller") and GMAC Commercial Mortgage
Securities, Inc. as purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a Division of McGraw-Hill Companies, Inc. and/or
Moody's Investor's Services, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Registered Certificates") will be registered
under the Securities Act of 1933, as amended (the "Securities Act"). The Trust
Fund will be created and the Certificates will be issued pursuant to a pooling
and servicing agreement to be dated as of November 1, 1996 (the "Pooling and
Servicing Agreement"), among the Purchaser as depositor, GMAC Commercial
Mortgage Corporation as master servicer (in such capacity, the "Master
Servicer") and special servicer (in such capacity, the "Special Servicer"), and
State Street Bank and Trust Company as trustee (in such capacity, the
"Trustee"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell the Certificates to Goldman, Sachs & Co.
("Goldman") and Morgan Stanley & Co. Incorporated ("Morgan", and together with
Goldman, the "Underwriters") pursuant to, in the case of the Registered
Certificates, an underwriting agreement dated the date hereof (the "Underwriting
Agreement") and, in the case of the remaining Certificates (the "Non-Registered
Certificates"), a certificate purchase agreement dated the date hereof (the
"Certificate Purchase Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. AGREEMENT TO PURCHASE.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on November 7, 1996 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on November 1, 1996 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$157,951,168, subject to a variance of plus
<PAGE>
or minus 5.0%. The purchase price for the Mortgage Loans shall be determined and
paid to the Seller in accordance with the terms of an allocation agreement dated
the date hereof (the "Allocation Agreement"), to which the Seller and Purchaser,
among others, are parties.
SECTION 2. CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, subject only to receipt by the
Seller of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdback for transaction expenses in accordance with the Allocation
Agreement), the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including all interest and principal received or
receivable by the Seller on or with respect to the Mortgage Loans after the
Cut-off Date, together with all of the Seller's right, title and interest in and
to the proceeds of any related title, hazard, or other insurance policies and
any escrow, reserve or other comparable accounts related to the Mortgage Loans.
The Purchaser shall be entitled to (and, to the extent received by or on behalf
of the Seller, the Seller shall deliver or cause to be delivered to or at the
direction of the Purchaser) all scheduled payments of principal and interest due
on the Mortgage Loans after the Cut-off Date, and all other recoveries of
principal and interest collected thereon after the Cut-off Date. All scheduled
payments of principal and interest due thereon on or before the Cut-off Date and
collected after the Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection
(a) above, the Seller hereby acknowledges that it is obligated to deliver to and
deposit with, or cause to be delivered to and deposited with, and further
represents and warrants that it has so delivered to and deposited with, or
caused to be delivered to and deposited with, State Street Bank and Trust
Company (the "Interim Custodian") the Mortgage File (as described on Exhibit B
hereto) for each Mortgage Loan so assigned. If the Seller cannot deliver, or
cause to be delivered, as to any Mortgage Loan, the original or a copy of any of
the documents and/or instruments referred to in clauses (ii), (iv), (viii),
(xi)(A) and (xii) of Exhibit B, with evidence of recording thereon, solely
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 this Section 2(b) shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Interim
Custodian, 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 Purchaser (or any subsequent owner of
the affected Mortgage Loan, including without limitation the Trustee) within 180
days of the Closing Date (or within such longer period after the Closing Date as
the Purchaser (or such subsequent owner) may consent to, which consent shall not
be unreasonably withheld so long as the Seller has provided the Purchaser (or
such subsequent owner) with evidence of such recording or filing, as the case
may be, or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or
-2-
<PAGE>
filing, as the case may be, and is, as certified to the Purchaser (or such
subsequent owner) no less often than quarterly, in good faith attempting to
obtain from the appropriate county recorder's or filing office such original or
copy). If the 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 (ix) of Exhibit B solely because such policy has
not yet been issued, the delivery requirements of this Section 2(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
Seller has delivered to the Interim Custodian a commitment for title insurance
"marked-up" at the closing of such Mortgage Loan, and the Seller shall deliver
to or at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee), 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 Exhibit B 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. On the Closing Date, upon
notification from the Seller that the purchase price referred to in Section 1
(exclusive of any applicable holdback for transaction expenses in accordance
with the Allocation Agreement) has been received by the Seller, the Interim
Custodian shall be authorized to release to the Purchaser or its designee all of
the Mortgage Files in the Interim Custodian's possession relating to the
Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all
costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of Exhibit B; provided that the
Seller shall not be responsible for actually recording or filing any such
document or instrument. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession of
the Seller (or under its control) with respect to the Mortgage Loans, shall
(unless they are held by a sub-servicer that shall, as of the Closing Date,
begin acting on behalf of the Master Servicer pursuant to a written agreement
between such parties) be delivered by the Seller (or its agent) to the Purchaser
(or its designee) no later than the Closing Date. If a sub-servicer shall, as of
the Closing Date, begin acting on behalf of the Master Servicer with respect to
any Mortgage Loan pursuant to a written agreement between such parties, the
Seller shall deliver a copy of the related Servicing File to the Master
Servicer.
-3-
<PAGE>
(e) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale.
SECTION 3. EXAMINATION OF MORTGAGE LOAN FILES AND DUE DILIGENCE
REVIEW.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER.
(a) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit
C, with such changes or modifications as may be permitted or required by the
Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents
and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly authorized, validly
existing and in good standing under the laws of the State of Delaware,
and is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this
Agreement by the Seller, will not violate the Seller'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) The Seller 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 Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller 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.
