<PAGE>
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
Date of Report (Date of Earliest Event Reported) September 30, 1997
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GMAC Commercial Mortgage Securities, Inc.
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(Exact Name of Registrant as Specified in its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
33-94448 23-2811925
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(Commission File Number) (I.R.S. Employer Identification No.)
650 Dresher Road
Horsham, Pennsylvania 19044
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(Address of Principal Executive Offices) (Zip Code)
215-328-3480
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
Description of the Certificates and the Mortgage Pool.
On September 30, 1997, a single series of certificates, entitled GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 1997-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 September 1, 1997, among GMAC Commercial Mortgage
Securities, Inc. as depositor (the "Depositor"), GMAC Commercial Mortgage
Corporation as master servicer and special servicer, LaSalle National Bank as
trustee, and ABN AMRO Bank N.V. as fiscal agent. The Certificates consist of
sixteen classes identified as the "Class X Certificates", the "Class A-1
Certificates", the "Class A-2 Certificates", the "Class A-3 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 J Certificates", the
"Class K 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 September 1, 1997 (the "Cut-off
Date"), an aggregate principal balance of $1,696,984,278 (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 Depositor
acquired certain of the Trust Fund assets from GMAC Commercial Mortgage
Corporation ("GMACCM") pursuant to a mortgage loan purchase agreement dated
September 25, 1997, attached hereto as Exhibit 99.1, between GMACCM as seller
and the Depositor as purchaser. The Depositor acquired certain of the Trust
Fund assets from German American Capital Corporation ("GACC") pursuant to a
mortgage loan purchase agreement dated September 25, 1997, attached hereto as
Exhibit 99.2, between GACC as seller and the Depositor as purchaser. The
Depositor acquired certain of the Trust Fund assets from ContiTrade Services
L.L.C. ("ContiTrade") pursuant to a mortgage loan purchase agreement dated
September 25, 1997, attached hereto as Exhibit 99.3, between ContiTrade as
seller and the Depositor as purchaser. Certain obligations of ContiTrade under
the mortgage loan purchase agreement to which it is a party were guaranteed by
ContiFinancial Corporation ("ContiFinancial") pursuant to a guaranty agreement
dated September 25, 1997, attached hereto as Exhibit 99.4, from ContiFinancial
in favor of the Depositor and certain others, and the Depositor assigned
certain of its rights under such guaranty agreement to the Trustee for the
benefit of Certificateholders pursuant to the Pooling and Servicing Agreement.
The Depositor sold the Class X, Class A-1, Class A-2, Class A-3, Class B, Class
C, Class D, Class E and Class F Certificates to Deutsche Morgan Grenfell Inc.
("DMG") and Lehman Brothers Inc. ("Lehman") as representatives for themselves
and the other underwriters pursuant to an underwriting agreement dated
September 25, 1997, attached hereto as Exhibit 1.1, between DMG and Lehman as
representatives for themselves and the other underwriters and the Depositor.
The Depositor sold the Class G, Class H, Class J, Class K, Class R-I, Class
R-II and Class R-III Certificates to DMG and Lehman pursuant to a certificate
purchase agreement dated September 25, 1997 between DMG and Lehman as initial
purchasers and the Depositor.
The Class X Certificates will not have an 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 $1,696,984,278.
The Class A-1 Certificates have an initial Certificate Balance of $261,582,000.
The Class A-2 Certificates have an initial Certificate Balance of $227,661,000.
The Class A-3 Certificates have an initial Certificate Balance of $724,100,000.
The Class B Certificates have an initial Certificate Balance of $67,879,000.
The Class C Certificates have an initial Certificate Balance of $50,909,000.
The Class D Certificates have an initial Certificate Balance of $50,909,000.
The Class E Certificates have an initial Certificate Balance of $93,334,000.
The Class F Certificates will have an initial Certificate Balance of
$25,454,000. The Class G Certificates will have an initial Certificate Balance
of $84,849,000. The Class H Certificates will have an initial Certificate
Balance of $59,394,000. The Class J Certificates will have an initial
Certificate Balance of $16,969,000. The Class K Certificates will have an
initial
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<PAGE>
Certificate Balance of $33,944,278. The Class R-I, Class R-II and Class R-III
Certificates each have an initial Certificate Balance of $0.
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
<TABLE>
<CAPTION>
EXHIBIT
NO. DOCUMENT DESCRIPTION
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<S> <C>
1.1 Underwriting Agreement, dated as of September 25, 1997, between GMAC Commercial Mortgage
Securities, Inc. as seller and Deutsche Morgan Grenfell Inc. and Lehman Brothers Inc. as
representatives for themselves and the other underwriters.
4.1 Pooling and Servicing Agreement, dated as of September 1, 1997, among GMAC Commercial
Mortgage Securities, Inc. as depositor, GMAC Commercial Mortgage Corporation as master
servicer and special servicer, LaSalle National Bank as trustee, and ABN AMRO Bank N.V. as
fiscal agent.
99.1 Mortgage Loan Purchase Agreement, dated as of September 25, 1997, between GMAC Commercial
Mortgage Corporation as seller and GMAC Commercial Mortgage Securities, Inc. as purchaser.
99.2 Mortgage Loan Purchase Agreement, dated as of September 25, 1997, between German American
Capital Corporation as seller and GMAC Commercial Mortgage Securities, Inc. as purchaser.
99.3 Mortgage Loan Purchase Agreement, dated as of September 25, 1997 between ContiTrade Services
L.L.C. as seller and GMAC Commercial Mortgage Securities, Inc. as purchaser.
99.4 Guaranty Agreement, dated September 25, 1997, from ContiFinancial Corporation as Guarantor
in favor of GMAC Commercial Mortgage Securities, Inc. and certain others.
</TABLE>
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
(Registrant)
Dated: October 15, 1997 By: /s/ Philip Thigpen, Jr.
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Name: Philip Thigpen, Jr.
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Title: Senior Vice President
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<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DOCUMENT DESCRIPTION
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<S> <C>
1.1 Underwriting Agreement, dated as of September 25, 1997, between GMAC Commercial Mortgage
Securities, Inc. as seller and Deutsche Morgan Grenfell Inc. and Lehman Brothers Inc. as
representatives for themselves and the other underwriters.
4.1 Pooling and Servicing Agreement, dated as of September 1, 1997, among GMAC Commercial
Mortgage Securities, Inc. as depositor, GMAC Commercial Mortgage Corporation as master
servicer and special servicer, LaSalle National Bank as trustee, and ABN AMRO Bank N.V. as
fiscal agent.
99.1 Mortgage Loan Purchase Agreement, dated as of September 25, 1997, between GMAC Commercial
Mortgage Corporation as seller and GMAC Commercial Mortgage Securities, Inc. as purchaser.
99.2 Mortgage Loan Purchase Agreement, dated as of September 25, 1997, between German American
Capital Corporation as seller and GMAC Commercial Mortgage Securities, Inc. as purchaser.
99.3 Mortgage Loan Purchase Agreement, dated as of September 25, 1997 between ContiTrade Services
L.L.C. as seller and GMAC Commercial Mortgage Securities, Inc. as purchaser.
99.4 Guaranty Agreement, dated September 25, 1997, from ContiFinancial Corporation as Guarantor
in favor of GMAC Commercial Mortgage Securities, Inc. and certain others.
</TABLE>
<PAGE>
EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$1,501,828,000
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1997-C1
CLASS X, CLASS A-1, CLASS A-2, CLASS A-3,
CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F
UNDERWRITING AGREEMENT
----------------------
as of September 25, 1997
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
and
Lehman Brothers Inc.
Three World Financial Center
New York, New York 10028
As Representatives of the several
Underwriters named in Schedule I hereto
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 each of you is acting as representative
(together, the "Representatives"), the respective classes of Mortgage
Pass-Through Certificates, Series 1997-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, Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E
and Class F Certificates (collectively, the "Certificates"), together with the
Class G, Class H, Class J and Class K 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 multifamily and commercial mortgage loans (the "Mortgage Loans") as
described in the Prospectus Supplement (as hereinafter defined) to be sold by
the Company.
<PAGE>
The Certificates will be issued under a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of September
1, 1997 (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"), LaSalle National Bank as trustee (the "Trustee"), and ABN AMRO Bank
N.V. (the "Fiscal Agent"). The Certificates are described in the Basic
Prospectus and the Prospectus Supplement (each as hereinafter defined) which
the Company has furnished to the Representatives.
Certain of the Mortgage Loans (the "Conti Mortgage Loans") will be
acquired by the Company from ContiTrade Services, L.L.C. ("Conti") pursuant to
a mortgage loan purchase agreement, dated as of September 25, 1997 (the "Conti
Purchase Agreement"), between the Company and Conti. Certain of the Mortgage
Loans (the "GACC Mortgage Loans") will be acquired by the Company from German
American Capital Corporation ("GACC") pursuant to a mortgage loan purchase
agreement, dated as of September 25, 1997 (the "GACC Purchase Agreement"),
between the Company and GACC. 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 September 25, 1997 (the "GMACCM
Purchase Agreement"), between the Company and GMACCM (the GMACCM Mortgage
Loans, together with the Conti Mortgage Loans and the GACC Mortgage Loans, the
"Mortgage Loans"). Conti, GACC and GMACCM together constitute the "Mortgage
Loan Sellers" and the Conti Purchase Agreement, the GACC Purchase Agreement and
the GMACCM Purchase Agreement together 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 September 25, 1997 (the
"Prospectus Supplement"), to the prospectus dated September 15, 1997
(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
(including, without limitation, and only for purposes of
clarification, any information filed with the Commission pursuant to a
Current Report on Form 8-K), together with any amendment thereof or
supplement thereto authorized by the Company on or prior to the
Closing Date for use in connection with
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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". As used herein, "Pool Information" means the
compilation of information and data regarding the Mortgage Loans
covered by the Agreed Upon Procedures Letter dated September 25, 1997
and rendered by Deloitte & Touche, L.L.P. (a "hard copy" of which Pool
Information was initialed on behalf of each Mortgage Loan Seller and
the Company).
(b) The Registration Statement has become effective,
and the Registration Statement as of its effective date (the
"Effective Date"), and the Prospec tus, 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, 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-7
through A-12, 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,
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<PAGE>
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(a), 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 Representatives 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, 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 Representatives 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
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<PAGE>
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 Representative, on behalf of itself and 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 $25,000 or less
initial principal balance or evidencing percentage interests in such
class of less than 20%, as the case may be, the fair market value of
all such Certificates sold to any single Person on the date of initial
sale thereof by such Underwriter will not be less than $100,000.
(b) 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 Each 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 behalf of such Underwriters.
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
agrees, 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 Mayer, Brown & Platt at 10:00 a.m., New York
City time, on September 30, 1997 or such later date as the Representatives
shall designate, which date and time may be postponed by agreement between the
Representatives and the Company (such date and time of delivery and payment for
the Certificates being herein called the "Closing
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<PAGE>
Date"). Delivery of the Certificates (also referred to herein as the "DTC
Registered Certificates") shall be made to the Representatives for the
respective accounts of the Underwriters through DTC, in each case against
payment by the Underwriters to or upon the order of each Mortgage Loan Seller
by wire transfer in immediately available funds of the amount to which such
Mortgage Loan Seller is entitled in accordance with the terms of an allocation
agreement dated the date hereof (the "Allocation Agreement"), to which each
such Mortgage Loan Seller and the Company, among others, are parties. As a
further condition to the delivery of the DTC Registered Certificates, each
Representative shall have furnished by telephonic notice to the applicable
Mortgage Loan Seller the federal reference number for the related wire transfer
to such Mortgage Loan Seller and shall have furnished to the Company each such
federal reference number as soon as practicable after such federal reference
number becomes available.
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 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 No-Action 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
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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:
"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, subsections (c)(i)
and (c)(ii) 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
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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 Prospectus, such Underwriter
shall prepare revised Computational Materials or ABS Term Sheets, as
the case may be, based on the final Pool Information and final
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 the applicable 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
-8-
<PAGE>
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.
(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 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 E 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 E 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
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<PAGE>
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 Representatives 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 the Representatives 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 Representatives, 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
Representatives 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 Representatives 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.
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<PAGE>
5.6 The Company will endeavor to arrange for the
qualification of the Certificates for sale under the laws of such jurisdictions
as the Representatives 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 respon sible 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 Representatives 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) hereof 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,
in 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 L.L.P., certified public accountants, satisfactory in form and substance
to the Company, 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
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<PAGE>
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, 1996, 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
Mayer, Brown & Platt, 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 Maria Corpora-Buck, 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 L.L.P., 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"
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<PAGE>
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 Mayer, Brown &
Platt, special counsel to the Company, and from Maria Corpora-Buck, 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 counsel to
each Mortgage Loan Seller, the opinions substantially to the effect set forth
in Exhibit D-3A and D-3B 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.
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
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<PAGE>
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 or Pool 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, except that each of the Company
and GMACCM will be liable to the extent any such loss, claim, damage or
liability is caused by errors in the portion of the Pool Information relating
to the GMACCM Mortgage Loans.
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 who controls the Company or GMACCM within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act 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 the extent of any errors in the Computational
Materials or ABS Term Sheets that are caused by errors in the Pool Information.
In addition, the Underwriter agrees to indemnify and hold harmless the Company,
GMACCM, their respective directors or officers and any person who controls the
Company or GMACCM within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act 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
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<PAGE>
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
Representatives, in the case of parties indem nified 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 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
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<PAGE>
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 any 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 consider ations 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.
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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
Underwriters 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 Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Certificates, and if
such nondefaulting Underwriters do not purchase all of the Certificates, this
Agreement will terminate without liability to the nondefaulting Underwriters,
the Company or GMACCM. In the event of a default by any 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
Underwriters 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 each Representative at
the following address: Deutsche Morgan Grenfell, 31 West 52nd Street, New York,
New York 10019, Attention: Kenneth Gilison and Lehman Brothers Inc., Three
World Financial Center, New York, New York 10028, Attention James Blakemore;
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: Structured Finance Manager with a copy to the General
Counsel, GMAC Commercial Mortgage Corporation; 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: Structured Finance
Manager with a copy to the General Counsel, GMAC Commercial Mortgage
Corporation.
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 con trolling persons referred to in Section 7
hereof, and their successors and assigns, and no other person will have any
right or obligation hereunder.
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<PAGE>
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.
14. Counterparts. This Agreement may be executed in any numbe
of counterparts, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
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<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: Senior Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ Elisa George
------------------------------
Name: Elisa George
Title: Senior Vice President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
DEUTSCHE MORGAN GRENFELL INC.
By: /s/ Joel C. Horne
-------------------------------
Name: Joel C. Horne
-----------------------------
Title: Director
----------------------------
LEHMAN BROTHERS INC.
By: /s/ Michael Mazzei
-------------------------------
Name: Michael Mazzei
-----------------------------
Title: Managing Director
----------------------------
For itself and the other Underwriters named in Schedule I to the foregoing
Agreement.
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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 1997-C1, Class X-1, Class A-1, Class
A-2, Class A-3, Class B, Class C, Class D, Class E and Class F
Underwriters: Deutsche Morgan Grenfell Inc. ("DMG"), Lehman Brothers
Inc. ("Lehman"), Llama Company, L.P. ("Llama"), Morgan Stanley & Co.
Incorporated ("Morgan Stanley") and Residential Funding Securities Corporation
("RFSC")
Underwriting Agreement, dated as of September 25, 1997
Cut-off Date: September 1, 1997
Allocations: Subject to the terms and conditions of the Underwriting
Agreement, each Underwriter has agreed to purchase the percentage of each class
of Certificates as set forth below:
ALLOCATION TABLE
<TABLE>
<CAPTION>
UNDERWRITER CLASS X CLASS A-1 CLASS A-2 CLASS A-3 CLASS B CLASS C CLASS D CLASS E CLASS F
- ----------- ------- --------- --------- --------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Deutsche Morgan Grenfell Inc... 60% 54% 52% 50% 56% 54% 60% 60% 60%
Lehman Brothers Inc............ 40% 36% 34% 33% 37% 36% 40% 40% 40%
Llama Company, L.P............. 0 3% 3% 3% 7% 10% 0 0 0
Morgan Stanley & Co.
Incorporated................... 0 7% 11% 7% 0 0 0 0 0
Residential Funding Securities
Corporation.................... 0 0 0 7% 0 0 0 0 0
----- ------- ------- ------- ------- ------- ------- ------ -----
Total........................ 100% 100% 100% 100% 100% 100% 100% 100% 100%
===== ======= ======= ======= ======= ======= ======= ====== ====
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Class Initial Class Principal Balance (or in the Initial Purchase Moody's/Fitch
Designation case of Class X, Class Notional Amount)(1) Pass-Through Rate Price(2) Rating
- ----------- ------------------------------------------ ----------------- -------- ------
<S> <C> <C> <C> <C>
X $1,696,984,278.00 1.6287 10.29490 Aaa/AAA
A-1 $261,582,000.00 6.8300 101.49660 Aaa/AAA
A-2 $227,661,000.00 6.8530 101.49800 Aaa/AAA
A-3 $724,100,000.00 6.8690 101.49970 Aaa/AAA
B $67,879,000.00 6.9180 101.49680 Aa2/AA+
C $50,909,000.00 6.8980 100.99650 A1/AA
D $50,909,000.00 6.9970 100.99830 A2/A+
E $93,334,000.00 7.0850 100.49590 Baa2/BBB
F $25,454,000.00 7.2220 99.99590 Baa3/BBB-
</TABLE>
- ------------------------
(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.