-4-
<PAGE>
(v) The Seller 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,
any 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 the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller
has received service of process or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit the
Seller from entering into this Agreement or, in the Seller's good faith
and reasonable judgment, is likely to materially and adversely affect
either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, ContiFinancial Services Corporation, ING Baring (U.S.)
Corporation, and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the
Mortgage Loans or the consummation of any of the other transactions
contemplated hereby.
(viii) Neither the Seller nor anyone acting on its behalf has
(A) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (B) solicited any offer to buy or
to accept a pledge, disposition or other transfer of any Certificate,
any interest in any Certificate or any other similar security from any
person in any manner, (C) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (D) made any
general solicitation by means of general advertising or in any other
manner with respect to any Certificate, any interest in any Certificate
or any similar security, or (E) taken any other action, that (in the
case of any of the acts described in clauses (A) through (E) above)
would constitute or result in a violation of the Securities Act or any
state securities law relating to or in connection with the issuance of
the Certificates or require registration or qualification pursuant to
the Securities Act or any state securities law of any Certificate not
otherwise intended to be a Registered Certificate. In addition, the
Seller will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any of the Certificates or interests therein. For purposes
of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans
or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the
information set forth on pages A-9 through A-45, inclusive, of Annex A
to the Prospectus Supplement (as defined in Section 9) (the "Loan
Detail") and, to the extent consistent therewith, the information set
forth on the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it
-5-
<PAGE>
relates to the Mortgage Loans and/or the Seller and does not represent
a restatement or aggregation of the information on the Loan Detail, the
information set forth in the Prospectus Supplement and the Memorandum
(also as defined in Section 9) under the headings "Summary of the
Prospectus Supplement--The Mortgage Asset Pool", "Risk Factors--The
Mortgage Loans" and "Description of the Mortgage Asset Pool", set forth
on Annex A to the Prospectus Supplement and (to the extent it contains
information consistent with that on such Annex A) set forth on the
Diskette, does not contain any untrue statement of a material fact or
(in the case of the Memorandum, when read together with the other
information specified therein as being available for review by
investors) omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in subsection
(b) above which materially and adversely affects the interests of the Purchaser
or a breach of any of the representations and warranties made pursuant to
subsection (a) above and set forth in Exhibit B which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the Purchaser
or its successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PURCHASER.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser'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) The Purchaser 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 Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser 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.
-6-
<PAGE>
(v) The Purchaser 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, any 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 the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would
prohibit the Purchaser from entering into this Agreement or, in the
Purchaser's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the
Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
ContiFinancial Services Corporation, ING Baring (U.S.) Securities, Inc.
and their respective affiliates, that may be entitled to any commission
or compensation in connection with the sale of the Mortgage Loans or
the consummation of any of the transactions contemplated hereby.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. REPURCHASES.
(a) Within 90 days of the earlier of discovery or receipt of notice by
the Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement) in respect of the
Mortgage File for any Mortgage Loan or a breach of any representation or
warranty made pursuant to Section 4(a) and set forth in Exhibit C, which Defect
or breach, as the case may be, materially and adversely affects the value of any
Mortgage Loan or the interests therein of the Purchaser or its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), the Seller shall cure such Defect or breach, as the case may be,
in all material respects or repurchase the affected Mortgage Loan from the then
owner(s) thereof at the applicable Purchase Price (as defined in the Pooling and
Servicing Agreement) by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
If the Seller is notified of a defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes.
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<PAGE>
(b) Notwithstanding Section 6(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
(c) In connection with any repurchase of a Mortgage Loan contemplated
by this Section 6, the then owner(s) thereof shall tender or cause to be
tendered promptly to the Seller, upon delivery of a receipt executed by the
Seller, the related Mortgage File and Servicing File, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Purchaser or the Trustee shall be endorsed or assigned, as the case may be, to
the Seller in the same manner. The form and sufficiency of all such instruments
and certificates shall be the responsibility of the Seller.
(d) This Section 6 provides the sole remedies available to the
Purchaser, and its successors and assigns (including, without limitation the
Trustee and the holders of the Certificates) respecting any Defect in a Mortgage
File or any breach of any representation or warranty made pursuant to Section
4(a) and set forth in Exhibit C, or in connection with the circumstance
described in Section 6(b). If the Seller defaults on its obligations to
repurchase any Mortgage Loan in accordance with Section 6(a) or 6(b) or disputes
its obligation to repurchase any Mortgage Loan in accordance with either such
subsection, the Purchaser may take such action as is appropriate to enforce such
payment or performance, including, without limitation, the institution and
prosecution of appropriate proceedings. The Seller shall reimburse the Purchaser
for all necessary and reasonable costs and expenses incurred in connection with
such enforcement.
SECTION 7. CLOSING.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Thacher Proffitt & Wood, Two World Trade Center, New
York, New York 10048 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the
Seller specified herein shall be true and correct as of the
Closing Date, and the Aggregate Cut-off Date Balance shall be
within the range permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 of this
Agreement (the "Closing Documents"), in such forms as are
agreed upon and acceptable to the Purchaser, shall be duly
executed and delivered by all signatories as required pursuant
to the respective terms thereof;
(iii) The Seller shall have delivered and released to
the Interim Custodian, the Purchaser or the Purchaser's
designee, as the case may be, all documents and funds required
to be so delivered pursuant to Section 2 hereof;
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<PAGE>
(iv) The result of any examination of the Mortgage
Files and Servicing Files performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory
to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement
required to be complied with on or before the Closing Date
shall have been complied with, and the Seller shall have the
ability to comply with all terms and conditions and perform
all duties and obligations required to be complied with or
performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all
fees, costs and expenses payable by it to the Purchaser
pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the
Certificate Purchase Agreement shall have been terminated in
accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. CLOSING DOCUMENTS.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of Delaware, dated not earlier than 30 days
prior to the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Purchaser and each
Underwriter may rely;
(e) A written opinion of counsel for the Seller, substantially in the
form of Exhibit D- 3 hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the Purchaser
and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested
by the Rating Agencies in connection with the issuance of the Certificates, each
of which shall include the Purchaser and each Underwriter as an addressee; and
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<PAGE>
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. INDEMNIFICATION.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, its
officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding the Seller or the Mortgage Loans contained in the Prospectus
Supplement or the Memorandum under the headings "Summary of Prospectus
Supplement - The Mortgage Asset Pool", "Risk Factors - The Mortgage Loans"
and/or "Description of the Mortgage Asset Pool" or contained on Annex A to the
Prospectus Supplement (exclusive of the Loan Detail), and such information does
not represent a restatement or aggregation of information contained in the Loan
Detail; or (iii) such untrue statement, alleged untrue statement, omission or
alleged omission arises out of or is based upon a breach of the representations
and warranties of the Seller set forth in or made pursuant to Section 4;
provided, that the indemnification provided by this Section 9 shall not apply to
the extent that such untrue statement of a material fact or omission of a
material fact necessary to make the statements made, in light of the
circumstances in which they were made, not misleading, was made as a result of
an error in the manipulation of, or calculations based upon, the Loan Detail.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 33-94448 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated October 22,
1996, as supplemented by the prospectus supplement dated October 30, 1996 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated October 30, 1996, relating to
the NonRegistered Certificates; "Computational Materials" shall have the meaning
assigned thereto in the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the
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<PAGE>
Securities and Exchange Commission (the "Commission") to Kidder, Peabody
Acceptance Corporation I, Kidder, Peabody & Co. Incorporated, and Kidder
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Kidder Letters"); and "ABS Term Sheets"
shall have the meaning assigned thereto in the no-action letter dated February
17, 1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the Kidder
Letters, the "No-Action Letters"). This indemnity agreement will be in addition
to any liability which the Seller may otherwise have.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller (the "indemnifying party") under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; PROVIDED,
HOWEVER, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election to assume the defense of such action
and approval by the indemnified party of counsel, which approval will not be
unreasonably withheld, the indemnifying party will not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the indemnifying
party, representing all the indemnified parties under Section 9(a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the
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<PAGE>
relative fault of the indemnified and indemnifying parties in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified and indemnifying parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by PRO RATA
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 9, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
9 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. COSTS.
Costs relating to the transactions contemplated hereby shall be borne
by the respective parties hereto in accordance with the Allocation Agreement.
SECTION 11. NOTICES.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at
650 Dresher Road, P.O. Box 1015, Horsham, Pennsylvania 19044-8015, Attention:
Ms. Elisa George, facsimile no. (215) 682-3425, with a copy to GMAC Mortgage
Corporation, 3031 West Grand Boulevard, Detroit, Michigan 48232, Attention:
Robert Schwartz, facsimile no. (313) 974-0685 or such other address or facsimile
number as may hereafter be furnished to the Seller in writing by the Purchaser;
and if to the Seller, addressed to ING (U.S.) Capital Corporation at 135 East
57th Street, New York, New York 10022-2101, Attention: Amanda Lister, facsimile
no. (212) 644-7188, with a copy to ING (U.S.) Capital
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<PAGE>
Corporation at 667 Madison Avenue, New York, New York 10021, Attention: General
Counsel, facsimile no. (212) 350-7990 or to such other address or facsimile
number as the Seller may designate in writing to the Purchaser.
SECTION 12. THIRD PARTY BENEFICIARIES.
Each of the officers, directors and controlling persons
referred to in Section 9 hereof is an intended third party beneficiary of the
covenants and indemnities of the Seller set forth in Section 9 of this
Agreement. It is acknowledged and agreed that such representations, warranties,
covenants and indemnities may be enforced by or on behalf of any such person or
entity against the Seller to the same extent as if it was a party hereto.
SECTION 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14. SEVERABILITY OF PROVISIONS.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY
TO THIS AGREEMENT.
SECTION 17. FURTHER ASSURANCES.
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The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. SUCCESSORS AND ASSIGNS.
The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. AMENDMENTS.
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary hereof without the prior
consent of that person.
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<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By:_______________________________________
Name:
Title:
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:______________________________________
Name:
Title:
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip
code) of the related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date
and whether such Mortgage Loan is an ARM Loan, a
Fixed-Rate Loan or a Step-Down Loan;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B)
Stated Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first
Due Date following the Cut-off Date;
(ix) in the case of an ARM Loan, the (A) Index, (B) Gross
Margin, (C) first Mortgage Rate adjustment date
following the Cut-off Date and the frequency of
Mortgage Rate adjustments, and (D) maximum and
minimum lifetime Mortgage Rate, if any;
(x) the Loan Group.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
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.