- -----------------------------------------------------------------------------
Closing Time, Date and Location: 10:00 a.m. New York City time on
September 30, 1997 at the offices of Mayer, Brown & Platt.
- -----------------------------------------------------------------------------
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 $25,000 in the case of the
Class A-1, Class A-2 and Class A-3 Certificates, $50,000 in the case of the
Class B, Class C, Class D, Class E and Class F Certficiates and $1,000,000 the
case of the Class X Certificates, and integral multiples of $1 in excess
thereof.
<PAGE>
EXHIBIT A-1
[Mayer, Brown & Platt Letterhead]
September 30, 1997
To: Persons listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1997-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
1997-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
September 1, 1997 (the "Pooling and Servicing Agreement"), among the Company as
depositor, GMACCM as master servicer and special servicer, LaSalle National
Bank as trustee (the "Trustee") and ABN AMRO Bank N.V., as fiscal agent (the
"Fiscal Agent").
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 September 25, 1997 the
("GMACCM Mortgage Loan Purchase Agreement"), between GMACCM and the Company.
Certain of the Mortgage Loans (the "Conti Mortgage Loans") were purchased by
the Company from ContiTrade Services L.L.C. ("Conti") pursuant to the Mortgage
Loan Purchase Agreement, dated as of September 25, 1997 (the "Conti Mortgage
Loan Purchase Agreement"), between Conti and the Company. Certain of the
Mortgage Loans (the "GACC Mortgage Loans") were purchased by the Company from
German American Capital Corporation ("GACC") pursuant to the Mortgage Loan
Purchase Agreement, dated as of September 25, 1997 (the "GACC Mortgage Loan
Purchase Agreement"), between GACC and the Company.
The Company sold the Class X, Class A-1, Class A-2, Class A-3, Class B,
Class C, Class D, Class E and Class F Certificates (collectively, the "Publicly
Offered Certificates") to Deutsche Morgan Grenfell Inc. and Lehman Brothers
Inc. as representatives (the "Representatives") for themselves and the other
underwriters (the "Underwriters") named in the Underwriting Agreement, dated as
of September 25, 1997 (the "Underwriting Agreement"), among the Company, GMACCM
and the Representatives, and sold the Class G, Class H, Class J, Class K, Class
R-I, Class R-II and R-III Certificates (collectively, the "Privately Offered
Certificates") to Deutsche Morgan Grenfell Inc. and Lehman Brothers Inc. as
initial purchasers (the "Initial Purchasers") pursuant to the Certificate
Purchase Agreement, dated as of September 25, 1997 (the "Certificate Purchase
Agreement"), among the Company, GMACCM and the Initial Purchasers (the
Certificate Purchase Agreement, the Underwriting Agreement, the GMACCM Mortgage
Loan Purchase Agreement, the Conti Mortgage Loan Purchase Agreement, the GACC
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.
A-1-1
<PAGE>
In connection with rendering this opinion letter, we have examined the
Agreements 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 contained therein and, where we have deemed appropriate, separate
additional representations or certifications of parties to the Agreements,
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, 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.
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 Maria Corpora-Buck, 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 State of Illinois, we have relied without
independent investigation on the opinion letter of Latham & Watkins, 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.
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.
A-1-2
<PAGE>
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.
A-1-3
<PAGE>
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 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,
MAYER, BROWN & PLATT
By
A-1-4
<PAGE>
Annex A
GMAC Commercial Mortgage Securities, Inc.
GAMC Commercial Mortgage Corporation
Deutsche Morgan Grenfell Inc.
Lehman Brothers Inc.
Llama Company, L.P.
Morgan Stanley & Co. Incorporated
Residential Funding Securities Corporation
LaSalle National Bank
ABN AMRO Bank N.V.
Fitch Investors Service, L.P.
Moody's Investor's Service, Inc.
Standard & Poor's Ratings Services
A-1-5
<PAGE>
EXHIBIT A-2
[Mayer, Brown & Platt Letterhead]
September 30, 1997
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1997-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 1997-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 September 1, 1997 (the "Pooling and Servicing
Agreement"), among the Company as depositor, GMACCM as master servicer and
special servicer, LaSalle National Bank as trustee (the "Trustee") and ABN AMRO
Bank N.V., as fiscal agent (the "Fiscal Agent").
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 September 25,
1997 the ("GMACCM Mortgage Loan Purchase Agreement"), between GMACCM and the
Company. Certain of the Mortgage Loans (the "Conti Mortgage Loans") were
purchased by the Company from ContiTrade Services L.L.C. ("Conti") pursuant to
the Mortgage Loan Purchase Agreement, dated as of September 25, 1997 (the
"Conti Mortgage Loan Purchase Agreement"), between Conti and the Company.
Certain of the Mortgage Loans (the "GACC Mortgage Loans") were purchased by the
Company from German American Capital Corporation ("GACC") pursuant to the
Mortgage Loan Purchase Agreement, dated as of September 25, 1997 (the "GACC
Mortgage Loan Purchase Agreement"), between GACC and the Company.
The Company sold the Class X, Class A-1, Class A-2, Class A-3, Class
B, Class C, Class D, Class E and Class F Certificates (collectively, the
"Publicly Offered Certificates") to Deutsche Morgan Grenfell Inc. and Lehman
Brothers Inc. as representatives (the "Representatives") for themselves and the
other underwriters (the "Underwriters") named in the Underwriting Agreement,
dated as of September 25, 1997 (the "Underwriting Agreement"), among the
Company, GMACCM and the Representatives, and sold the Class G, Class H, Class
J, Class K, Class R-I, Class R-II and R-III Certificates (collectively, the
"Privately Offered Certificates") to Deutsche Morgan Grenfell Inc. and Lehman
Brothers Inc. as initial purchasers (the "Initial Purchasers") pursuant to the
Certificate Purchase Agreement, dated as of September 25, 1997 (the
"Certificate Purchase Agreement"), among the Company, GMACCM and the Initial
Purchasers (the Certificate Purchase Agreement, the Underwriting Agreement, the
GMACCM Mortgage Loan Purchase Agreement, the Conti Mortgage Loan Purchase
Agreement, the GACC Mortgage Loan Purchase Agreement and the Pooling and
Servicing
A-2-1
<PAGE>
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,
Deutsche Morgan Grenfell Inc. and Lehman Brothers Inc. 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 Asset Pool--The Mortgage Loan Sellers," "Servicing of the
Mortgage Loans--The Servicer" and "Description of the Certificates--The Trustee
and Fiscal Agent", 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 Private Placement 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 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,
MAYER, BROWN & PLATT
By
A-2-2
<PAGE>
Annex A
GMAC Commercial Mortgage Securities, Inc.
GAMC Commercial Mortgage Corporation
Deutsche Morgan Grenfell Inc.
Lehman Brothers Inc.
Llama Company, L.P.
Morgan Stanley & Co. Incorporated
Residential Funding Securities Corporation
A-2-3
<PAGE>
EXHIBIT B
[GMAC Commercial Mortgage Corporation LETTERHEAD]
September 30, 1997
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1997-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 1997-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 September 1, 1997 (the "Pooling and Servicing
Agreement"), among the Company as depositor, GMACCM as master servicer and
special servicer, LaSalle National Bank as trustee (the "Trustee"), and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent").
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 September 25,
1997 the ("GMACCM Mortgage Loan Purchase Agreement"), between GMACCM and the
Company. Certain of the Mortgage Loans (the "Conti Mortgage Loans") were
purchased by the Company from ContiTrade Services L.L.C. ("Conti") pursuant to
the Mortgage Loan Purchase Agreement, dated as of September 25, 1997 (the
"Conti Mortgage Loan Purchase Agreement"), between Conti and the Company.
Certain of the Mortgage Loans (the "GACC Mortgage Loans") were purchased by the
Company from German American Capital Corporation ("GACC") pursuant to the
Mortgage Loan Purchase Agreement, dated as of September 25, 1997 (the "GACC
Mortgage Loan Purchase Agreement"), between GACC and the Company.
The Company sold the Class X, Class A-1, Class A-2, Class A-3, Class
B, Class C, Class D, Class E and Class F Certificates (collectively, the
"Publicly Offered Certificates") to Deutsche Morgan Grenfell Inc. and Lehman
Brothers Inc. as representatives (the "Representatives") for themselves and the
other underwriters (the "Underwriters") named in the Underwriting Agreement,
dated as of September 25, 1997 (the "Underwriting Agreement"), among the
Company, GMACCM and the Representatives, and sold the Class G, Class H, Class
J, Class K, Class R-I, Class R-II and R-III Certificates (collectively, the
"Privately Offered Certificates") to Deutsche Morgan Grenfell Inc. and Lehman
Brothers Inc. as initial purchasers (the "Initial Purchasers") pursuant to the
Certificate Purchase Agreement, dated as of September 25, 1997 (the
"Certificate Purchase Agreement"), among the Company, GMACCM and the Initial
Purchasers (the Certificate Purchase Agreement, the Underwriting Agreement, the
GMACCM Mortgage Loan Purchase Agreement, the Conti Mortgage Loan Purchase
Agreement, the GACC 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.
B-1
<PAGE>
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.
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
B-2
<PAGE>
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 Mayer, Brown & Platt, 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,
Maria Corpora-Buck
General Counsel
B-3
<PAGE>
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Deutsche Morgan Grenfell Inc.
Lehman Brothers Inc.
Llama Company, L.P.
Morgan Stanley & Co. Incorporated
Residential Funding Securities Corporation
LaSalle National Bank
ABN AMRO Bank N.V.
Fitch Investors Service, L.P.
Moody's Investor's Service, Inc.
Standard & Poor's Ratings Services
B-4
<PAGE>
EXHIBIT C
Excluded Information of Prospectus Supplement
(All circled text and tables are excluded)
<PAGE>
EXHIBIT D
Underwriter Information
(All circled text and tables are excluded)
<PAGE>
EXHIBIT E
September __, 1997
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, Pennsylvania 19044
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1997-C1
---------------------------------------------------
Pursuant to Section 4.3 of the Underwriting Agreement, dated September
25, 1997 (the "Underwriting Agreement"), among GMAC Commercial Mortgage
Securities, Inc., GMAC Commercial Mortgage Corporation and of Deutsche Morgan
Grenfell Inc. and Lehman Brothers Inc., each as representative on behalf of
itself and the underwriters set forth therein (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) With respect to each class of Certificates, set forth below is
(i), the first price 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 September 25, 1997; (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: __________________
Class A-1: __________________
Class A-2: __________________
Class A-3: __________________
Class B: __________________
Class C: __________________
Class D: __________________
Class E: __________________
Class F: __________________
[* less than 10% has been sold to the public]
E-1
<PAGE>
The prices set forth above do not include accrued interest with respect to
periods before closing.
DEUTSCHE MORGAN GRENFELL INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
LEHMAN BROTHERS INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
For itself and the other Underwriters
named in Schedule I to the
Underwriting Agreement
E-2
<PAGE>
EXECUTION COPY
===============================================================================
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer
GMAC COMMERCIAL MORTGAGE CORPORATION,
Special Servicer
LASALLE NATIONAL BANK
Trustee,
and
ABN AMRO BANK N.V.,
Fiscal Agent
-------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1997
-------------------------------------------
$1,696,984,278
Mortgage Pass-Through Certificates
Series 1997-C1
===============================================================================
<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
ARTICLE I
DEFINITIONS
SECTION 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.............................................................4
Adverse REMIC Event..........................................................5
Affiliate....................................................................5
Agreement....................................................................5
Anticipated Repayment Date...................................................5
Applicable State Law.........................................................5
Appraisal....................................................................5
Appraisal Reduction Amount...................................................5
Appraised Value..............................................................6
ARD Loan.....................................................................6
Assignment of Leases.........................................................6
Assumed Monthly Payment......................................................6
Available Distribution Amount................................................7
Balloon Mortgage Loan........................................................7
Balloon Payment..............................................................7
Balloon Payment Interest Excess..............................................7
Balloon Payment Interest Shortfall...........................................7
Bankruptcy Code..............................................................8
BCMC.........................................................................8
Breach.......................................................................8
Book-Entry Certificate.......................................................8
Business Day.................................................................8
Cash Collateral Account......................................................8
Cash Collateral Account Agreement............................................8
CERCLA.......................................................................8
Certificate..................................................................8
Certificate Account..........................................................9
Certificate Factor...........................................................9
Certificateholder" or "Holder................................................9
i
<PAGE>
Section Page
- ------- ----
Certificate Notional Amount..................................................9
Certificate Owner............................................................9
Certificate Principal Balance................................................9
Certificate Register........................................................10
Certificate Registrar.......................................................10
Class.......................................................................10
Class A Certificate.........................................................10
Class A-1 Certificate.......................................................10
Class A-2 Certificate.......................................................10
Class A-3 Certificate.......................................................10
Class B Certificate.........................................................10
Class C Certificate.........................................................10
Class D Certificate.........................................................10
Class E Certificate.........................................................10
Class F Certificate.........................................................10
Class G Certificate.........................................................10
Class H Certificate.........................................................11
Class J Certificate.........................................................11
Class K Certificate.........................................................11
Class Notional Amount.......................................................11
Class Principal Balance.....................................................11
Class R-I Certificate.......................................................11
Class R-II Certificate......................................................11
Class R-III Certificate.....................................................11
Class R-I Distribution Amount...............................................12
Class R-II Distribution Amount..............................................12
Class X Certificate.........................................................12
Class X Component...........................................................12
Closing Date................................................................12
Code........................................................................12
Collection Period...........................................................12
Collection Report...........................................................12
Commission..................................................................12
Compensating Interest Payments..............................................12
Component Rate..............................................................12
Conti Guarantor.............................................................14
Conti Guarantor Agreement...................................................14
ContiTrade..................................................................14
Controlling Class...........................................................14
Corporate Trust Office......................................................14
Corrected Mortgage Loan.....................................................14
CPR.........................................................................14
Credit File.................................................................15
ii
<PAGE>
Section Page
- ------- ----
Cross-Collateralized Mortgage Loans.........................................15
Current Principal Distribution Amount.......................................15
Custodian...................................................................16
Cut-off Date................................................................16
Cut-off Date Principal Balance..............................................16
Debt Service Coverage Ratio.................................................16
Debt Service Reduction......................................................16
Defaulted Mortgage Loan.....................................................16
Default Interest............................................................16
Defect......................................................................17
Deficient Valuation.........................................................17
Definitive Certificate......................................................17
Deleted Mortgage Loan.......................................................17
Delinquency Advance.........................................................17
Delinquency Advance Date....................................................17
Delinquent Loan Status Report...............................................17
Depositor...................................................................17
Depository..................................................................17
Depository Participant......................................................18
Determination Date..........................................................18
Directly Operate............................................................18
Discount Rate...............................................................18
Discount Rate Fraction......................................................18
Distributable Certificate Interest..........................................18
Distribution Account........................................................19
Distribution Date...........................................................19
Distribution Date Statement.................................................19
Due Date....................................................................19
Eligible Account............................................................19
Emergency Advance...........................................................19
Environmental Assessment....................................................20
ERISA.......................................................................20
Escrow Payment..............................................................20
Event of Default............................................................20
Excess Interest.............................................................20
Excess Rate.................................................................20
Exchange Act................................................................20
FDIC........................................................................20
FHLMC.......................................................................20
Final Distribution Date.....................................................20
Final Recovery Determination................................................20
Fiscal Agent................................................................21
Fitch.......................................................................21
iii
<PAGE>
Section Page
- ------- ----
Fixed Rate Mortgage Loan....................................................21
FNMA........................................................................21
GMACCM......................................................................21
GACC........................................................................21
Gross Margin................................................................21
Ground Lease................................................................21
Hazardous Materials.........................................................21
Historical Loan Modification Report.........................................22
Historical Loss Report......................................................22
Independent.................................................................22
Independent Contractor......................................................22
Index.......................................................................23
Initial Balance.............................................................23
Initial Class Notional Amount...............................................23
Initial Class Principal Balance.............................................23
Insurance Policy............................................................23
Insurance Proceeds..........................................................23
Interest Accrual Period.....................................................23
Interest Rate Adjustment Date...............................................23
Interested Person...........................................................23
Issue Price.................................................................24
Late Collections............................................................24
Liquidation Event...........................................................24
Liquidation Expenses........................................................24
Liquidation Fee.............................................................24
Liquidation Fee Rate........................................................24
Liquidation Proceeds........................................................25
Loan-to-Value Ratio.........................................................25
Lock-Box Account............................................................25
Lock-Box Agreement..........................................................25
Loss Reimbursement Amount...................................................25
MAI.........................................................................26
Majority Certificateholder..................................................26
Master Servicer.............................................................26
Master Servicer Remittance Date.............................................26
Master Servicer Remittance Report...........................................26
Master Servicing Fee........................................................26
Master Servicing Fee Rate...................................................26
Maturity Assumptions........................................................26
Maturity Date...............................................................27
Modified Mortgage Loan......................................................28
Monthly Payment.............................................................28
Moody's.....................................................................28
iv
<PAGE>
Section Page
- ------- ----
Mortgage....................................................................28
Mortgaged Property..........................................................28
Mortgage File...............................................................28
Mortgage Loan...............................................................31
Mortgage Loan Accrual Period................................................31
Mortgage Loan Accrued Interest..............................................31
Mortgage Loan Purchase Agreement............................................31
Mortgage Loan Schedule......................................................31