<PAGE>
<TABLE>
<CAPTION>
ING CAPITAL MORTGAGE LOAN SCHEDULE
Loan Control Property Property Interest
Counter Number Property Name Property Address Property City State Zip Rate
<S> <C> <C> <C> <C> <C> <C> <C>
9 ING56062 500 Enterprise Drive 500 Enterprise Dr. Rocky Hill CT 06067 8.750
10 ING56062 Tech Center I-91 Tech Ct.,795-865 Brook St Rocky Hill CT 06067 8.750
11 ING57027 Dadeland 7700 North Kendall Dr. Miami FL 33156 9.655
14 ING57012 3rd & 4th Battery 3rd & 4th Battery Seattle WA 98121 9.906
15 ING56875 Centra 600 600 Old Country Road Garden City NY 11530 9.825
16 ING56911 Lantana Cascade 6330 S. Congress Ave Lantana FL 33462 8.160
17 ING57094 1001 Connecticut Avenue 1001 Connecticut Avenue, N.W. Washington DC DC 20036 10.005
18 ING56279 Radisson Agoura Hills 30100 Agoura Road Agoura Hill CA 91301 9.850
20 ING57026 Westwind/Oak Ridge 2250-2470 West Mason St Green Bay WI 54303 9.988
28 ING56347 Freeman Medical 323 Prairie Avenue Inglewood CA 90301 9.020
29 ING56874 Gorham Island One Gorham Island Westport CT 06880 8.750
40 ING57095 1634 Eye Street 1634 Eye Street Washington DC DC 20006 9.483
42 ING56510 Georgetowne Apartments 2222 South 142 Court Omaha NE 68144 9.558
46 ING0002 The Dome Building 1045-1099 Westwood Blvd. Los Angeles CA 90024 9.320
47 ING56861 Plaza Del Mar 12835 & 12845 Pointe Del Mar San Diego CA 92014 10.682
Way; 12865 Caminito Pointe Del
Mar
52 ING55872 Pacific Court 1411-13 5th Street Santa Monica CA 90401 9.960
53 ING0003 Woodlands of Kennesaw 2880 N. Cobb Parkway Kennesaw GA 30152 9.470
58 ING56616 Lemme Building 76-82 River Street Hoboken NJ 07030 8.410
60 ING55989 The Grand 1717 North Bayshore Drive Miami FL 33132 9.860
61 ING55638 College Plaza 2400 Cerillos Santa Fe NM 87505 10.750
62 ING57093 Parkway Market Center 6075 Parkway Drive Commerce City CO 80022 10.103
65 ING56668 Holiday Inn Grand Rapids 225 28th Street, S.W. Grand Rapids MI 49548 9.560
71 ING55648 Broadmoor Shopping Center 1401 North Turner Street Hobbs NM 88240 10.750
72 ING55649 Hobbs Plaza 2400 North Grimes St Hobbs NM 88240 10.750
87 ING56937 Abington Grove 500 N. Quincy St. Abington MA 02351 10.050
</TABLE>
<TABLE>
<CAPTION>
Next
Loan Rate Original Cut-Off Date Remaining Maturity Payment Payment
Counter Type Balance Balance Term Date Due Date Amount Index Margin
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
9 Fixed 12231000 12185012 68 7/1/02 12/1/96 100556.38 0.000
10 Fixed 6500250 6475809 68 7/1/02 12/1/96 53441.39 0.000
11 Fixed 16100000 16100000 117 8/1/06 12/1/96 129544.26 0.000
14 Fixed 12382600 12382600 68 7/1/02 12/1/96 102223.74 0.000
15 Fixed 11876625 11876625 114 5/1/06 12/1/96 97239.70 0.000
16 Fixed 9950000 9950000 49 11/22/00 12/1/96 68559.66 0.000
17 Fixed 9200000 9200000 50 12/31/00 12/1/96 76702.69 0.000
18 Fixed 8585000 8585000 60 11/1/01 12/1/96 81995.73 0.000
20 Fixed 7537500 7537500 57 8/1/01 12/1/96 62739.07 0.000
28 Fixed 6554925 6554925 108 11/1/05 12/1/96 58976.36 0.000
29 Fixed 6500000 6500000 114 5/1/06 12/1/96 53439.34 0.000
40 Fixed 5340000 5340000 50 12/31/00 12/1/96 42200.64 0.000
42 Fixed 5200000 5200000 110 1/1/06 12/1/96 41417.24 0.000
46 Fixed 4700000 4697599 119 10/1/06 12/1/96 38904.39 0.000
47 Fixed 4545000 4545000 54 5/1/01 12/1/96 40455.12 0.000
52 Fixed 4242000 4225636 43 6/1/00 12/1/96 38427.54 0.000
53 Fixed 4215000 4204910 56 6/5/01 12/1/96 35745.60 0.000
58 Fixed 4000000 3967749 76 3/1/03 12/1/96 31966.84 0.000
60 Fixed 3700000 3615529 104 7/1/05 12/1/96 35363.28 0.000
61 Fixed 3500000 3468114 38 1/1/00 12/1/96 32671.85 0.000
62 Fixed 3425500 3425500 58 9/1/01 12/1/96 28840.56 0.000
65 Fixed 3264000 3254865 76 3/1/03 12/1/96 30552.76 0.000
71 Fixed 2100000 2080869 38 1/1/00 12/1/96 19603.11 0.000
72 Fixed 600000 594534 38 1/1/00 12/1/96 5600.89 0.000
87 Fixed 2023400 1983391 60 11/1/01 12/1/96 18458.02 0.000
</TABLE>
<TABLE>
<CAPTION>
Next Interest
Loan Interest Adjustment Life Life
Counter Adj Date Frequency Cap Floor Group
<S> <C> <C> <C> <C> <C>
9 0.000 0.000 Group 2
10 0.000 0.000 Group 2
11 0.000 0.000 Group 2
14 0.000 0.000 Group 2
15 0.000 0.000 Group 2
16 0.000 0.000 Group 2
17 0.000 0.000 Group 2
18 0.000 0.000 Group 2
20 0.000 0.000 Group 2
28 0.000 0.000 Group 2
29 0.000 0.000 Group 2
40 0.000 0.000 Group 2
42 0.000 0.000 Group 2
46 0.000 0.000 Group 2
47 0.000 0.000 Group 2
52 0.000 0.000 Group 2
53 0.000 0.000 Group 2
58 0.000 0.000 Group 2
60 0.000 0.000 Group 2
61 0.000 0.000 Group 2
62 0.000 0.000 Group 2
65 0.000 0.000 Group 2
71 0.000 0.000 Group 2
72 0.000 0.000 Group 2
87 0.000 0.000 Group 2
</TABLE>
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section
2(b), collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most
recent endorsee prior to the Trustee or, if none, by
the originator, without recourse, either in blank or
to the order of the Trustee in the following form:
"Pay to the order of State Street Bank and Trust
Company, as trustee for the registered holders of
GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1996-C1, without
recourse";
(ii) 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;
(iii) an original assignment of the Mortgage, in recordable
form, executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the
originator, either in blank or in favor of the
Trustee (in such capacity);
(iv) the original or a copy of the 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;
(v) 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 (iii) above;
(vi) an original or 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;
(vii) 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 (iii) above;
(viii) originals or copies of all assumption, modification,
written assurance and substitution agreements, with
evidence of recording thereon if 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;
(ix) the original or a copy of the lender's title
insurance policy issued as of the date of the
origination of the Mortgage Loan, 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;
(x) 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 Seller at the time
the Mortgage Files were delivered to the Trustee;
(xi) (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
<PAGE>
-2-
Mortgaged Property (in each case with evidence of
filing thereon) and which were in the possession of
the Seller (or its agent) at the time the Mortgage
Files were delivered to the Interim Custodian and (B)
if any such security interest is perfected and the
earlier UCC financing statements and continuation
statements were in the possession of the 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;
(xii) 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 signed on behalf of the mortgagor; and
(xiii) if the mortgagor has a leasehold interest in the
related Mortgaged Property, the original ground lease
or a copy thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser, the Trustee or the Interim Custodian, such
term shall not be deemed to include such documents and instruments required to
be included therein unless they are actually so received.
[KIM-7675:~1.NY01] 11/19/96 8:26pm
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby
represents and warrants, as of the date hereinbelow specified or, if no such
date is specified, as of the Closing Date, that:
(i) Immediately prior to the transfer thereof to the
Purchaser, the Seller had good and marketable title to, and was the
sole owner and holder of, such Mortgage Loan, free and clear of any and
all liens, encumbrances and other interests on, in or to such Mortgage
Loan (other than, in certain cases, the right of a subservicer to
primary service such Mortgage Loan).
(ii) The Seller has full right and authority to sell, assign
and transfer such Mortgage Loan. No provision of the Mortgage Note,
Mortgage or other loan document relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such
Mortgage Loan.
(iii) The information pertaining to such Mortgage Loan set
forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Cut-off Date, 30
days or more delinquent in respect of any Monthly Payment of principal
and/or interest required thereunder, without giving effect to any
applicable grace period.
(v) The Mortgage for such Mortgage Loan constitutes a valid
first lien upon the related Mortgaged Property, including all buildings
located thereon and all fixtures attached thereto, subject only to (and
such Mortgaged Property is free and clear of all encumbrances and liens
having priority over the lien of such Mortgage, except for) (A) the
lien of current real property taxes and assessments not yet due and
payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, and (C) exceptions and
exclusions specifically referred to in the lender's title insurance
policy issued or, as evidenced by a "marked-up" commitment, to be
issued in respect of such Mortgage Loan (the exceptions set forth in
the foregoing clauses (A), (B) and (C) collectively, "Permitted
Encumbrances"). The Permitted Encumbrances do not materially interfere
with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property, or the
current ability of the related Mortgaged Property to generate net
operating income sufficient to service the Mortgage Loan.
(vi) The lien of the related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of the related Mortgage
Loan, its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the related Mortgage Loan
after all advances of principal, subject only to Permitted Encumbrances
(or, if a title insurance policy has not yet been issued in respect of
any Mortgage Loan, a policy meeting the foregoing description is
evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). To the Seller's actual knowledge, no material
claims have been made under such title policy and no claims have been
paid thereunder.
(vii) The Seller has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage
or Mortgage Note.
(viii) There is no valid offset, defense or counterclaim to
such Mortgage Loan.
(ix) The Seller has not received actual notice (A) that there
is any proceeding pending or threatened for the total or partial
condemnation of the related Mortgaged Property or (B) that there is any
material damage at the related Mortgaged Property that materially and
adversely affects the value of such Mortgaged Property.