Mortgage Loan Seller........................................................32
Mortgage Note...............................................................32
Mortgage Pool...............................................................32
Mortgage Rate...............................................................32
Mortgagor...................................................................32
Net Aggregate Prepayment Interest Shortfall.................................32
Net Default Interest........................................................33
Net Investment Earnings.....................................................33
Net Investment Loss.........................................................33
Net Mortgage Rate...........................................................33
Net Operating Income........................................................33
Nonrecoverable Advance......................................................33
Nonrecoverable Delinquency Advance..........................................34
Nonrecoverable Servicing Advance............................................34
Non-Registered Certificate..................................................34
Officer's Certificate.......................................................34
Opinion of Counsel..........................................................34
OTS.........................................................................34
Ownership Interest..........................................................35
Pass-Through Rate...........................................................35
Paul Revere.................................................................35
Payment Adjustment Date.....................................................35
Payment Priority............................................................35
Penalty Charges.............................................................36
Percentage Interest.........................................................36
Permitted Investments.......................................................36
Permitted Transferee .......................................................38
Person......................................................................38
Plan........................................................................39
Preliminary Statement.......................................................39
Prepayment Assumption.......................................................39
Prepayment Interest Excess..................................................39
Prepayment Interest Shortfall...............................................39
Prepayment Premium..........................................................39
Primary Servicing Office....................................................39
v
<PAGE>
Section Page
- ------- ----
Principal Allocation Fraction...............................................39
Principal Balance Certificate...............................................39
Principal Distribution Amount...............................................40
Principal Prepayment........................................................40
Proposed Plan...............................................................40
Prospectus..................................................................40
Purchase Price..............................................................40
Qualified Appraiser.........................................................40
Qualified Insurer...........................................................40
Qualifying Substitute Mortgage Loan.........................................40
Rated Final Distribution Date...............................................41
Rating Agency...............................................................41
Rating Agency Confirmation..................................................41
Realized Loss...............................................................41
Record Date.................................................................42
Registered Certificates.....................................................42
Reimbursement Rate..........................................................42
REMIC.......................................................................42
REMIC I.....................................................................42
REMIC I Regular Interest....................................................43
REMIC I Remittance Rate.....................................................43
REMIC II....................................................................43
REMIC II Regular Interest...................................................43
REMIC II Remittance Rate....................................................43
REMIC III...................................................................44
REMIC III Certificates......................................................44
REMIC III Regular Certificate...............................................44
REMIC Provisions............................................................44
Rents from Real Property....................................................44
REO Account.................................................................44
REO Acquisition.............................................................44
REO Disposition.............................................................44
REO Extension...............................................................44
REO Loan....................................................................44
REO Loan Accrual Period.....................................................45
REO Property................................................................45
REO Revenues................................................................45
REO Status Report...........................................................45
REO Tax.....................................................................45
Replacement Mortgage Loan...................................................45
Request for Release.........................................................45
Required Appraisal Loan.....................................................45
Reserve Account.............................................................46
vi
<PAGE>
Section Page
- ------- ----
Reserve Funds...............................................................46
Residual Certificate........................................................46
Responsible Officer.........................................................46
Revised Rate................................................................46
Securities Act..............................................................46
Security Agreement..........................................................46
Senior Certificate..........................................................46
Servicing Account...........................................................46
Servicing Advances..........................................................46
Servicing Fee Rate..........................................................47
Servicing Fees..............................................................47
Servicing Officer...........................................................47
Servicing Return Date.......................................................47
Servicing Standard..........................................................47
Servicing Transfer Event....................................................47
Special Servicer
Special Servicing Fee.......................................................47
Special Servicing Fee Rate..................................................47
Specially Serviced Mortgage Loan............................................47
Specially Serviced Mortgage Loan Status Report..............................49
Standard & Poor's...........................................................49
Startup Day.................................................................50
Stated Maturity Date........................................................50
Stated Principal Balance....................................................50
Subordinated Certificate....................................................50
Substitution Shortfall Amount...............................................50
Sub-Servicer................................................................50
Sub-Servicing Agreement.....................................................50
Tax Returns.................................................................51
Transfer....................................................................51
Transferee..................................................................51
Transferor..................................................................51
Trust Fund..................................................................51
Trustee.....................................................................51
Trustee Fee.................................................................51
Trustee Fee Rate............................................................51
UCC.........................................................................51
UCC Financing Statement.....................................................51
Uncertificated Accrued Interest.............................................51
Uncertificated Distributable Interest.......................................52
Uncertificated Principal Balance............................................52
Underwriter.................................................................52
Uninsured Cause.............................................................52
vii
<PAGE>
Section Page
- ------- ----
United States Person........................................................53
USPAP.......................................................................53
Voting Rights...............................................................53
Workout Fee.................................................................53
Workout Fee Rate............................................................53
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool..........53
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Establishment of Trust; Conveyance of Mortgage Loans..........55
SECTION 2.02 Acceptance by Trustee.........................................57
SECTION 2.03 Mortgage Loan Sellers' Repurchase of Mortgage Loans for
Defects in Mortgage Files and Breaches of Representations
and Warranties...............................................59
SECTION 2.04 Issuance of Class R-I Certificates; Creation of REMIC I
Regular Interests............................................61
SECTION 2.05 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee......................................61
SECTION 2.06 Issuance of Class R-II Certificates; Creation of REMIC
II Regular Interest..........................................61
SECTION 2.07 Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee.........................................62
SECTION 2.08 Issuance of REMIC III Certificates............................62
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01 Servicing and Administration of the Mortgage Loans............62
SECTION 3.02 Collection of Mortgage Loan Payments..........................64
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts and Reserve Accounts......................64
SECTION 3.04 Certificate Account...........................................66
SECTION 3.05 Permitted Withdrawals From the Certificate Account and
the Distribution Account.....................................69
SECTION 3.06 Investment of Funds in the Certificate Account, the
Distribution Account and the REO Account.....................72
viii
<PAGE>
Section Page
- ------- ----
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage........................................74
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing; Defeasance............................77
SECTION 3.09 Realization Upon Defaulted Mortgage Loans.....................81
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files...............84
SECTION 3.11 Servicing Compensation; Nonrecoverable Servicing Advances.....85
SECTION 3.12 Inspections; Collection of Financial Statements...............89
SECTION 3.13 Annual Statement as to Compliance.............................90
SECTION 3.14 Reports by Independent Public Accountants.....................90
SECTION 3.15 Access to Certain Information.................................91
SECTION 3.16 Title to REO Property; REO Account............................91
SECTION 3.17 Management of REO Property; Independent
Contractors..................................................93
SECTION 3.18 Sale of Defaulted Mortgage Loans and REO
Properties...................................................95
SECTION 3.19 Additional Obligations of the Master Servicer and the
Special Servicer.............................................99
SECTION 3.20 Modifications, Waivers, Amendments and Consents..............101
SECTION 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping............................104
SECTION 3.22 Sub-Servicing Agreements.....................................106
SECTION 3.23 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class..................107
SECTION 3.25 [Intentionally Omitted.].....................................108
SECTION 3.26 [Intentionally Omitted.].....................................108
SECTION 3.27 [Intentionally Omitted.].....................................108
SECTION 3.29 Representations and Warranties of the Master Servicer
and the Special Servicer....................................109
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
AND RELATED MATTERS
SECTION 4.01 Distributions................................................110
SECTION 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer....................119
SECTION 4.03 Delinquency Advances.........................................127
SECTION 4.04 Allocation of Realized Losses and Additional Trust
Fund Expenses...............................................129
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.............................................131
SECTION 5.02 Registration of Transfer and Exchange of
ix
<PAGE>
Section Page
- ------- ----
Certificates................................................132
SECTION 5.03 Book-Entry Certificates......................................137
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............139
SECTION 5.05 Persons Deemed Owners........................................139
SECTION 5.06 Transfer Procedures..........................................139
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............................................140
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....................................140
Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others...................141
SECTION 6.04 Depositor, Master Servicer and Special Servicer Not to
Resign......................................................142
SECTION 6.05 Rights of the Depositor in Respect of the Master Servicer
and the Special Servicer....................................142
ARTICLE VII
DEFAULT
Events of Default............................................143
SECTION 7.02 Trustee to Act; Appointment of Successor.....................146
SECTION 7.03 Notification to Certificateholders...........................147
SECTION 7.04 Waiver of Events of Default..................................147
ARTICLE VIII
CONCERNING THE TRUSTEE AND FISCAL AGENT
SECTION 8.01 Duties of Trustee............................................148
SECTION 8.02 Certain Matters Affecting the Trustee........................149
SECTION 8.03 Trustee and Fiscal Agent not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans...............151
SECTION 8.04 Trustee and the Fiscal Agent May Own Certificates............152
SECTION 8.05 Fees and Expenses of Trustee and the Fiscal Agent;
Indemnification of Trustee..................................152
SECTION 8.06 Eligibility Requirements for Trustee and Fiscal
Agent.......................................................153
SECTION 8.07 Resignation and Removal of the Trustee and the Fiscal
Agent.......................................................153
Successor Trustee...........................................154
x
<PAGE>
Section Page
- ------- ----
SECTION 8.09 Merger or Consolidation of Trustee and Fiscal
Agent.......................................................155
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee................155
SECTION 8.11 Appointment of Custodians....................................156
SECTION 8.12 Access to Certain Information................................156
SECTION 8.13 Representations and Warranties of the Trustee and the
Fiscal Agent................................................158
SECTION 8.14 Filings with the Securities and Exchange Commission
............................................................160
SECTION 8.15 Fiscal Agent Termination Event. ............................160
SECTION 8.16 Procedure Upon Termination Event.............................161
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................161
SECTION 9.02 Additional Termination Requirements..........................163
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.........................................164
SECTION 10.02 Depositor, Master Servicer, Special Servicer, Fiscal Agent
and Trustee to Cooperate....................................167
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment....................................................169
SECTION 11.02 Recordation of Agreement; Counterparts.......................171
SECTION 11.03 Limitation on Rights of Certificateholders...................171
SECTION 11.04 GOVERNING LAW................................................172
SECTION 11.05 Notices......................................................172
SECTION 11.06 Severability of Provisions...................................173
SECTION 11.07 Grant of a Security Interest.................................173
SECTION 11.08 Successors and Assigns; Beneficiaries........................174
SECTION 11.09 Article and Section Headings.................................174
SECTION 11.10 Notices to the Rating Agencies...............................174
xi
<PAGE>
EXHIBITS
- --------
Exhibit A-1 Form of Class X Certificate
Exhibit A-2 Form of Class A-1 Certificate
Exhibit A-3 Form of Class A-2 Certificate
Exhibit A-4 Form of Class A-3 Certificate
Exhibit A-5 Form of Class B Certificate
Exhibit A-6 Form of Class C Certificate
Exhibit A-7 Form of Class D Certificate
Exhibit A-8 Form of Class E Certificate
Exhibit A-9 Form of Class F Certificate
Exhibit A-10 Form of Class G Certificate
Exhibit A-11 Form of Class H Certificate
Exhibit A-12 Form of Class J Certificate
Exhibit A-13 Form of Class K Certificate
Exhibit A-14 Form of Class R-I Certificate
Exhibit A-15 Form of Class R-II Certificate
Exhibit A-16 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 Request for Release
Exhibit E Form of UCC-1 Financing Statement
Exhibit F Methodology to Normalize Net Operating
Income and Debt Service Coverage
Exhibit G Form of Distribution Date Statement
Exhibit H Form of Master Servicer Report
Exhibit I Certain Reports
Schedules
- ---------
Schedule I Mortgage Loan Schedule
xii
<PAGE>
This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of September 1, 1997, among GMAC COMMERCIAL MORTGAGE SECURITIES,
INC., as Depositor, GMAC COMMERCIAL MORTGAGE CORPORATION, as Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION, as Special Servicer, LaSalle National
Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, to be issued hereunder
in multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust Fund to be created hereunder, the primary
assets of which will be the Mortgage Loans. The aggregate of the initial Stated
Principal Balances of the Mortgage Loans is approximately $1,696,984,278.
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 (as defined
herein) and the initial Uncertificated Principal Balance of each such REMIC I
Regular Interest shall be based on the Net Mortgage Rate and the Cut-off Date
Principal Balance, respectively, for the related Mortgage Loan. Determined
solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each such REMIC I
Regular Interest shall be the first Distribution Date that follows the Stated
Maturity Date for the related Mortgage Loan. None of the REMIC I Regular
Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as REMIC II. The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, REMIC II Remittance Rate and the initial Uncertificated Principal
Balance for each of the REMIC II Regular Interests. Determined solely for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each REMIC II Regular Interest shall be the
first Distribution Date that is at least two years after the end of the
remaining amortization schedule of the Mortgage Loan that has, as of the
Closing Date, the longest remaining amortization schedule, irrespective of its
scheduled maturity. None of the REMIC II Regular Interests will be
certificated.
<PAGE>
2
REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
- ----------- --------------- -----------------
LA-1..................... Variable (*) $261,582,000
LA-2..................... Variable (*) 227,661,000
LA-3..................... Variable (*) 724,100,000
LB....................... Variable (*) 67,879,000
LC....................... Variable (*) 50,909,000
LD....................... Variable (*) 50,909,000
LE....................... Variable (*) 93,334,000
LF....................... Variable (*) 25,454,000
LG....................... Variable (*) 84,849,000
LH....................... Variable (*) 59,394,000
LJ....................... Variable (*) 16,969,000
LK....................... Variable (*) 33,944,278
* Calculated in accordance with the definition of "REMIC II Remittance Rate."
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III". The Class R-III Certificates will represent the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, the Pass-Through Rate and initial Class Principal Balance for each
of the Classes of REMIC III Regular Certificates. Determined solely for
purposes of satisfying Treasury regulation section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each Class of REMIC III Regular
Certificates shall be the first Distribution Date that is at least two years
after the end of the remaining amortization schedule of the Mortgage Loan that
has, as of the Closing Date, the longest remaining amortization schedule,
irrespective of its scheduled maturity.
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3
Certificate Initial Class
Designation Pass-Through Rate Principal Balance
- ----------- ----------------- -----------------
Class X.................. N/A(1) N/A(2)
Class A-1................ 6.830% $261,582,000
Class A-2................ 6.853% 227,661,000
Class A-3................ 6.869% 724,100,000
Class B.................. 6.918% 67,879,000
Class C.................. 6.898% 50,909,000
Class D.................. 6.997% 50,909,000
Class E.................. 7.085% 93,334,000
Class F.................. 7.222% 25,454,000
Class G.................. 7.414(3)% 84,849,000
Class H.................. 6.600(3)% 59,394,000
Class J.................. 6.600(3)% 16,969,000
Class K.................. 6.600(3)% 33,944,278
(1) The Pass-Through Rate for the Class X Certificates as described
herein.
(2) The Class X Certificate will have an original Notional Amount of
$1,696,984,278. The Class X Certificates will not have a Certificate
Balance and will not be entitled to any distribution of certificate
principal.
(3) Lesser of the indicated Fixed Rate or the Weighted Average Net
Mortgage Rate.
Capitalized terms used in this Preliminary Statement are defined in
Article I hereof.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent agree as follows:
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4
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 for any Distribution Date, one month's interest
(calculated on the basis of a 360-day year consisting of twelve 30-day months)
at the Pass-Through Rate applicable to such Class of Certificates for such
Distribution Date, accrued on the Class Principal Balance or Class Notional
Amount, as the case may be, of such Class of Certificates outstanding
immediately prior to such Distribution Date. The Accrued Certificate Interest
in respect of any Class of REMIC III Regular Certificates for any Distribution
Date shall be deemed to have accrued during the applicable Interest Accrual
Period.
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulation Section 1.856-6(b)(1), which is the first
day on which the Trust Fund is treated as the owner of such REO Property for
federal income tax purposes.
"Additional 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.
"Advance Interest": Interest accrued on any Advance at the Master
Servicer Reimbursement Rate and payable to the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, all in
accordance with Section 3.11(f) or Section 4.03(d), as applicable.
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5
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any ARD Loan, designated
as such in the Mortgage Loan Schedule, the date upon which such ARD Loan starts
to accrue interest at its Revised Rate.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of the state 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 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, the Trustee or the
Fiscal Agent, all accrued and unpaid interest on such Required Appraisal Loan
through the most recent Due Date prior to such Determination Date at a per
annum rate equal to the related Mortgage Rate, (iii) all related unreimbursed
Advances made by or on behalf of the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent in respect of such Required Appraisal Loan,
together with all unpaid Advance Interest accrued on
<PAGE>
6
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.
"ARD Loan": Any Mortgage Loan that is designated as such in the
Mortgage Loan Schedule.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents, security deposits and profits or similar
instrument executed by the Mortgagor, assigning to the mortgagee all of the
income, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment": With respect to any Balloon Mortgage Loan
for its Stated Maturity Date (provided that such 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 the Stated Maturity Date and each such subsequent 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
<PAGE>
7
Determination Date, (ii) the aggregate amount of any Delinquency Advances made
by the Master Servicer or Trustee for such Distribution Date pursuant to
Section 4.03, (iii) the aggregate of any Compensating Interest Payments made by
the Master Servicer for such Distribution Date pursuant to Section 3.19, (iv)
the aggregate amount of any Excess Interest received for such Distribution
Date, and (v) 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) - (vi),
inclusive, of Section 3.05(b), (iv) Prepayment Premiums, and (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) 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).
"BCMC": Boston Capital Mortgage Company Limited Partnership.
<PAGE>
8
"Breach": As defined in Section 2.03(a).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, and the cities in which the
Primary Servicing Offices of the Master Servicer and the Special Servicer and
the city in which the Corporate Trust Office of the Trustee is located, are
authorized or obligated by law or executive order to remain closed.
"Cash Collateral Account": With respect to any Mortgage Loan that has
a Lock-Box Account, any account or accounts created pursuant to the related
Mortgage Loan, Cash Collateral Account Agreement or other loan document, into
which account or accounts the Lock-Box Account monies are swept on a regular
basis for the benefit of the Trustee as successor to the Mortgage Loan Seller's
interest in the Mortgage Loans. Any Cash Collateral Account shall be
beneficially owned for federal income tax purposes by the Person who is
entitled to receive all reinvestment income or gain thereon in accordance with
the terms and provisions of the related Mortgage Loan and Section 3.06, which
Person shall be taxed on all reinvestment income or gain thereon. The Master
Servicer shall be permitted to make withdrawals therefrom solely for deposit
into the Certificate Account. To the extent not inconsistent with the terms of
the related Mortgage Loan, each such Cash Collateral Account shall be an
Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage
Loan, the cash collateral account agreement, if any, between the originator of
such Mortgage Loan and the related Mortgagor, pursuant to which the related
Cash Collateral Account, if any, may have been established.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Mortgage Pass-Through
Certificates, Series 1997-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 or the Class Notional Amount, as the
<PAGE>
9
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 Fiscal Agent, 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.
"Certificate Notional Amount": With respect to any Class X
Certificate, as of any date of determination, the then notional principal
amount on which such Certificate accrues interest equal to the product of (a)
the Percentage Interest evidenced by such Certificate, multiplied by (b) the
then Class Notional Amount of the Class X Certificates.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to any Principal Balance
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificate": Any one of the Class A-1, Class A-2 or Class
A-3 Certificates.
<PAGE>
10
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
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11
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class Notional Amount": The aggregate notional principal amount on
which the Class X Certificates accrue interest from time to time which, as of
any date of determination, is equal to the then aggregate of the Uncertificated
Principal Balances of REMIC II Regular Interests LA-1, LA-2, LA-3, LB, LC, LD,
LE, LF, LG, LH, LJ and LK.
"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-14
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-15 attached hereto, and evidencing the sole class of "residual interests" in
REMIC II for purposes of the REMIC Provisions.
"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-16 attached hereto, and evidencing the sole class of "residual interests" in
REMIC III for purposes of the REMIC Provisions.
"Class R-I Distribution Amount": Any amounts available to be paid to
the holders of the Class R-I Certificates after all REMIC I Regular Interests
have been paid in full.
"Class R-II Distribution Amount": Any amounts available to be paid to
the holders of the Class R-II Certificates after all REMIC II Regular Interests
have been paid in full.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-1, and
evidencing a "regular interest" in REMIC III for purposes of the REMIC
Provisions.
"Class X Component": Any of the 12 components comprising the Class X
Certificates which are identified as Class LA-1, LA-2, LA-3, LB, LC, LD, LE,
LF, LG, LH, LJ and LK Components.
"Closing Date": September 30, 1997.
<PAGE>
12
"Code": The Internal Revenue Code of 1986, as amended.
"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.
"Component Rate": As to each of the Class X Components, the rate set
forth below with respect thereto:
Class LA-1 Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class A-1
Pass-Through Rate.
Class LA-2 Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class A-2
Pass-Through Rate.
Class LA-3 Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class A-3
Pass-Through Rate.
Class LB Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class B Pass-
Through Rate.
Class LC Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class C Pass-
Through Rate.
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13
Class LD Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class D Pass-
Through Rate for such Distribution Date.
Class LE Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class E Pass-
Through Rate for such Distribution Date.
Class LF Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class F
Pass-Through Rate for such Distribution Date.
Class LG Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class G Pass-
Through Rate for such Distribution Date.
Class LH Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class H Pass-
Through Rate for such Distribution Date.
Class LJ Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class J
Pass-Through Rate for such Distribution Date.
Class LK Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class K Pass-
Through Rate for such Distribution Date.
"Conti Guarantor": ContiFinancial Corporation or its successor in
interest.
"Conti Guarantor Agreement": The Guaranty Agreement dated as of
September 25, 1997, from the Conti Guarantor in favor of the Depositor and
certain other specified beneficiaries.
"ContiTrade": ContiTrade Services L.L.C. or its successor in interest.
<PAGE>
14
"Controlling Class": As of any date of determination, the outstanding
Class of Principal Balance Certificates with the lowest Payment Priority (the
Class A Certificates being treated as a single Class for this purpose) that has
a then outstanding Class Principal Balance at least equal to 25% of the Initial
Class Principal Balance thereof (or, if no Class of Principal Balance
Certificates outstanding has a Class Principal Balance at least equal to 25% of
the Initial Class Principal Balance thereof, then the "Controlling Class" shall
be the outstanding Class of Principal Balance Certificates with the then
largest remaining Class Principal Balance, and if two or more classes of
Principal Balance Certificates have the largest remaining Class Principal
Balances, the outstanding class of Principal Balance Certificates with the
lowest Payment Priority). Initially, the Controlling Class will consist of the
Class K 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 135 South LaSalle Street,
Chicago, IL 60674-4107, Attention: Asset-Backed Securities Trust Services Group
- - GMAC Commercial Mortgage Securities, Inc. Series 1997-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).
"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 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 for their
respective Due Dates occurring during the related Collection Period;
(b) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
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15
(c) with respect to any Balloon Mortgage Loan 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 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 of the REO Loans, in each case net of
any portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in respect
of any such REO Loan or the related Mortgage Loan on a Due Date during or
prior to 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": September 1, 1997.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of the Cut-off
Date, after application of all payments of principal due on or before such
date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan (or
group of Cross-Collateralized Mortgage Loans) for any specified period, the
debt service coverage ratio calculated in accordance with Exhibit I using the
methodologies set forth in Exhibit F.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, other than a
reduction resulting from a Deficient Valuation.
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"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent in an
amount equal to at least two Monthly Payments or is delinquent thirty days or
more in respect of its Balloon Payment, if any, in either case such delinquency
to be determined without giving effect to any grace period permitted by the
related Mortgage or Mortgage Note and without regard to any acceleration of
payments under the related Mortgage and Mortgage Note.
"Default Interest": With respect to any Mortgage Loan (or related REO
Loan), any amounts collected thereon, other than 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.
"Defeasance Collateral": Noncallable government obligations of (or
non-callable obligations, fully guaranteed as to timely payment by) the United
States of America, as are permitted under the terms of a Mortgage Note or
related Mortgage Loan Documents, but only if such obligations or assets
constitute "government securities" under the defeasance rule of the REMIC
Provisions.
"Defeasance Loan": A Mortgage Loan that is designated as such on the
Mortgage Loan Schedule.
"Defeasance Option": The right of a Mortgagor, pursuant to the terms
of the related Mortgage Note or related Mortgage Loan Documents, to obtain a
release of the related Mortgaged Property from the lien of the related
Mortgages upon the pledge to the Trustee of Defeasance Collateral.
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"Delinquency Advance": As to any Mortgage Loan or REO Loan, any
advance made by the Master Servicer, the Trustee or Fiscal Agent pursuant to
Section 4.03.
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"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 H hereto.
"Depositor": GMAC Commercial Mortgage Securities, Inc. or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the 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) 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 each Mortgage Loan, the yield for
"This Week" as reported by the Federal Reserve Board in Federal Reserve
Statistical Release H.15(519) for the
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constant maturity treasury having a maturity coterminus with the Maturity Date
or Anticipated Repayment Date of such Mortgage Loan.
"Discount Rate Fraction":With respect to the distribution of any
Prepayment Premium received with respect to any Mortgage Loan to one or more
Classes of Certificates on any Distribution Date, the lesser of (i) 25% and
(ii) a fraction, (a) the numerator of which is equal to the excess of (x) the
Pass-Through Rate for such Class of Certificates over (y) the relevant Discount
Rate and (b) the denominator of which is equal to the excess of (x) the
Mortgage Rate of the related Mortgage Loan over (y) the relevant Discount Rate;
provided, that if there are two or more of such Classes of Certificates
entitled to distributions from the Principal Distribution Amount on such
Distribution Date, the Pass-Through Rate for purposes of clause (ii)(x) above
will be the Pass-Through Rate for the Class with the earlier alphabetic
designation.
"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 "LaSalle National Bank, as Trustee,
in trust for the registered holders of GMAC Commercial Mortgage Securities,
Inc., Mortgage Pass-Through Certificates, Series 1997-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
October 1997.
"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 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.
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"Eligible Account": An account that is any of the following: (i)
maintained with a depository institution or trust company whose (A) commercial
paper, short-term unsecured debt obligations or other short-term deposits are
rated by any two of the Rating Agencies (provided that one of such two Rating
Agencies shall be Standard & Poor's) at least A-1 and if rated by Fitch, F-1+
(or its equivalent), if the deposits are to be held in the account for less
than 30 days, or (B) long-term unsecured debt obligations are rated by any two
of the Rating Agencies (provided that one of such two Rating Agencies shall be
Standard & Poor's) at least AA- (or its equivalent) and if rated by Fitch, AA,
if the deposits are to be held in the account more than 30 days, or (ii) a
segregated trust account or accounts maintained in the trust department of the
Trustee or other financial institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), or (iii) an account or accounts of a depository
institution acceptable to each Rating Agency, as evidenced by written
confirmation from such Rating Agency to the effect that use of any such account
as the Certificate Account or the Distribution Account would not result in the
downgrade, qualification or withdrawal of the rating then assigned to any Class
of Certificates by such Rating Agency.
"Emergency Advance:" Any Servicing Advance that must be made within
five Business Days by the Special Servicer in order to avoid any material
penalty, any material harm to a Mortgaged Property or any other material
adverse consequence to the Trust Fund.
"Environmental Assessment": A "Phase I assessment" conducted in
accordance with ASTM Standard E 1527-93 or any successor thereto published by
ASTM.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the ARD Loans, interest
accrued on such ARD Loan and allocable to the Excess Rate. The Excess Interest
is an asset of the Trust Fund.
"Excess Rate": With respect to each ARD Loan after the related
Anticipated Repayment Date, the excess of (i) the applicable Revised Rate over
(ii) the applicable initial Mortgage Rate, each as set forth in the Mortgage
Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"FDIC": Federal Deposit Insurance Corporation or any successor.
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"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any defaulted Mortgage Loan or REO Property (other
than a Mortgage Loan or REO Property, as the case may be, that was purchased by
a Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan
Purchase Agreement, 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.
"Fiscal Agent": ABN AMRO Bank N.V., a banking organization organized
under the laws of the Netherlands, its successor in interest, or any successor
Fiscal Agent appointed as provided herein.
"Fiscal Agent Termination Event": As defined in Section 8.15.
"Fitch": Fitch Investors Service, L.P., or its successor in interest.
"Fitch" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer and specific ratings
of Fitch Investors Service, L.P. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Fixed Rate Mortgage Loan": A Mortgage Loan as to which the related
Mortgage Note provides, as of the Closing Date, for a Mortgage Rate that
remains fixed through the remaining term thereof (without regard to any
extension at the Mortgagor's or the mortgagee's option under the terms of the
related Mortgage Loan documents).
"FNMA": Federal National Mortgage Association or any successor.
"GMACCM": GMAC Commercial Mortgage Corporation or its successor in
interest.
"GACC": German American Capital 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
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21
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.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including, without
limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"), radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory", "usable
work in process" or similar classification which would, if classified as
unusable, be included in the foregoing definition.
"Historical Loan Modification Report": A report or reports setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the immediately preceding Determination Date, have been modified
pursuant to this Agreement (i) during the Collection Period ending on such
Determination Date and (ii) since the Cut-off Date, showing the original and
the revised terms thereof, together with such additional information in respect
of each such Mortgage Loan as is contemplated by Exhibit H hereto.
"Historical Loss Report": A report or reports setting forth, among
other things, as of the close of business on the immediately preceding
Determination Date, (i) the amount of Liquidation Proceeds and Liquidation
Expenses, both for the Collection Period ending on such Determination Date and
for all prior Collection Periods, and (ii) the amount of Realized Losses
occurring during such Collection Period and historically, set forth on a
Mortgage Loan-by-Mortgage Loan and REO Property-by-REO Property basis, together
with such additional information in respect of each Mortgage Loan and REO
Property as to which a Final Recovery Determination has been made as is
contemplated by Exhibit H hereto.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Fiscal Agent and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Fiscal Agent or any Affiliate
thereof, and (iii) is not connected with the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent or any Affiliate thereof as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, the Master Servicer, the Special
Servicer or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any class of securities issued by the Depositor, the
Master Servicer or any Affiliate thereof, as the case may be.
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"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 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.
"Initial Balance": The aggregate Cut-off Date Principal Balance of the
Mortgage Loans.
"Initial Class Notional Amount": With respect to the Class X
Certificates, the initial Class Notional Amount thereof as of the Closing Date,
equal to $1,696,984,278.
"Initial Class Principal Balance": With respect to any Class of
Principal Balance Certificates, the initial Class Principal Balance thereof as
of the Closing Date, in each case as set forth in the Preliminary Statement.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance
policy that is maintained from time to time in respect of such Mortgage Loan or
the related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related
Mortgaged Property or released to the Mortgagor, in either case, in accordance
with the Servicing Standard (including any amounts paid by the Master Servicer
or Special Servicer pursuant to Section 3.07).
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"Interest Accrual Period": With respect to any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs.
"Interest Rate Adjustment Date": With respect to each Adjustable Rate
Mortgage Loan (and any successor REO Loan), any date on which the related
Mortgage Rate is subject to adjustment pursuant to the related Mortgage Note.
The first Interest Rate Adjustment Date subsequent to the Cut-off Date for each
Adjustable Rate Mortgage Loan is specified in the Mortgage Loan Schedule, and
successive Interest Rate Adjustment Dates for such Mortgage Loan (and any
successor REO Loan) shall thereafter periodically occur with the frequency
specified in the Mortgage Loan Schedule.
"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, payments of Substitution Shortfall Amounts, or
otherwise, which represent late payments or collec tions 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.
"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 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.
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"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with the liquidation of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.09 or 3.18 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan or REO Property (other than any Specially Serviced Mortgage Loan or REO
Property purchased by the Majority Certificateholder of the Controlling Class,
the Master Servicer or the Special Servicer pursuant to Section 3.18 or by the
Master Servicer or the Depositor pursuant to Section 9.01), the fee designated
as such and payable to the Special Servicer pursuant to Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgaged Loan or REO Property as to which a Liquidation Fee is payable, 1.00%.
"Liquidation Proceeds": Cash amounts (other than Insurance Proceeds
and REO Revenues) received or paid by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property by exercise of the power of eminent domain or condemnation; (ii) the
liquidation of a Mortgaged Property or other collateral constituting security
for a defaulted Mortgage Loan, through trustee's sale, foreclosure sale, REO
Disposition or otherwise, exclusive of any portion thereof required to be
released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iv) the
purchase of a Defaulted Mortgage Loan by the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18(b) or by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c) or any other sale thereof pursuant
to Section 3.18(d); (v) the repurchase of a Mortgage Loan by a Mortgage Loan
Seller pursuant to Section 6 of the related Mortgage Loan Purchase Agreement or
by the Conti Guarantor pursuant to the Conti Guaranty Agreement; (vi) the
payment of any Substitution Shortfall Amount by a Mortgage Loan Seller pursuant
to Section 6 of the related Mortgage Loan Purchase Agreement or by the Conti
Guarantor pursuant to the Conti Guaranty Agreement; or (vii) the purchase of a
Mortgage Loan or REO Property by the Master Servicer or the Depositor pursuant
to Section 9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, the fraction, expressed as a percentage, the numerator
of which is the then unpaid principal balance of such Mortgage Loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property
as determined by an Appraisal thereof.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to any documents relating to a
Mortgage Loan to receive revenues therefrom. Any Lock-Box Account shall be
beneficially owned for federal income tax purposes by the Person who is
entitled to receive the reinvestment income or gain thereon in accordance with
the terms and provisions of the related Mortgage Loan and Section 3.06, which
Person shall be taxed
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on all reinvestment income or gain thereon. The Master Servicer shall be
permitted to make withdrawals therefrom for deposit into the related Cash
Collateral Accounts.
"Lock-Box Agreement": With respect to any Mortgage Loan, the lock-box
agreement, if any, between the originator of such Mortgage Loan and the
Mortgagor, pursuant to which the related Lock-Box Account, if any, is to be
established.