(x) At origination, such Mortgage Loan complied in all
material respects with all requirements of federal, state and local
laws, including, without limitation, laws relating to usury, relating
to the origination of such Mortgage Loan.
<PAGE>
-2-
(xi) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage for such Mortgage Loan
and all other documents and instruments evidencing, guaranteeing,
insuring or otherwise securing such Mortgage Loan have been duly and
properly executed by the parties thereto, and each is the legal, valid
and binding obligation of the maker thereof (subject to any
non-recourse provisions contained in any of the foregoing agreements
and any applicable state anti-deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally
and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(xiii) All improvements upon the related Mortgaged Property
securing a Mortgage Loan are insured against loss by hazards of
extended coverage in an amount (subject to a customary deductible) at
least equal to the lesser of the outstanding principal balance of such
Mortgage Loan and 100% of the full insurable replacement cost of the
improvements located on the related Mortgaged Property, and if
applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. If any portion
of the related Mortgaged Property securing any Mortgage Loan was, at
the time of the origination of such Mortgage Loan, in an area
identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards, and flood insurance was
available, a flood insurance policy meeting any requirements of the
then current guidelines of the Federal Insurance Administration is in
effect with a generally acceptable insurance carrier, in an amount
representing coverage not less than the least of (1) the outstanding
principal balance of such Mortgage Loan, (2) the full insurable value
of such Mortgaged Property, (3) the maximum amount of insurance
available under the National Flood Insurance Act of 1968, as amended,
and (4) 100% of the replacement cost of the improvements located on the
related Mortgage Property. All other insurance required under the
Mortgage for such Mortgage Loan is in full force and effect with
respect to the related Mortgaged Property.
(xiv) The related Mortgaged Property was subject to one or
more environmental site assessments (or an update of a previously
conducted assessment), which was (were) performed on behalf of the
Seller, or as to which the related report was delivered to the Seller
in connection with its origination or acquisition of such Mortgage
Loan; and the Seller, having made no independent inquiry other than
reviewing the resulting report(s) and/or employing an environmental
consultant to perform the assessment(s) referenced herein, has no
knowledge of any material and adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed
in the related report(s). The Seller has not taken any action with
respect to such Mortgage Loan or the related Mortgaged Property that
could subject the Purchaser, or its successors and assigns in respect
of the Mortgage Loan, to any liability under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") or any other applicable federal, state or local
environmental law, and the Seller has not received any actual notice of
a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property
that was not disclosed in the related report.
(xv) Such Mortgage Loan is not cross-collateralized with a
mortgage loan outside the Mortgage Pool.
(xvi) The terms of the Mortgage and the Mortgage Note for such
Mortgage Loan have not been impaired, waived, altered or modified in
any material respect, except as specifically set forth in the related
Mortgage File.
(xvii) There are no delinquent taxes, ground rents, water
charges, sewer rents, insurance premiums, assessments or other similar
outstanding charges affecting the related Mortgaged Property.
(xviii) Except in the case of Mortgage Loans as to which the
interest of the related mortgagor in the related Mortgaged Property is
a leasehold estate, the interest of the related mortgagor in each
related Mortgaged Property consists of a fee simple estate in real
property.
(xix) Such Mortgage Loan is a whole loan and not a
participation interest.
(xx) The assignment of the related Mortgage referred to in
clause (iii) of Exhibit B constitutes the legal, valid and binding
assignment of such Mortgage from the relevant assignor to the assignee,
and the assignment of the related assignment of
<PAGE>
-3-
leases, if any, referred to in clause (v) of Exhibit B constitutes the
legal, valid and binding assignment thereof from the relevant assignor
to the Trustee.
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan that
were required to be delivered to the mortgagee under the terms of the
related loan documents, have been received and, to the extent of any
remaining balances thereof are in the possession, or under the control,
of the Seller or its agents (which shall include the Master Servicer).
(xxii) As of the date of origination of such Mortgage Loan
and, to the actual knowledge of the Seller, as of the Closing Date, the
related Mortgaged Property was and is free and clear of any mechanics'
and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage.
(xxiii) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at
the time of origination of such Mortgage Loan lies outside the
boundaries and building restriction lines of such property to any
material extent (unless affirmatively covered by the title insurance
referred to in paragraph (vi) above); no improvements on adjoining
properties materially encroach upon such Mortgaged Property to any
material extent; and no improvement located on or forming part of such
Mortgaged Property is in material violation of any applicable zoning
laws or ordinances (except to the extent that they may constitute legal
non-conforming uses).
(xxiv) To the extent required under applicable law as of the
Closing Date, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent
necessary to ensure the enforceability of such Mortgage Loan.
(xxv) There is no material default, breach or event of
acceleration existing under the related Mortgage or Mortgage Note, and
the Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute such a material default, breach or event of acceleration;
provided, however, that this representation and warranty does not cover
any default, breach or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and
warranty made by the Seller in any of paragraphs (iv), (xiv), (xvii),
(xxi), (xxiii) and (xxix) of this Exhibit C.
(xxvi) If the Mortgage Loan is an ARM Loan, all of the terms
of the related Mortgage Note pertaining to interest rate adjustments,
payment adjustments and adjustments of the principal balance are
enforceable, such adjustments will not affect the priority of the
mortgage lien, and all such adjustments and all calculations made
before the Cut-off Date were made correctly and in full compliance with
the terms of the related Mortgage and Mortgage Note.