"Loss Reimbursement Amount": With respect to any REMIC I Regular
Interest and any Distribution Date (except the initial Distribution Date, with
respect to which the Loss Reimbursement Amount for such REMIC I Regular
Interest will be zero), an amount equal to (a)(i) the Loss Reimbursement Amount
with respect to such REMIC I Regular Interest for the immediately preceding
Distribution Date, minus (ii) the aggregate of all reimbursements deemed made
to REMIC II on the immediately preceding Distribution Date pursuant to Section
4.01(a)(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.
"Master Servicer Remittance Date": The Business Day preceding each
Distribution Date.
"Master Servicer Remittance Report": A data file prepared by the
Master Servicer and in such media as may be agreed upon by the Master Servicer
and the Trustee containing such information regarding the Mortgage Loans as
will permit the Trustee to calculate the amounts to be distributed to the
Certificateholders pursuant to this Agreement and to furnish the Distribution
Date Statement to Certificateholders required to be delivered hereunder and
containing such additional information as the Master Servicer, the Trustee and
the Depositor may from time to time mutually agree.
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"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 acquired by the Depositor or a Mortgage Loan Seller from the following
Persons, the rate set forth opposite the name of such Person:
BCMC 0.035%
Conti Trade 0.050%
GACC 0.010%
GMACCM 0.020%
Paul Revere 0.010%
"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.
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"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
Fiscal Agent, the 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 LaSalle National Bank,
as trustee for the registered holders of GMAC Commercial
Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 1997-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);
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(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 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;
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(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 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) the related Ground Lease or a copy thereof, if any, 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 (including, without limitation, all Replacement Mortgage Loans). 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.
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30
"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;
(iii) the (A) Mortgage Rate in effect as of the Cut-off Date and (B)
whether such Mortgage Loan is an Adjustable Rate Mortgage Loan
or a Fixed-Rate Loan;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the (A) remaining term to stated maturity, (B) with respect to
each ARD Loan, the Anticipated Repayment Date and (C) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of an Adjustable Rate Mortgage Loan, the (A) Index,
(B) Gross Margin, (C) first Mortgage Rate adjustment date
following the Cut-off Date and the frequency of Mortgage Rate
adjustments, and (D) maximum and minimum lifetime Mortgage
Rate;
(x) whether such Mortgage Loan is an ARD Loan or a Defeasance Loan;
and
(xi) the Servicing Fee Rate.
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 GACC.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
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31
"Mortgage Pool": Collectively, all of the Mortgage Loans (including
any REO Loans and Replacement Loans, but excluding Deleted Mortgage Loans).
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or prior to
its Maturity Date, the fixed or adjustable annualized rate 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.
"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 any of the Certificate
Account, the Distribution Account or the REO Account for any Collection Period,
the amount, if any, by which the aggregate of all interest and other income
realized during such Collection Period on funds relating to the Trust Fund held
in such account, exceeds the aggregate of all losses, if any, incurred during
such Collection Period in connection with the investment of such funds in
accordance with Section 3.06.
"Net Investment Loss": With respect to any of the Certificate Account,
the Distribution Account or the REO 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.
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32
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan, as
of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the Servicing Fee Rate but for purposes of
calculating the REMIC I Remittance Rate, the REMIC II Remittance Rate, and
Weighted Average Net Mortgage Rate, determined without regard to any
modification, waiver or amendment of the terms of such Mortgage Loan, whether
agreed to by the Master Servicer or Special Servicer or resulting from (i) the
bankruptcy, insolvency or similar proceeding involving the related Mortgagor or
(ii) the application of the Revised Rate to any ARD Loan and, with respect to
any Mortgage Loan that does not accrue interest on the basis of a 360-day year
consisting of twelve 30-day months, the Net Mortgage Rate of such Mortgage Loan
for such purposes for any one-month preceding a related Due Date will be the
annualized rate at which interest would have to accrue in respect of such loan
on the basis of a 360-day year consisting of twelve 30-day months in order to
produce the aggregate amount of interest actually accrued in respect of such
loan during such one-month period at the related Mortgage Rate (net of the
related Servicing Fee Rate).
"Net Operating Income": With respect to any Mortgaged Property, for
any specified period, the net operating income calculated in accordance with
Exhibit G using the methodologies set forth in Exhibit F.
"Nonrecoverable Advance": Any Nonrecoverable Delinquency Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable Delinquency Advance": Any Delinquency Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO
Loan which, in the judgment of the Master Servicer or, if applicable, the
Trustee or Fiscal Agent, 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
or Fiscal Agent, that it has made a Nonrecoverable Delinquency Advance or that
any proposed Delinquency Advance, if made, would constitute a Nonrecoverable
Delinquency Advance, shall be evidenced by an Officer's Certificate delivered
to the Depositor and delivered to or retained by the Trustee, detailing a
reasonable basis for such determination. The Trustee and Fiscal Agent 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 or the Fiscal Agent, 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 or the Fiscal Agent 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
<PAGE>
33
the Trustee, detailing a reasonable basis for such determination. The Trustee
and Fiscal Agent shall be entitled to rely conclusively upon any such Officer's
Certificate of the Master Servicer or the Special Servicer, and the Master
Servicer shall be entitled to rely conclusively upon such Officer's Certificate
of the Special Servicer.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class G, Class H, Class J, Class K or Residual Certificate.
"Officer's Certificate": A certificate signed, as applicable, by a
Servicing Officer of the Master Servicer or the Special Servicer or by a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Master Servicer or the
Special Servicer, acceptable and delivered to the Trustee, except that any
opinion of counsel relating to (a) the qualification of REMIC I, REMIC II or
REMIC III as a REMIC or (b) compliance with the REMIC Provisions, must be an
opinion of counsel who is in fact Independent of the Depositor, the Master
Servicer and the Special Servicer.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof may have and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate": With respect to:
(1) the Class X Certificates, (a) for the initial Distribution Date
1.629% per annum, and (b) for any subsequent Distribution Date,
the per annum rate, expressed as a percentage, obtained by
dividing (i) the sum of the product of (a) the Uncertificated
Principal Balance of each Class of REMIC II Regular Interest
immediately prior to such Distribution Date and (b) the related
Component Rate for such Distribution Date by (ii) the Class
Notional Amount.
(2) the Class A-1 Certificates, the Class A-2 Certificates, the Class
A-3 Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates
and the Class F Certificates, for any Distribution Date, the
respective fixed rates per annum specified as such in the
Preliminary Statement; and
(3) the Class G Certificates, the Class H Certificates, the Class J
Certificates and the Class K Certificates, for any Distribution
Date, the lesser of the fixed rate
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34
per annum specified as such in the Preliminary Statement and the
Weighted Average Net Mortgage Rate.
"Paul Revere:" Paul Revere Life Insurance Company and its affiliates.
"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, the Class C Certifi cates; 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; ninth, the
Class J Certificates; tenth, the Class K 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 or the Certificate Notional Amount of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Initial Class Principal Balance or Initial Class Notional Amount of the
relevant Class. With respect to a Residual Certificate, the percentage interest
in distributions to be made with respect to the relevant Class, as stated on
the face of such Certificate.
"Permitted Investments": 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 each Rating Agency in its highest
short-term rating available;
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35
(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 each Rating Agency in its highest
short-term rating available(or, if not rated by Fitch, otherwise acceptable to
Fitch, as applicable, as confirmed in writing that such investment would not,
in and of itself, result in a downgrade, qualification or withdrawal of the
then current ratings assigned to any Class of Certificates by such Rating
Agency); 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 short-term rating of such institution shall be A-1+ in the
case of Standard & Poor's;
(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 each
Rating Agency in its highest short-term rating available (or, if not rated by
Fitch, otherwise acceptable to Fitch, as applicable, as confirmed in writing
that such investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned to any Class
of Certificates by such Rating Agency); provided that such commercial paper
shall have a remaining maturity of not more than 30 days;
(v) a money market fund or a qualified investment fund rated by each
Rating Agency in its highest rating category;
(vi) commercial paper of issuers rated by each Rating Agency in its
highest short-term rating available (or, if not rated by Fitch, otherwise
acceptable to Fitch, as applicable, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to any Class of Certificates by
such 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 (or, if not rated by Fitch, otherwise
acceptable to Fitch, as applicable, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to any Class of Certificates by
such Rating Agency
<PAGE>
36
having a maturity of not more than 30 days); provided that the total amount of
such investment does not exceed the greater of (A) 20% of the then outstanding
principal balance of the Certificates, and (B) the amount of monthly principal
and interest payments (other than Balloon Payments) payable on the Mortgage
Loans during the preceding Collection Period; provided, further, and
notwithstanding the preceding proviso, that if all of the Mortgage Loans are
fully amortizing, then the amount of such investment shall not exceed the
amount of monthly principal and interest payments (other than Balloon Payments)
payable on the Mortgage Loans during the preceding Collection Period;
(viii) fully Federal Deposit Insurance Corporation-insured demand and
time deposits in, or certificates of deposit of, or bankers' acceptances issued
by, any bank or trust company, savings and loan association or savings bank,
the short term obligations of which are rated in the highest short term rating
category by each Rating Agency (or, if not rated by Fitch, otherwise acceptable
to Fitch, as applicable, as confirmed in writing that such investment would
not, in and of itself, result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates); and
(ix) other obligations or securities that are acceptable to each
Rating Agency as a Permitted Investment hereunder and which would not result in
the downgrade, qualification or withdrawal of the then-current rating assigned
to any Class of Certificates by the Rating Agency, as evidenced in writing;
provided, however, that no instrument shall be a Permitted Investment if it
represents, (1) the right to receive only interest payments with respect to the
underlying debt instrument, (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such
underlying obligations, (3) an obligation that has a remaining maturity of
greater than 365 days from the date of acquisition thereof. If an obligation is
rated by Standard & Poor's , 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.
"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
<PAGE>
37
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.
"Preliminary Statement": The introductory section in this Agreement
found on pages 1 through 3 hereof.
"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
Illinois, in the case of the Master Servicer, and California, in the case of
the Special Servicer.
"Principal Allocation Fraction": With respect to any Distribution Date
and each of Class X, A-1, A-2, A-3, B, C, D, E, F and G Certificates, a
fraction the numerator of which is the Principal Distribution Amount allocable
to such Class of Certificate for such Distribution Date and the denominator of
which is the Principal Distribution Amount for all Classes of Certificates as
of such Distribution Date.
"Principal Balance Certificate": Any REMIC III Regular Certificate
other than a Class X Certificate.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of (i) the Current Principal Distribution Amount for such
Distribution Date and (ii), if such Distribution Date is subsequent to the
initial Distribution Date, the excess, if any, of the Principal Distribution
Amount for the preceding Distribution Date, over the aggregate distributions of
principal made on the Principal Balance Certificates in respect of such
Principal Distribution Amount on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor
on a Mortgage Loan which is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month of prepayment.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The Prospectus dated September 15, 1997 as supplemented
by the Prospectus Supplement dated September 25, 1997, 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 , (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),
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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.
"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.
"Qualifying Substitute Mortgage Loan" means, in the case of a Deleted
Mortgage Loan, a Mortgage Loan which, on the date of substitution, (i) has a
principal balance, after deduction of the principal portion of the Monthly
Payment due in the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) is accruing interest at a rate of
interest at least equal to that of the Deleted Mortgage Loan; (iii) has a fixed
Mortgage Rate if the Deleted Mortgage Loan is a Fixed Rate Mortgage Loan and an
adjustable Mortgage Rate (with the same Index, Gross Margin and frequency of
Interest Rate Adjustment Dates and Payment Adjustment Dates as the Deleted
Mortgage Loan) if the Deleted Mortgage Loan is an Adjustable Rate Mortgage
Loan; (iv) is accruing interest on the same basis (for example, a 360-day year
consisting of twelve 30-day months) as the Deleted Mortgage Loan; (v) has a
remaining term to stated maturity not greater than, and not more than two years
less than, that of the Deleted Mortgage Loan; (vi) has an original
Loan-to-Value Ratio not higher than that of the Deleted Mortgage Loan and a
current Loan-to-Value Ratio (equal to the principal balance on the date of
substitution divided by its Appraised Value as determined by an Appraisal dated
not more than twelve months prior to the date of substitution) not higher than
the then current Loan-to-Value Ratio of the Deleted Mortgage Loan; (vii) will
comply with all of the representations and warranties relating to Mortgage
Loans set forth in the related Mortgage Loan Purchase Agreement, as of the date
of substitution; (viii) has an Environmental Assessment relating to the related
Mortgaged Property in its Servicing File; and (ix) as to which the Trustee has
received an Opinion of Counsel, at the related Seller's expense, that such
Mortgage Loan is a "qualified replacement mortgage" within the meaning of
Section 860G(a)(4) of the Code; provided that no Mortgage Loan may have a
Maturity Date after the date three years prior to the Final Rated Distribution
Date, and provided, further, that no such Mortgage Loan shall be substituted
for a Deleted Mortgage Loan unless Rating Agency Confirmation is obtained. In
the event that either one mortgage loan is substituted for more than one
Deleted Mortgage Loan or more than one mortgage loan is substituted for one or
more Deleted Mortgage Loans, then (a) the principal balance referred to in
clause (i) above shall be determined on the basis of aggregate principal
balances and (b) the rates referred to in clauses (ii) and (iii) above and the
remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis. Whenever a Qualifying Substitute
Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to this
Agreement, the party effecting such substitution shall certify that such
Mortgage Loan meets all of the requirements of this definition and shall send
such certification to the Trustee.
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40
"Rated Final Distribution Date": The Distribution Date in July, 2029.
"Rating Agency": Each of Standard & Poor's, Moody's and Fitch.
"Rating Agency Confirmation": With respect to any matter, where
required under this Agreement, confirmation in writing by each Rating Agency
that a proposed action, failure to act, or other event specified herein will
not in and of itself result in the withdrawal, downgrade, or qualification of
the rating assigned by such Rating Agency to any Class of Certificates then
rated by such Rating Agency.
"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, the last
Business Day of the calendar month immediately preceding the month in which
such Distribution Date occurs.
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41
"Registered Certificates": The Class X, Class A-1, Class A-2, Class
A-3, Class B, Class C, Class D, Class E and Class F 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 Cutoff 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,
the Certificate Account and the REO Account (if established); and (iv) the
rights of the Depositor under Sections 2, 4(a) and 6 of each Mortgage Loan
Purchase Agreement assigned by the Depositor to the Trustee. If a Replacement
Mortgage Loan or Loans are substituted for any Deleted Mortgage Loan, the REMIC
I Regular Interest that related to the Deleted Mortgage Loan shall thereafter
relate to such Replacement Mortgage Loan(s).
"REMIC I Regular Interest": With respect to each Mortgage Loan (and
any successor REO Loan), the separate non-certificated beneficial ownership
interest in REMIC I issued hereunder and designated as a "regular interest" in
REMIC I. Each REMIC I Regular Interest shall accrue interest at the related
REMIC I Remittance Rate and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance (which shall equal the Cut-off Date
Principal Balance of the related Mortgage Loan). The designation for each REMIC
I Regular Interest shall be the loan number for the related Mortgage Loan set
forth in the Mortgage Loan Schedule. If a Replacement Mortgage Loan or Loans
are substituted for any Deleted Mortgage Loan, the REMIC I Regular Interest
that related to the Deleted Mortgage Loan shall thereafter relate to such
Replacement Mortgage Loan(s).
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, a rate per annum equal to the Net Mortgage
Rate in effect for the related Mortgage Loan or REO Loan, as the case may be,
as of the commencement of the related Collection Period. If any Mortgage Loan
included in the Trust Fund as of the closing Date is replaced by a Replacement
Mortgage Loan or Loans, the REMIC I Remittance Rate for the related REMIC I
Regular Interest shall still be calculated in accordance with the preceding
sentence based on the Net Mortgage Rate for the Deleted Mortgage Loan.
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42
"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 12 separate non-certificated
beneficial ownership interests in REMIC II issued hereunder designated as a
"regular interest" in REMIC II and identified individually as REMIC II Regular
Interests LA-1, LA-2, LA-3, LB, LC, LD, LE, LF, LG, LH, LJ, and LK. Each REMIC
II Regular Interest shall accrue interest at the related REMIC II Remittance
Rate in effect from time to time and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto. The designations for the respective REMIC II
Regular Interests are set forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate": With respect to each of REMIC II Regular
Interests LA-1, LA-2, LA-3, LB, LC, LD, LE, LF, LG, LH, LJ and LK, for any
Distribution Date, the weighted average of the REMIC I Remittance Rates
(weighted on the basis of the respective Uncertificated Principal Balances of
the related REMIC I Regular Interests immediately prior to such Distribution
Date).
"REMIC III": The segregated pool of assets consisting of all of the
REMIC II Regular Interests, with respect to which a separate REMIC election is
to be made.
"REMIC III 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 Account": A segregated account or accounts created and maintained
by the Special Servicer pursuant to Section 3.16 (b) on behalf of the Trustee
in trust for the Certificateholders, which shall be entitled "GMAC Commercial
Mortgage Corporation, as Special Servicer, in trust for registered holders of
GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 1997-C1.
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
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43
"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).
"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 H attached hereto setting forth, among other things, with respect to
each REO Property that was included in the Trust Fund as of the close of
business on the immediately preceding Determination Date, (i) the Acquisition
Date of such REO Property, (ii) the amount of income collected with respect to
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).
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"REO Tax": As defined in Section 3.17.
"Replacement Mortgage Loan": means any Qualifying Substitute Mortgage
Loan that is substituted for one or more Deleted Mortgage Loans.
"Request for Release": A release signed by a Servicing Officer, in the
form of Exhibit D attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(d).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any cash amounts
or instruments convertible into cash delivered by the related Mortgagor to be
held in escrow by or on behalf of the mortgagee representing reserves for
repairs, replacements, capital improvements and/or environmental testing and
remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I, Class R-II or Class R-III
Certificate.
"Responsible Officer": When used with respect to the initial Trustee,
any officer of the Trustee Asset Backed Securities Trust Services Group with
direct responsibility for the transaction contemplated by this Agreement and
with respect to any successor Trustee, any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any trust officer
or assistant trust officer, or any assistant controller in its corporate trust
department or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers to whom a
particular matter is referred by the Trustee because of such officer's
knowledge of and familiarity with the particular subject.
"Revised Rate": With respect to each ARD Loan, the increased interest
rate after the Anticipated Repayment Date (in the absence of a default) for
such ARD Loan, as calculated and as set forth in the related Mortgage Note or
Mortgage, but in no event shall such rate exceed a rate equal to the applicable
initial Mortgage Rate plus 2.00%.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any security
agreement or equivalent instrument, whether contained in the related Mortgage
or executed separately, creating in favor of the holder of such Mortgage a
security interest in the personal property constituting security for repayment
of such Mortgage Loan.
"Senior Certificate": Any Class X, Class A-1, Class A-2 or Class A-3
Certificate.
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45
"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 or Fiscal Agent in connection with the servicing and
administering of (a) a Mortgage Loan in respect of which a default, delinquency
or other unanticipated event has occurred or as to which a default is imminent
or (b) an REO Property, including, but not limited to, the cost of (i)
compliance with the obligations of the Master Servicer and/or the Special
Servicer set forth in Section 3.03(c) and 3.09(c), (ii) the preservation,
restoration and protection of a Mortgaged Property, (iii) obtaining any
Insurance Proceeds or any Liquidation Proceeds in respect of any Mortgage Loan
or REO Property, (iv) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including foreclosures, and (v) the operation, management,
maintenance and liquidation of any REO Property. All Emergency Advances made by
the Special Servicer hereunder shall be considered "Servicing Advances" for the
purposes hereof.
"Servicing Fee Rate": With respect to any Mortgage Loan, the
percentage rate per annum set forth with respect to such Mortgage Loan on the
Mortgage Loan Schedule.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan, the
Master Servicing Fee, the Trustee Fee, and surveillance fees payable to the
Rating Agencies and the Special Servicing 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".
"Special Servicer": GMACCM, or any successor special servicer
appointed as herein provided.
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46
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan and REO Loan, 0.250% per annum.
"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 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 juris diction 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,
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47
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);
(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.
"Specially Serviced Mortgage 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
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48
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 H hereto.
"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 Fiscal Agent, 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 (or in the
case of a Replacement Mortgage Loan, as of the related date of substitution),
as reduced on each Distribution Date (to not less than zero) by (i) all
payments (or Delinquency Advances in lieu thereof) of, and all other
collections allocated as provided in Section 1.02 to, principal of or with
respect to such Mortgage Loan (or related REO Loan) that are (or, if they had
not been applied to cover any Additional Trust Fund Expense, would have been)
distributed to Certificateholders on such Distribution Date, and (ii) the
principal portion of any Realized Loss incurred in respect of such Mortgage
Loan (or related REO Loan) during the related Collection Period.
Notwithstanding the foregoing, if a Liquidation Event occurs in respect of any
Mortgage Loan or REO Property, then the "Stated Principal Balance" of such
Mortgage Loan or of the related REO Loan, as the case may be, shall be zero
commencing as of the Distribution Date in the Collection Period next following
the Collection Period in which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K or Residual Certificate.
"Substitution Shortfall Amount": means, in connection with the
substitution of one or more Replacement Mortgage Loans for one or more Deleted
Mortgage Loans, the amount, if any, by which the Purchase Price or aggregate
Purchase Price, as the case may be, for such Deleted
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49
Mortgage Loan(s) exceeds the initial Stated Principal Balance or aggregate
Stated Principal Balance, as the case may be, of such Replacement Mortgage
Loan(s).
"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": LaSalle National Bank, its successor in interest, or any
successor trustee appointed as herein provided.
"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": .0035%.
"UCC": As defined in Section 3.06(a).
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"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 which shall be allocated in the same manner as such Net
Aggregate Prepayment Interest Shortfall is allocated amongst the corresponding
REMIC III Regular Certificates.
"Uncertificated Principal Balance": The principal amount of any REMIC
I Regular Interest or REMIC II Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Principal Balance of
each REMIC I Regular Interest shall equal the Cut-off Date Principal Balance of
the related Mortgage Loan. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC I Regular Interest shall be reduced by all
distributions of principal deemed to have been made thereon on such
Distribution Date pursuant to Section 4.01(a) and, if and to the extent
appropriate, shall be further reduced on such Distribution Date as provided in
Section 4.04(a). As of the Closing Date, the Uncertificated Principal Balance
of each REMIC II Regular Interest shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated Principal Balance.
On each Distribution Date, the Uncertificated Principal Balance
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of each such REMIC II Regular Interest shall be reduced by all distributions of
principal deemed to have been made thereon on such Distribution Date pursuant
to Section 4.01(b) and, if and to the extent appropriate, shall be further
reduced on such Distribution Date as provided in Section 4.04(b).
"Underwriter": Each of Deutsche Morgan Grenfell, Inc., Lehman Brothers
Inc., Llama Company, L.P., Morgan Stanley & Co. Incorporated and Residential
Funding Securities Corporation.
"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, an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust for which a court within the United States is able to exercise primary
supervision over its administration and for which one or more United States
Persons have the authority to control all substantial decisions of the trust.
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 98% of the Voting Rights shall be allocated among the
Holders of the various outstanding Classes of Principal Balance Certificates in
proportion to the respective Class Principal Balances of their Certificates, 1%
of the Voting Rights shall be allocated among the Holders of the Class X
Certificates in proportion to the respective Class Notional Amount of such
Certificates, and the remaining Voting Rights shall be allocated equally among
the holders of the respective Classes of the Residual Certificates. Voting
Rights allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests evidenced by their
respective Certificates. Appraisal Reduction Amounts will be allocated in
reduction of the respective Certificate Balances of the Class K, Class J, Class
H, Class G, Class F, Class E, Class D, Class C, Class B and Class A
Certificates, in that order, for purposes of calculating Voting Rights.
"Weighted Average Net Mortgage Rate" means, as of any Distribution
Date, the REMIC II Remittance Rate.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as to
which a Workout Fee is payable, 1.00%.
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SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any group of related
Cross-Collateralized Mortgage Loans in the form of payments from Mortgagors,
Insurance Proceeds and Liquidation Proceeds, shall be applied by the Master
Servicer among such Mortgage Loans in accordance with the express provisions of
the related loan documents and, in the absence of such express provisions, on a
pro rata basis in accordance with the respective amounts then "due and owing"
as to each such Mortgage Loan. All amounts collected in respect of any Mortgage
Loan (whether or not such Mortgage Loan is a Cross-Collateralized Mortgage
Loan) in the form of payments from Mortgagors, Liquidation Proceeds or
Insurance Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage and, in the absence of such express
provisions, shall be applied for purposes of this Agreement: first, as a
recovery of any related unreimbursed Servicing Advances and, if applicable,
unpaid Liquidation Expenses; second, as a recovery of accrued and unpaid
interest at the related Mortgage Rate on such Mortgage Loan to but not
including, as appropriate, the date of receipt or, in the case of a full
Monthly Payment from any Mortgagor, the related Due Date; third, as a recovery
of principal of such Mortgage Loan then due and owing, including, without
limitation, by reason of acceleration of the Mortgage Loan following a default
thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage
Loan, as a recovery of principal to the extent of its entire remaining unpaid
principal balance); fourth, as a recovery of amounts to be currently applied to
the payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar
items; fifth, as a recovery of Reserve Funds to the extent then required to be
held in escrow; sixth, as a recovery of any Prepayment Premium then due and
owing under such Mortgage Loan; seventh, as a recovery of any Penalty Charges
then due and owing under such Mortgage Loan; eighth, as a recovery of any other
amounts then due and owing under such Mortgage Loan; and ninth, 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 Establishment of Trust; Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a trust, appoint the Trustee to serve as trustee
of such trust and assign to the Trustee without recourse for the benefit of the
Certificateholders all the right, title and interest of the Depositor,
including any security interest therein for the benefit of the Depositor, in,
to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule,
(ii) Sections 2, 4(a) 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
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54
related lender's 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 shall hold any
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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) (to the extent
the Trustee has been notified of the execution of a power of attorney with
respect to a particular Mortgage Loan) 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) (to the extent the Trustee has been notified of the
execution of a power of attorney with respect to a particular Mortgage Loan) 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
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anniversary of the Closing Date, 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 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) (to the extent the Trustee has been notified of the execution of a power
of attorney with respect to a particular Mortgage Loan) 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
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 Rating Agencies and the related
Mortgage Loan Seller and shall request that the related Mortgage Loan Seller
(and, in the case of ContiTrade, the Conti Guarantor), within the time period
provided for in the related Mortgage Loan Purchase Agreement, 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, provided, however, that in lieu of
effecting any such repurchase, a Mortgage Loan Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the related Mortgage Loan Purchase Agreement and this Agreement.
As to any Qualifying Substitute Mortgage Loan or Loans, the Trustee
shall direct the related Mortgage Loan Seller to deliver to the Trustee for
such Qualifying Substitute Mortgage Loan or Loans (with a copy to the Master
Servicer), the related Mortgage File(s) with the related Mortgage Note(s)
endorsed as required by clause (i) of the definition of "Mortgage File". No
substitution may be made in any calendar month after the Determination Date for
such month. Monthly Payments due with respect to Qualifying Substitute Mortgage
Loans in the month of substitution shall not be part of the Trust Fund and will
be retained by Master Servicer and remitted by the Master Servicer to the
related Mortgage Loan Seller on the next succeeding Distribution Date. For the
month of Substitution, distributions to Certificateholders will include the
Monthly Payment due on the related Deleted Mortgage Loan for such month and
thereafter the related Mortgage Loan Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan.
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In any month in which the related Mortgage Loan Seller substitutes one
or more Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage
Loans, the Master Servicer will determine the applicable Substitution Shortfall
Amount. The Trustee shall direct the related Mortgage Loan Seller to deposit
cash equal to such amount into the Distribution Account concurrently with the
delivery of the Mortgage File(s) for the Qualifying Substitute Mortgage
Loan(s), without any reimbursement thereof. The Trustee shall also direct the
related Mortgage Loan Seller to give written notice to the Trustee and the
Master Servicer of such deposit, accompanied by an Officers' Certificate as to
the calculation the applicable Substitution Shortfall Amount. The Trustee shall
amend or direct the related Mortgage Loan Seller to amend the Mortgage Loan
Schedule to reflect the removal of each Deleted Mortgage Loan and, if
applicable, the substitution of the Qualifying Substitute Mortgage Loan(s);
and, upon such amendment, the Trustee shall deliver or cause the delivery of
such amended Mortgage Loan Schedule to the other parties hereto. Upon any such
substitution, the Qualifying Substitute Mortgage Loan(s) shall be subject to
the terms of this Agreement in all respects.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.03, the Trustee, the Master
Servicer and the Special Servicer shall each tender promptly to the related
Mortgage Loan Seller, 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. If the affected Mortgage Loan is to be repurchased, the
Trustee shall designate the Certificate Account as the account to which funds
in the amount of the Purchase Price are to be wired.
(c) Section 6 of the related Mortgage Loan Purchase Agreement 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 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 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 Trustee would require were it, in its individual
capacity, the owner of the affected Mortgage Loan(s). The Trustee shall be
reimbursed for the reasonable costs of such enforcement, together with interest
thereon at the Reimbursement Rate: first, from a specific recovery of costs,
expenses or attorneys' fees against the related Mortgage Loan Seller (or if
applicable, the Conti Guarantor); second, pursuant to Section 3.05(a)(viii) out
of the related Purchase Price, to the extent
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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)(ix) out of general collections on the Mortgage Loans on deposit
in the Certificate Account.
SECTION 2.04 Issuance of Class R-I Certificates; Creation of REMIC I
Regular Interests.
Concurrently with the assignment to the Trustee of the assets included
in REMIC I, and in exchange therefor, at the direction of the Depositor, the
REMIC I Regular Interests have been issued hereunder and the Trustee has
executed, and caused the Certificate Registrar to authenticate and deliver, to
or upon the order of the Depositor, the Class R-I Certificates in authorized
denominations. The interests evidenced by the Class R-I Certificates, together
with the REMIC I Regular Interests, constitute the entire beneficial ownership
of REMIC I. The rights of the Class R-I Certificateholders and REMIC II to
receive distributions from the proceeds of REMIC I in respect of the Class R-I
Certificates and the REMIC I Regular Interests, respectively, and all ownership
interests of the Class R-I Certificateholders and REMIC II in and to such
distributions, shall be as set forth in this Agreement.
SECTION 2.05 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Class R-II Certificateholders
and REMIC II Regular Interest holders. The Trustee acknowledges the assignment
to it of the REMIC I Regular Interests and declares that it holds and will hold
the same in trust for the exclusive use and benefit of all present and future
Class R-II Certificateholders and REMIC II Regular Interest holders.
SECTION 2.06 Issuance of Class R-II Certificates; Creation of REMIC II
Regular Interest.
Concurrently with the assignment to the Trustee of the REMIC I Regular
Interests, and in exchange therefor, at the direction of the Depositor, the
REMIC II Regular Interests have been issued hereunder and the Trustee has
executed, and caused the Certificate Registrar to authenticate and deliver, to
or upon the order of the Depositor, the Class R-II Certificates in authorized
denominations. The interests evidenced by the Class R-II Certificates, together
with the REMIC II Regular Interests, constitute the entire beneficial ownership
of REMIC II. The rights of the Class R-II Certificateholders and REMIC III to
receive distributions from the proceeds of REMIC II in respect of the Class
R-II Certificates and the REMIC II Regular Interests, respectively, and all
ownership interests of the Class R-II Certificateholders and REMIC III in and
to such distributions, shall be as set forth in this Agreement.
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SECTION 2.07 Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC II Regular
Interests to the Trustee for the benefit of the REMIC III Certificateholders.
The Trustee acknowledges the assignment to it of the REMIC II Regular Interests
and declares that it holds and will hold the same in trust for the exclusive
use and benefit of all present and future REMIC III Certificateholders.
SECTION 2.08 Issuance of REMIC III Certificates.
Concurrently with the assignment to the Trustee of the REMIC II
Regular Interests, and in exchange therefor, at the direction of the Depositor,
the Trustee has executed, and caused the Certificate Registrar to authenticate
and deliver, to or upon the order of the Depositor, the REMIC III Certificates
in authorized denominations evidencing the entire beneficial ownership of REMIC
III. The rights of the respective Classes of REMIC III Certificateholders to
receive distributions from the proceeds of REMIC III in respect of their REMIC
III Certificates, and all ownership interests of the respective Classes of
REMIC III Certificateholders in and to such distributions, shall be as set
forth in this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01 Servicing and Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service
and administer the Mortgage Loans that it is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee and in the best
interests of and for the benefit of the Certificateholders (as determined by
the Master Servicer or the Special Servicer, as the case may be, in its good
faith and reasonable judgment), in accordance with applicable law, the terms of
this Agreement and the terms of the respective Mortgage Loans and, to the
extent consistent with the foregoing, further as follows: (i) with the same
care, skill and diligence as is normal and usual in its general mortgage
servicing and REO property management activities on behalf of third parties or
on behalf of itself, whichever is higher, with respect to mortgage loans and
REO properties that are comparable to those for which it is responsible
hereunder; (ii) with a view to the timely collection of all scheduled payments
of principal and interest under the Mortgage 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
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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 is
obligated to service and administer pursuant to this Agreement, for an
easement, consent to alteration or demolition, and for other similar matters,
provided that the Master Servicer or the Special Servicer, as the case may be,
determines, exercising its good faith business judgment and in accordance with
the Servicing Standard, that such approval will not affect the security for, or
the timely and full collectability of, the related Mortgage Loan. Subject to
Section 3.10, the Trustee shall furnish, or cause to be furnished, to the
Master Servicer and the Special Servicer any powers of attorney and other
documents necessary or appropriate to enable the Master Servicer or the Special
Servicer, as the case may be, to carry out its servicing and administrative
duties hereunder; provided, however, that the Trustee shall not be held liable,
and shall be indemnified by the Master Servicer or the Special Servicer, as
applicable for any negligence with respect to, or misuse of, any such power of
attorney by the Master Servicer or the Special Servicer, as the case may be.