(xxvii) The Mortgage Loan does not contain any equity
participation by the lender or provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property.
(xxviii) No holder of the Mortgage Loan has, to the Seller's
knowledge, advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Loan.
(xxix) To the Seller's knowledge, based on due diligence
customarily performed in the origination of comparable mortgage loans,
as of the date of origination of the Mortgage Loan, (A) the related
mortgagor was in possession of all material licenses, permits and
authorizations required by applicable laws for the ownership and
operation of the related Mortgaged Property as it was then operated and
(B) all such licenses, permits and authorizations were valid and in
full force and effect.
(xxx) The servicing and collection practices used with respect
to the Mortgage Loans have been in all material respects legal and
prudent and have met customary standards utilized by prudent
institutional commercial and multifamily mortgage loan servicers.
(xxxi) The related Mortgage or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in paragraph (xii)) such as to
render the rights and remedies of the holders thereof
<PAGE>
-4-
adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be
provided thereby.
(xxxii) The provisions of the related Mortgage provide that
insurance proceeds and condemnation proceeds will be applied either to
restore or repair the Mortgaged Property or to repay the principal of
the Mortgage Loan or otherwise at the option of the mortgagee.
(xxxiii) The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the noncontingent
principal amount of the Mortgage Loan and either: (A) such Mortgage
Loan is secured by an interest in real property having a fair market
value (1) at the date the Mortgage Loan was originated at least equal
to 80 percent of the original principal balance of the Mortgage Loan or
(2) at the Closing Date at least equal to 80 percent of the principal
balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first
be reduced by (X) the amount of any lien on the real property interest
that is senior to the Mortgage Loan and (Y) a proportionate amount of
any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in clauses (1)
and (2) of this paragraph (xxxiii) shall be made on a pro rata basis in
accordance with the fair market values of the Mortgaged Properties
securing such cross-collateralized Mortgage Loans; or (B) substantially
all the proceeds of such Mortgage Loan were used to acquire, improve or
protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party
credit enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(xxxiv) Any Mortgage Loan that was "significantly modified"
prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (A) was modified as a result of the
default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the
Mortgage Loan was originated) or clause (A)(2) of paragraph (xxxiii),
including the proviso thereto.
(xxxv) To the Seller's actual knowledge, there are no pending
or threatened actions, suits or proceedings by or before any court or
governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined
adversely to such Mortgagor or Mortgaged Property, would materially and
adversely affect the value of the Mortgaged Property or the ability of
the Mortgagor to pay principal, interest or any other amounts due under
such Mortgage Loan.
(xxxvi) If such Mortgage Loan is secured in whole or in part
by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (or portion thereof) (a "GROUND LEASE"), but not by
the related fee interest in such Mortgaged Property (or portion
thereof) (the "FEE INTEREST"):
(A) To the actual knowledge of the Seller, such Ground
Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest
of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material
change in the terms of such Ground Lease since its
recordation, with the exception of written
instruments which are a part of the related Mortgage
File;
(B) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with,
the related Mortgage, other than the related Fee
Interest and Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and
assigns upon notice to, but without the consent of,
the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is
further assignable by the Purchaser and its
successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor,
except with respect to one Mortgage Loan, with
respect to which any further assignment requires the
consent of the lessor, but which consent cannot be
unreasonably withheld;
(D) At the Closing Date, such Ground Lease is in full
force and effect and no default has occurred under
such Ground Lease, nor to the actual knowledge of the
Seller, is there any existing condition which, but
for the
<PAGE>
-5-
passage of time or the giving of notice, or both,
would result in a default under the terms of such
Ground Lease;
(E) Such Ground Lease requires the lessor thereunder to
give notice of any default by the lessee to the
mortgagee, provided that the mortgagee has provided
the lessor with notice of its lien in accordance with
the provisions of such Ground Lease, and such Ground
Lease, or an estoppel letter received by the
mortgagee from the lessor, further provides that no
notice of termination given under such Ground Lease
is effective against the mortgagee unless a copy has
been delivered to the mortgagee in the manner
described in such Ground Lease;
(F) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under such
Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice
of any such default, before the lessor thereunder may
terminate such Ground Lease;
(G) Such Ground Lease has an original term (including any
extension options set forth therein) which extends
not less than ten (10) years beyond the Stated
Maturity Date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance
proceeds other than in respect of a total or
substantially total loss or taking, will be applied
either to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or
a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or
restoration progresses (except in such cases where a
provision entitling another party to hold and
disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial
mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon, with any
excess proceeds available for application at the
option of the mortgagee; and
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender;
and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of
an uncured default, to disturb the possession,
interest or quiet enjoyment of any lessee in the
relevant portion of the Mortgaged Property subject to
such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security
provided by the related Mortgage.
(xxxvii) If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage.
(xxxviii) Except as described in the next sentence, the
related Mortgage Note or Mortgage does not require the mortgagee to
release all or any portion of the related Mortgaged Property from the
lien of the related Mortgage except upon payment in full of all amounts
due under such Mortgage Loan. The Mortgages relating to the Mortgage
Loans secured by properties described as 500 Enterprise Drive and Tech
Center in the Mortgage Loan Schedule require the mortgagee to grant
releases of portions of the related Mortgaged Properties upon the
payment of a specified release price.