(b) Subject to Section 3.01(a) , the Master Servicer and the Special
Servicer each shall have full power and authority, acting alone or, subject to
Section 3.22, through Sub-Servicers, to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
necessary or desirable.
(c) The relationship of the Master Servicer and the Special Servicer
to the Trustee and, unless the same Person acts in both capacities, to each
other under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
Unless the same Person acts in both capacities, the Master Servicer shall have
no
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responsibility for the performance by the Special Servicer of its duties under
this Agreement, and the Special Servicer shall have no responsibility for the
performance of the Master Servicer under this Agreement.
SECTION 3.02 Collection of Mortgage Loan Payments.
The Master Servicer (or the Special Servicer with respect to the
Specially Serviced Mortgage Loans) shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement
and the terms and conditions of the Mortgage Loans, follow such collection
procedures as are consistent with the Servicing Standard; provided, however,
that nothing herein contained shall be construed as an express or implied
guarantee by the Master Servicer or the Special Servicer of the collectability
of the Mortgage Loans. Consistent with the foregoing, the Master Servicer may
in its discretion waive any Penalty Charge in connection with any delinquent
payment on a Mortgage Loan (other than a Specially Serviced Mortgage Loan) and
the Special Servicer may in its discretion waive any Penalty Charge in
connection with any delinquent payment on a Specially Serviced Mortgage Loan.
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts and Reserve Accounts.
(a) Each of the Master Servicer (or the Special Servicer with respect
to the Specially Serviced Mortgage Loans) shall establish and maintain one or
more accounts (the "Servicing Accounts"), into which all Escrow Payments shall
be deposited and retained. Servicing Accounts shall be Eligible Accounts.
Withdrawals of amounts so collected in respect of any Mortgage Loan (and
interest earned thereon) from a Servicing Account may be made only to: (i)
effect payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items in respect of the related Mortgaged
Property; (ii) reimburse the Fiscal Agent, the Trustee, the Master Servicer and
the Special Servicer, in that order, as applicable, for any unreimbursed
Servicing Advances made thereby to cover any of the items described in the
immediately preceding clause (i); (iii) refund to the related Mortgagor any
sums as may be deter mined to be overages; (iv) pay interest, if required and
as described below, to the related Mortgagor on balances in the Servicing
Account (or, if and to the extent not payable to the related Mortgagor, to pay
such interest to the Master Servicer or Special Servicer, as applicable); (v)
disburse Insurance Proceeds if required to be applied to the repair or
restoration of the related Mortgaged Property; or (vi) clear and terminate the
Servicing Account at the termination of this Agreement in accordance with
Section 9.01. As part of its servicing duties, the Master Servicer and the
Special Servicer shall pay or cause to be paid to the Mortgagors interest on
funds in Servicing Accounts maintained thereby, to the extent required by law
or the terms of the related Mortgage Loan.
(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
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Mortgage Loans) shall (i) maintain accurate records with respect to each
related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect
thereof, and (ii) use reasonable efforts to obtain, from time to time, all
bills for the payment of such items (including renewal premiums) for Mortgage
Loans which require the related Mortgagor to escrow for the payment of such
items and shall effect payment thereof prior to the applicable penalty or
termination date, employing for such purpose Escrow Payments as allowed under
the terms of the related Mortgage Loan. To the extent that a Mortgage Loan does
not require a Mortgagor to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar
items, the Master Servicer (or the Special Servicer with respect to the
Specially Serviced Mortgaged Loans) shall use reasonable efforts consistent
with the Servicing Standard to cause the related Mortgagor to comply with the
requirements of the related Mortgage for payments in respect of such items at
the time they first become due.
(c) In accordance with the Servicing Standard, the Master Servicer (at
the direction of the Special Servicer in the case of Specially Serviced
Mortgage Loans) shall advance with respect to each related Mortgaged Property
all such funds as are necessary for the purpose of effecting the payment of (i)
real estate taxes, assessments and other similar items that are or may become a
lien thereon, (ii) ground rents (if applicable), and (iii) premiums on
Insurance Policies, in each instance if and to the extent Escrow Payments
collected from the related Mortgagor are insufficient to pay such item when due
and the related Mortgagor has failed to pay such item on a timely basis, and
provided that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance. All such advances shall be reimbursable in
the first instance from related collections from the Mortgagors, and further as
provided in Section 3.05. No costs incurred by the Master Servicer or the
Special Servicer in effecting the payment of real estate taxes, assessments,
ground rents (if applicable) and other similar items on or in respect of the
Mortgaged Properties shall, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balances of the related Mortgage Loans, notwithstanding that the
terms of such Mortgage Loans so permit.
(d) The Master Servicer (or the Special Servicer with respect to
Specially Serviced Mortgage Loans) shall, establish and maintain, as
applicable, one or more accounts (the "Reserve Accounts"), into which all
Reserve Funds, if any, shall be deposited and retained. Withdrawals of amounts
so deposited may be made to pay for, or to reimburse the related Mortgagor in
connection with, the related repairs, environmental remediation, replacements
and/or capital improvements at the related Mortgaged Property if such repairs,
environmental remediation, replacements and/or capital improvements have been
completed, and such withdrawals are made, in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any agreement
with the related Mortgagor governing such Reserve Funds. Subject to the terms
of the related Mortgage Note and Mortgage, all Reserve Accounts shall be
Eligible Accounts.
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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 and Excess Interest) on the Mortgage Loans, late
payment charges and Prepayment Premiums;
(iii) any amounts received from the Special Servicer which are
required to be transferred from the REO Account pursuant to Section 3.16 (c)
and amounts of interest and investment income earned in respect of amounts
relating to the Trust Fund held in any Lock-Box Account or Cash Collateral
Account, if any, and only to the extent not required to be paid to the
applicable Mortgagor under the terms of the related Mortgage Loan documents or
applicable law;
(iv) all Insurance Proceeds and Liquidation Proceeds received in
respect of any Mortgage Loan or REO Property (other than 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
(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,
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assumption fees, amounts collected for mortgagor checks returned for
insufficient funds, ancillary fees and any other amounts that the Master
Servicer and the Special Servicer are entitled to as additional servicing
compensation pursuant to Section 3.11 need not be deposited by the Master
Servicer in the Certificate Account. If the Master Servicer shall deposit in
the Certificate Account any amount not required to be deposited therein, it may
at any time withdraw such amount from the Certificate Account, any provision
herein to the contrary notwithstanding. The Master Servicer shall promptly
deliver to the Special Servicer as additional servicing compensation in
accordance with Section 3.11(d), assumption fees, modification fees, ancillary
fees and other transaction fees due to and received by the Master Servicer with
respect to Specially Serviced Mortgage Loans. The Certificate Account shall be
maintained as a segregated account, separate and apart from trust funds created
for mortgage pass-through certificates of other series serviced and the other
accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i), (ii) and
(iv) above with respect to any Mortgage Loan which is not an REO Loan, the
Special Servicer shall promptly, but in no event later than two Business Days
after receipt, remit such amounts to the Master Servicer for deposit into the
Certificate Account in accordance with the second preceding paragraph, unless
the Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer
with respect to an REO Property shall be deposited by the Special Servicer into
the REO Account and remitted to the Master Servicer for deposit into the
Certificate Account pursuant to Section 3.16 (c). With respect to any such
amounts paid by check to the order of the Special Servicer, the Special
Servicer shall endorse such check to the order of the Master Servicer and shall
deliver promptly, but in no event later than two Business Days after receipt,
any such check to the Master Servicer by overnight courier, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement
or other appropriate reason.
Funds in the Certificate Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall give notice to the Trustee, the Special Servicer and the
Depositor of the location of the Certificate Account as of the Closing Date and
of the new location of the Certificate Account prior to any change thereof.
(b) The Trustee shall establish and maintain the Distribution Account
in trust for the benefit of the Certificateholders. The Distribution Account
shall be maintained as a segregated account, separate and apart from trust
funds for mortgage pass-through certificates of other series administered by
the Trustee and other accounts of the Trustee.
The Master Servicer shall deliver to the Trustee each month on or
before the Master Servicer Remittance Date therein, for deposit in the
Distribution Account, that portion of the Available Distribution Amount
(calculated without regard to clause (b)(iii) of the definition thereof) for
the related Distribution Date then on deposit in the Certificate Account.
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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. 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.
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 of the Closing Date
and of the new location of the Distribution Account prior to any change
thereof.
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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 the Fiscal Agent, the Trustee and itself, in that
order, as applicable, for unreimbursed Delinquency Advances made thereby, the
Master Servicer's, Trustee's or Fiscal Agent'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 the Fiscal Agent, the Trustee, itself and the Special
Servicer, in that order, as applicable, for unreimbursed Servicing Advances
made thereby, the Master Servicer's, the Special Servicer's, Trustee's or
Fiscal Agent'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 the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, as applicable, out of general collections on
the Mortgage Loans and REO Properties, for Nonrecoverable Advances made
thereby;
(vii) at or following such time as it reimburses the Fiscal Agent, the
Trustee, itself and the Special Servicer, in that order, as applicable, for any
unreimbursed Advance pursuant to clause (iv), (v) or (vi) above or Section
3.03, to pay the Fiscal Agent, the Trustee, itself or the Special Servicer, in
that order as the case may be, out of general collections on the Mortgage Loans
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and REO Properties, any related Advance Interest accrued and payable on such
Advance in accordance with Section 3.11(f) and 4.03(d);
(viii) 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 (viii) 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;
(ix) in accordance with Section 2.03(d), to reimburse the Trustee, out
of general collections on the Mortgage Loans and REO Properties for any
unreimbursed expense reasonably incurred by the Trustee in connection with the
enforcement of a Mortgage Loan Seller's obligations under Section 6(a) of the
related Mortgage Loan Purchase Agreement (or, 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 (viii)
above or otherwise;
(x) 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);
(xi) to pay itself, as additional servicing compensation in accordance
with Section 3.11(b), (A) interest and investment income earned in respect of
amounts relating to the Trust Fund held in the Certificate Account, any
Lock-box Account and Cash Collateral Account as provided in Section 3.06(b)
(but only to the extent of the Net Investment Earnings with respect to the
Certificate Account, any Lock-box Account and Cash Collateral Account for any
Collection Period), (B) Prepayment Interest Excesses and Balloon Payment
Interest Excess received on the Mortgage Loans and (C) Penalty Charges received
on Mortgage Loans that are not Specially Serviced Mortgage Loans (but only to
the extent not otherwise allocable to cover Advance Interest in respect of the
related Mortgage Loan);
(xii) 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);
(xiii) 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;
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(xiv) 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);
(xv) 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;
(xvi) to withdraw funds deposited into the Certificate Account in
error; and
(xvii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
For each Mortgage Loan, the Master Servicer shall keep and maintain
separate accounting records, on a loan-by-loan basis (and for each REO Loan, on
a property-by-property basis) when appropriate, for the purpose of justifying
any withdrawal from the Certificate Account.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the
Certificate Account amounts permitted to be paid to it (or to such third party
contractors) therefrom promptly upon receipt of a certificate of a Servicing
Officer of the Special Servicer describing the item and amount to which the
Special Servicer (or such third party contractors) is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty
to re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Property, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Certificate Account.
(b) The Trustee may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes:
(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
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respect of amounts relating to the Trust Fund held in the Distribution Account
as provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the Distribution Account for any Collection Period);
(iii) to pay itself unpaid Trustee Fees pursuant to Section 8.05(a);
(iv) to pay itself or any of its directors, officers, employees and
agents, as the case may be, any amounts payable or reimbursable to any such
Person pursuant to Section 8.05(b);
(v) to pay for (A) the cost of the Opinion of Counsel contemplated by
Section 11.01(a) or (c) in connection with any amendment to this Agreement
requested by the Trustee, which amendment is in furtherance of the rights and
interests of Certificateholders, (B) the cost of the Opinion of Counsel
contemplated by Section 11.02(a) in connection with any recordation of this
Agreement and (C) to the extent payable out of the Trust Fund, the cost of the
Opinion of Counsel contemplated by Section 10.01(f);
(vi) to (A) pay any and all federal, state and local taxes imposed on
REMIC I, REMIC II or REMIC III or on the assets or transactions of any such
REMIC, together with all incidental costs and expenses, and any and all
reasonable expenses relating to tax audits, if and to the extent that either
(1) none of the Trustee, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(g) or (2) any such Person that may be so
liable has failed to make the required payment, and (B) reimburse the Trustee
for reasonable expenses incurred by and reimbursable to it by the Trust Fund
pursuant to Section 10.01(c);
(vii) to withdraw funds deposited into the Distribution Account in
error; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
SECTION 3.06 Investment of Funds in the Certificate Account, the
Distribution Account and the REO Account.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Distribution Account, any Lock-Box
Account or any Cash Collateral Account and the Special Servicer may direct any
depository institution maintaining the REO 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
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Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such). The Master Servicer (with respect to
Permitted Investments of amounts in the Certificate Account or the Distribution
Account) and the Special Servicer (with respect to Permitted Investments of
amounts in the REO Account) on behalf of the Trustee, shall maintain continuous
possession of any Permitted Investment 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, or the Special Servicer, as applicable, 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) Whether or not the Master Servicer directs the investment of funds
in the Certificate Account, the Distribution Account, any Lock-Box Account or
any Cash Collateral Account, interest and investment income realized on funds
deposited in each such Investment Account, to the extent of the Net Investment
Earnings, if any, with respect to such account for each Collection Period,
shall be for the sole and exclusive benefit of the Master Servicer and shall be
subject to its withdrawal, or withdrawal at its direction, in accordance with
Section 3.05(a) or 3.05(b), as the case may be. Whether or not the Special
Servicer directs the investment of funds in the REO Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of the Special Servicer and
shall be subject to its withdrawal in accordance with Section 3.16 (b). In the
event that any loss shall be incurred in respect of any Permitted Investment on
deposit in any of the Certificate Account, the Distribution Account, any
Lock-Box Account or any Cash Collateral Account the Master Servicer shall
deposit therein, no later than the end of the Collection Period during which
such loss was incurred, without right of reimbursement, the amount of the Net
Investment Loss, if any, with respect to such account for such Collection
Period. If any loss shall be incurred in respect of any Permitted Investment on
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deposit in the REO Account, the Special Servicer shall promptly deposit therein
from its own funds, without right of reimbursement, no later than the end of
the Collection Period during which such loss was incurred, the amount of the
Net Investment Loss, if any, for such Collection Period. Notwithstanding
anything herein to the contrary, funds on deposit in the Distribution Account
shall remain uninvested during the period commencing on the Master Servicer
Remittance Date and ending on the related Distribution Date and all interest
and any other income realized with respect to such funds for such period shall
not be deemed Net Investment Earnings.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated
to any Class shall take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of
appropriate proceedings.
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) Each of the Master Servicer (in the case of Mortgage Loans other
than Specially Serviced Mortgage Loans) and the Special Servicer (in the case
of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause
each Mortgagor to maintain in respect of the related Mortgaged Property all
insurance coverage as is required under the related Mortgage; provided that if
any Mortgage permits the holder thereof to dictate to the Mortgagor the
insurance coverage to be maintained on such Mortgaged Property, the Master
Servicer or the Special Servicer, as appropriate, shall impose such insurance
requirements as are consistent with the Servicing Standard. If a Mortgagor
fails to maintain such insurance, the Master Servicer (at the direction of the
Special Servicer in the case of a Specially Serviced Loan) shall (to the extent
available at commercially reasonable terms) obtain such insurance (which may be
through a master or single interest policy) and the cost (including any
deductible relating to such insurance) of such insurance (or in the case of a
master or single interest policy, the incremental cost (including any
deductible relating to such insurance) of such insurance relating to the
specific Mortgaged Property), shall be a Servicing Advance and shall be
recoverable by the Master Servicer pursuant to Section 3.05(a). If at any time
a Mortgaged Property is located in an area identified in the Flood Hazard
Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency
Management Agency as having special flood hazards or it becomes located in such
area by virtue of remapping conducted by such agency (and flood insurance has
been made available), the Master Servicer (or in the case of a Specially
Serviced Loan, the Special Servicer) shall, if and to the extent that the
Mortgage Loan requires the Mortgagor or permits the mortgagee to require the
Mortgagor to do so, use reasonable efforts to cause the related Mortgagor to
maintain a flood insurance policy meeting the requirements of the current
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
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otherwise specified by the related Mortgage Loan. If (i) the Mortgagor is
required by the terms of the Mortgage Loan to maintain such insurance (or
becomes obligated by virtue of the related Mortgaged Property becoming located
in such area by virtue of such remapping) or (ii) the terms of the Mortgage
Loan permit the mortgagee to require the Mortgagor to obtain such insurance,
the Master Servicer (or in the case of a Specially Serviced Loan, the Special
Servicer), shall promptly notify the Mortgagor of its obligation to obtain such
insurance. If the Mortgagor fails to obtain such flood insurance within 120
days of such notification, the Master Servicer (or in the case of a Specially
Serviced Loan, the Special Servicer) shall obtain such insurance, the cost of
which shall be a Servicing Advance and shall be recoverable by the Master
Servicer or Special Servicer pursuant to Section 3.05(a); provided that the
Master Servicer or Special Servicer shall not be required to incur any such
cost if such Advance would constitute a Nonrecoverable Servicing Advance.