It is understood and agreed that the representations and
warranties set forth in this Exhibit C shall survive delivery of the respective
Mortgage Files to the Purchaser, the Trustee and/or the Interim Custodian and
shall inure to the benefit of the Purchaser, and its successors and assigns
(including without limitation the Trustee and the holders of the Certificates)
notwithstanding any restrictive or qualified endorsement or assignment.
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
CERTIFICATE OF OFFICER OF ING (U.S.) CAPITAL CORPORATION ("ING CAPITAL")
I, _________________, a __________ of ING Capital (the "Seller"),
hereby certify as follows:
The Seller is a Corporation duly organized and validly existing under
the laws of the State of Delaware.
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation
or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Seller and his genuine signature is set
forth opposite his name:
NAME OFFICE SIGNATURE
___________________ ________________ ___________________
___________________ ________________ ___________________
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of October 30, 1996
(the "Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
July 10, 1996.
By:_________________________________
Name:
Title:
I, [name], [title], hereby certify that __________________ is a duly
elected or appointed, as the case may be, qualified and acting ___________ of
the Seller and that the signatures appearing above are such officer's genuine
signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
__________, 1996.
By:_________________________________
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF ING (U.S) CAPITAL CORPORATION
In connection with the execution and delivery by ING (U.S.) Capital
Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
October 30, 1996 (the "Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. and the Seller, the Seller hereby certifies that (i) the
representations and warranties of the Seller in the Purchase Agreement are true
and correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Purchase Agreement.
Certified this 7th day of November, 1996.
ING (U.S.) CAPITAL CORPORATION
By:______________________________________
Name:
Title:
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EXHIBIT D-3
FORM OF OPINION OF COUNSEL TO THE SELLER
November 7, 1996
GMAC Commercial Mortgage Securities, Inc.
650 Dresher Road
Horsham, Pennsylvania 19044-8015
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036-8293
Re: Mortgage Loan Purchase Agreement, dated as of October 30, 1996,
between Internationale Nederlanden (U.S.) Capital Corporation
(known as ING (U.S.) Capital Corporation as of November 1,
1996) and GMAC Commercial Mortgage Securities, Inc.
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as counsel of
ING (U.S.) Capital Corporation (the "Seller"), pursuant to Section 8(e) of the
Mortgage Loan Purchase Agreement, dated as of October 30, 1996 (the "Purchase
Agreement"), between GMAC Commercial Mortgage Securities, Inc. (the "Purchaser")
and the Seller, relating to the sale by the Seller of certain mortgage loans
(the "Mortgage Loans"). Capitalized terms not otherwise defined herein have the
meanings set assigned to them in the Purchase Agreement.
I (or attorneys under my supervision) have examined originals or
copies, certified or otherwise identified to my satisfaction, of such corporate
records of the Seller, certificates of public officials, officers of the Seller
and other persons and other documents, agreements and instruments and have made
such other investigations as I have deemed necessary or appropriate for purposes
of this opinion.
Based upon the foregoing, I am of the opinion that:
1. The Seller is a Corporation validly existing under the laws of
the State of Delaware, with full power authority under such
laws to own its properties and assets and to conduct its
business as contemplated in the Purchase Agreement and to
enter into and perform its obligations under the Purchase
Agreement.
2. The Purchase Agreement has been duly authorized, executed and
delivered by the Seller and, upon due authorization, execution
and delivery by the Purchaser, will constitute a valid, legal
and binding agreement of the Seller, enforceable against the
Seller in accordance with its terms, except as enforceability
may be limited by (a) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
relating to or affecting the enforcement of creditors rights
generally, (b) general principles of equity, whether
enforcement is sought in a proceeding in equity or at
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law, and (c) public policy considerations underlying the
securities laws, to the extent such public policy
considerations limit the enforceability of the provisions of
such agreement that purport to provide indemnification from
securities law liabilities.
3. No consent, approval, authorization or order of any court,
governmental agency or body is required in connection with the
execution and delivery by the Seller of the Purchase
Agreement, except for those consents, approvals,
authorizations or orders that previously have been obtained.
4. The transfer of the Mortgage Loans as provided in the Purchase
Agreement and the fulfillment of the terms of the Purchase
Agreement will not conflict with or result in a violation of
the Certificate of Incorporation or the By-Laws of the Seller
or any agreement or instrument, order, writ, judgment or
decree known to us to which the Seller is a party or is
subject.
5. To the best of our knowledge, there are no actions or
proceedings against the Seller, pending (with regard to which
the Seller has received service of process) or overtly
threatened in writing before any court, governmental agency or
arbitrator which affect the enforceability of the Purchase
Agreement, or which would draw into question the validity of
the Purchase Agreement or any action taken or to be taken in
connection with the Seller's obligations contemplated therein,
or which would materially impair the Seller's ability to
perform under the terms of the Purchase Agreement.
6. Nothing has come to our attention that would lead us to
believe that, insofar as it relates to the characteristics of
the Mortgage Loans, the real properties that secure such or
the related borrowers or relates to the description of the
Seller, the Prospectus (other than any accounting, financial
or statistical information included therein, as to which no
opinion is expressed), at the date of the Prospectus
Supplement or at the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
The opinions expressed herein are limited to the laws of the State of
Delaware, the State of New York and the federal law of the United States.
This opinion is given to you for your sole benefit, and no other person
or entity is entitled to rely hereon without our express written consent.
Very truly yours,