Subject to Section 3.17(a), the Special Servicer shall also use reasonable
efforts to cause to be maintained for each REO Property (to the extent
available at commercially reasonable terms) no less insurance coverage than was
previously required of the Mortgagor under the related Mortgage or as is
consistent with the Servicing Standard. All such insurance policies shall
contain a "standard" mortgagee clause, with loss payable to the Master Servicer
(in the case of Mortgaged Properties) or the Special Servicer (in the case of
REO Properties) on behalf of the Trustee, and shall be issued by an insurer
authorized under applicable law to issue such insurance. Any amounts collected
by the Master Servicer or the Special Servicer under any such policies (other
than amounts to be applied to the restoration or repair of the related
Mortgaged Property or REO Property or amounts to be re leased to the related
Mortgagor, in each case in accordance with applicable law, the terms of the
related Mortgage Loan documents and the Servicing Standard, shall be deposited
in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a),
in the case of amounts received in respect of a Mortgage Loan, or in the REO
Account, subject to withdrawal pursuant to Section 3.16(c), in the case of
amounts received in respect of an REO Property. Any cost incurred by the Master
Servicer or the Special Servicer in maintaining any such insurance shall not,
for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the outstanding principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit, but shall be recoverable by the Master Servicer as a
Servicing Advance pursuant to Section 3.05(a).
(b)(I) If the Master Servicer or the Special Servicer obtains and
maintains a blanket policy insuring against hazard losses on all of the
Mortgaged Properties and/or REO Properties for which it is responsible to cause
the maintenance of insurance hereunder, then, to the extent such policy
provides protection equivalent to the individual policies otherwise required,
the Master Servicer or the Special Servicer, as the case may be, shall
conclusively be deemed to have satisfied its obligation to cause hazard
insurance to be maintained on such Mortgaged Properties and/or REO Properties.
Such policy may contain a deductible clause (not in excess of a customary
amount), in which case the Master Servicer or the Special Servicer, as
appropriate, shall, if there shall not have been maintained on a Mortgaged
Property or an REO Property a hazard insurance policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
which would have been covered by such policy, promptly deposit into the
Certificate Account (or into the Servicing Account if insurance proceeds are to
be applied to the repair or restoration of the
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applicable Mortgaged Property or disbursed to the related Mortgagor) from its
own funds the amount not otherwise payable under the blanket policy because of
such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan, or, in the
absence of any such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard. The Master Servicer and the Special
Servicer each agrees to prepare and present, on behalf of itself, the Trustee
and Certificateholders, claims under any such blanket policy maintained by it
in a timely fashion in accordance with the terms of such policy.
(II) If the Master Servicer or the Special Servicer, as applicable,
causes any Mortgaged Property or REO Property to be covered by a master force
placed insurance policy, which provides protection equivalent to the individual
policies otherwise required, the Master Servicer or Special Servicer shall
conclusively be deemed to have satisfied its respective obligations to cause
hazard insurance to be maintained on such Mortgaged Properties and/or REO
Properties. Such policy may contain a deductible clause, in which case the
Master Servicer or the Special Servicer, as applicable, shall in the event that
(i) there shall not have been maintained on the related Mortgaged Property or
REO Property a policy otherwise complying with the provisions of Section
3.07(a), and (ii) there shall have been one or more losses which would have
been covered by such a policy had it been maintained, immediately deposit into
the Certificate Account (or into the Servicing Account if insurance proceeds
are to be applied to the repair or restoration of the applicable Mortgaged
Property or disbursed to the related Mortgagor) from its own funds the amount
not otherwise payable under such policy because of such deductible to the
extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan, or, in the absence of any such
deductible limitation, the deductible limitation which is consistent with the
Servicing Standard. The Master Servicer and the Special Servicer each agrees to
prepare and present, on behalf of itself, the Trustee and Certificateholders,
claims under any such master force placed insurance policy maintained by it in
a timely fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall obtain
and maintain at its own expense and keep in full force and effect throughout
the term of this Agreement a blanket fidelity bond and an errors and omissions
insurance policy covering its officers and employees and other persons acting
on behalf of it in connection with its activities under this Agreement. The
amount of coverage shall be at least equal to the coverage that would be
required by FNMA or FHLMC, whichever is greater, with respect to the Master
Servicer or Special Servicer, as the case may be, if the Master Servicer or
Special Servicer, as the case may be, were servicing and administering the
Mortgage Loans and/or REO Properties for which it is responsible hereunder for
FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under a
policy or bond obtained by an Affiliate of such Person and providing the
coverage required by this Section 3.07(c) shall satisfy the requirements of
this Section 3.07(c).
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(d) All insurance coverage required to be maintained by the Master
Servicer or Special Servicer, as applicable, under this Section 3.07 shall be
obtained from Qualified Insurers having a claims paying ability rating not less
than (w) BBB from Standard & Poor's (x) investment grade by Moody's and (y)
investment grade by Fitch, or if such insurer is not rated by Fitch, at least
investment grade by at least one other Rating Agency, unless in any such case
any Rating Agency has confirmed in writing that an insurance company with a
lower claims paying ability rating shall not result, in and of itself, in a
downgrade, qualification on withdrawal of the then current ratings by such
Rating Agency of any class of Certificates.
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing; Defeasance.
(a) As to each Mortgage Loan which contains a provision in the nature
of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an interest
in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
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 Servicing Standard. 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 Servicing
Standard, may enter into an assumption and modification agreement with the
Person to whom the related Mortgaged Property has been or is intended to be
conveyed or may enter into 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), waive its right to exercise) any right it
may have with respect to such Mortgage Loan (x) to accelerate the payments
thereon, or (y) to withhold its consent to the creation of any such additional
lien or other encumbrance, in a manner consistent with the Servicing Standard;
provided, however that the Master Servicer or, in the case of a Specially
Serviced Mortgage Loan, the Special Servicer, shall not waive its right to
exercise any such right when such right arises as a result of the imposition of
a lien against a Mortgaged Property which lien secures additional indebtedness
or a mechanic's or similar lien, not permitted under the related Mortgage Loan
documents unless the Master Servicer or Special Servicer (as applicable) with
respect to any Mortgage Loan or Specially Serviced Mortgage Loan which has an
unpaid principal balance at such time equal to at least 5% of the then
outstanding balance of the Mortgage Pool, has received written confirmation
from each Rating Agency that such waiver, in and of itself, would not result in
a downgrade, qualification or withdrawal of the then current ratings assigned
to any class of Certificates.
(c) With respect to any Mortgage Loan which permits release of
Mortgaged Properties through a Defeasance Option, the Master Servicer shall, to
the extent consistent with and permitted by the applicable Mortgage Loan
documents, permit the exercise of such Defeasance Option on any Due Date
occurring more than two years after the Startup Day (the "Release Date") upon
the satisfaction of the following conditions:
(i) No event of default exists under the related Mortgage Note;
(ii) The Mortgagor pays on such Release Date (A) all interest accrued
and unpaid on the Principal Balance of the Mortgage Note to and including the
Release Date; (B) all other sums, excluding scheduled interest or principal
payments due under the Mortgage Note and (C) any costs and expenses incurred in
connection with such release;
(iii) The Mortgagor has delivered Defeasance Collateral providing
payments on or prior to all successive scheduled payment dates from the Release
Date to the related Maturity Date, and in an amount equal to or greater than
the scheduled payments due on such dates under the Mortgage Loan;
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(iv) The Mortgagor shall have delivered a security agreement granting
the Trust Fund a first priority security interest in the Defeasance Collateral;
(v) The Master Servicer shall have received an Opinion of Counsel from
the related Mortgagor (which shall be an expense of the related Mortgagor) to
the effect that the Trust Fund has a first priority security interest in the
Defeasance Collateral and that the assignment thereof is valid and enforceable;
(vi) The Master Servicer shall have obtained at the related
Mortgagor's expense a certificate from an Independent certified public
accountant certifying that the Defeasance Collateral complies with the
requirements of the related Mortgage Note;
(vii) If the related Mortgage Loan so requires and provides for the
related Mortgagor to pay the cost thereof, the Master Servicer shall have
obtained an Opinion of Counsel of the related Mortgagor to the effect that such
release will not cause any of REMIC I, REMIC II or REMIC III to fail to qualify
as a REMIC at any time that any Certificates are outstanding or cause a tax to
be imposed on the Trust Fund under the REMIC Provisions; and
(viii) The Borrower shall have provided evidence to the Master
Servicer demonstrating that the lien of the related Mortgage is being released
to facilitate the disposition of the Mortgaged Property or another customary
commercial transaction, and not as part of an arrangement to collateralize the
Certificates issued by the related REMIC with obligations that are not real
estate mortgages.
(d) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Mortgage Loan, any sale or other transfer of the related
Mortgaged Property or the creation of any additional lien or other encumbrance
with respect to such Mortgaged Property.
(e) Except as otherwise permitted by Section 3.20, neither the Master
Servicer nor the Special Servicer shall agree to modify, waive or amend any
term of any Mortgage Loan in connection with the taking of, or the failure to
take, any action pursuant to this Section 3.08.
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SECTION 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall notify the Special Servicer of the
occurrence of a Servicing Transfer Event in respect of any Mortgage Loan. The
Special Servicer shall monitor such Specially Serviced Mortgage Loan, evaluate
whether the causes of the default can be corrected over a reasonable period
without significant impairment of the value of the related Mortgaged Property,
initiate corrective action in cooperation with the Mortgagor if, in the Special
Servicer's judgment, cure is likely, and take such other actions (including
without limitation, negotiating and accepting a discounted payoff of a Mortgage
Loan) as are consistent with the Servicing Standard. If, in the Special
Servicer's judgment, such corrective action has been unsuccessful, no
satisfactory arrangement can be made for collection of delinquent payments, and
the Defaulted Mortgage Loan has not been released from the Trust Fund pursuant
to any provision hereof, then the Special Servicer shall, subject to
subsections (b) through (d) of this Section 3.09, exercise reasonable efforts,
consistent with the Servicing Standard, to foreclose upon or otherwise
comparably convert (which may include an REO Acquisition) the ownership of
property securing such Mortgage Loan. The foregoing is subject to the provision
that, in any case in which a Mortgaged Property shall have suffered damage from
an Uninsured Cause, the Master Servicer and the Special Servicer shall have the
right but not the obligation to expend its own funds toward the restoration of
such property if it shall determine in its reasonable discretion (i) that such
restoration will increase the net proceeds of liquidation of such Mortgaged
Property to Certificateholders after reimbursement to itself for such expenses,
and (ii) that such expenses will be recoverable by the Master Servicer or
Special Servicer, as the case may be, out of the proceeds of liquidation of
such Mortgaged Property, as contemplated in Section 3.05(a). The Special
Servicer (or, subject to Section 3.19(c), the Master Servicer) shall advance
all other costs and expenses incurred by it in any such proceedings, subject to
its being entitled to reimbursement therefor as a Servicing Advance as provided
in Section 3.05(a) and further subject to its being entitled to pay out of the
related Liquidation Proceeds any Liquidation Expenses incurred in respect of
any Mortgage Loan, which Liquidation Expenses were outstanding at the time such
proceeds are received. When applicable state law permits the Special Servicer
to select between judicial and non-judicial foreclosure in respect of any
Mortgaged Property, the Special Servicer shall make such selection in a manner
consistent with the Servicing Standard. Nothing contained in this Section 3.09
shall be construed so as to require the Special Servicer, on behalf of the
Trust Fund, to make a bid on any Mortgaged Property at a foreclosure sale or
similar proceeding that is in excess of the fair market value of such property,
as determined by the Special Servicer in its sole judgment taking into account
the factors described in Section 3.18(e) and the results of any Appraisal
obtained pursuant to this Agreement, all such bids to be made in a manner
consistent with the Servicing Standard. If and when the Master Servicer or the
Special Servicer deems it necessary and prudent for purposes of establishing
the fair market value of any Mortgaged Property securing a Defaulted Mortgage
Loan, whether for purposes of bidding at foreclosure or otherwise, the Master
Servicer or the Special Servicer, as the case may be, is authorized to have an
Appraisal performed with respect to such property (the cost of which Appraisal
shall be covered by, and reimbursable as, an Additional Trust Fund Expense).
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(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, the
Special Servicer shall not, on behalf of the Trustee, initiate foreclosure
proceedings, obtain title to a Mortgaged Property in lieu of foreclosure or
otherwise, have a receiver of rents appointed with respect to any Mortgaged
Property, or take any other action with respect to any Mortgaged Property, if,
as a result of any such action, the Trustee, on behalf of the
Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously received an Environmental
Assessment in respect of such Mortgaged Property prepared 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
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withdrawn from the Certificate Account by the Master Servicer at the direction
of the Special Servicer as an expense of the Trust Fund pursuant to Section
3.05(a); and if any such Environmental Assessment so warrants, the Special
Servicer shall, at the expense of the Trust Fund, perform such additional
environmental testing as are consistent with the Servicing Standard to
determine whether the conditions described in clauses (i) and (ii) of the
preceding sentence have been satisfied.
(d) If the environmental testing contemplated by subsection (c) above
establishes that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a Defaulted Mortgage Loan, then the Special Servicer shall
take such action as it deems to be in the best economic interest of the Trust
Fund (other than proceeding to acquire title to the Mortgaged Property) and is
hereby authorized at such time as it deems appropriate to release all or a
portion of such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall provide written reports monthly to the
Master Servicer, (who shall forward such reports to the Trustee, who shall
forward such reports to the Certificateholders) regarding any actions taken by
the Special Servicer with respect to any Mortgaged Property securing a
Defaulted Mortgage Loan as to which the environmental testing contemplated in
subsection (c) above has revealed that either of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied, in
each case until the earliest to occur of satisfaction of both such conditions,
removal of the related Mortgage Loan from the Trust Fund and release of the
lien of the related Mortgage on such Mortgaged Property.
(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 Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action.
(h) The Special Servicer shall maintain accurate records of each Final
Recovery Determination in respect of a Defaulted Mortgage Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate delivered to the Trustee no later than the 10th
Business Day following such Final Recovery Determination.
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SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer or the Special Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, the Master
Servicer or the Special Servicer, as the case may be, will immediately notify
the Trustee and request delivery of the related Mortgage File. Any such notice
and request shall be in the form of a Request for Release signed by a Servicing
Officer and shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the Certificate Account pursuant to Section 3.04(a) have been or
will be so deposited. Within seven Business Days (or within such shorter period
as release can reasonably be accomplished if the Master Servicer or the Special
Servicer notifies the Trustee of an exigency) of receipt of such notice and
request, the Trustee shall release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer or the Special Servicer,
whichever requested it. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan, the Master Servicer or the Special Servicer may deliver
to the Trustee a Request for Release signed by a Servicing Officer thereof.
Upon receipt of the foregoing, the Trustee shall deliver or cause the related
Custodian to deliver, the Mortgage File or any document therein to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File or such document to the Trustee or the related Custodian, or the
delivery to the Trustee of a certificate of a Servicing Officer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation which are required to be deposited
into the Certificate Account pursuant to Section 3.04(a) have been or will be
so deposited, or that such Mortgage Loan has become an REO Property, the
Request for Release shall be released by the Trustee to the Master Servicer or
the Special Servicer, as applicable.
(c) Within three Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's
sale or other documents necessary to the foreclosure or trustee's sale in
respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce 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.
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SECTION 3.11 Servicing Compensation; Nonrecoverable Servicing
Advances.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to receive the 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 loan-by-loan basis, from payments of interest on each
Mortgage Loan, REO Revenues allocable as interest on each REO Loan and the
interest portion of Delinquency Advances on each Mortgage Loan and REO Loan.
The Master Servicer shall be entitled to recover unpaid 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.
(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 or
ancillary fees (excluding any other amounts relating to Prepayment Premiums),
in each case to the extent actually paid by a Mortgagor with respect to a
Mortgage Loan that is not a Specially Serviced Mortgage Loan, 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 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 and Reserve Accounts maintained thereby. The Master
Servicer shall be required to pay out of its own funds all overhead and general
and administrative expenses incurred by it in connection with its servicing
activities hereunder (including, without limitation, payment of any amounts due
and owing to any of Sub-Servicers retained by it and the premiums for any
blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Certificate
Account, and the Master Servicer shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement. The Master Servicer
shall pay all surveillance fees payable to the Rating Agencies and the Trustee
Fee out of the Servicing Fee without right of reimbursement.
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(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 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. No Liquidation
Fee will be payable with respect to any Specially Serviced Mortgage Loan solely
by virtue of such Mortgage Loan becoming a Corrected Mortgage Loan.
Notwithstanding anything herein to the contrary, no Liquidation Fee will be
payable from, or based upon the receipt of, Liquidation Proceeds collected as a
result of any purchase of a Specially Serviced Mortgage Loan or REO Property
described in the parenthetical to the first sentence of this paragraph;
provided, however, that if any such Liquidation Proceeds are
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received with respect to any Corrected Mortgaged Loan, and the Special Servicer
is properly entitled to a Workout Fee therefrom, such Workout Fee will be
payable based on and from the portion of such Liquidation Proceeds that
constitute principal and/or interest.
Notwithstanding anything to the contrary herein, a Liquidation Fee and
a Workout Fee relating to the same Mortgage Loan shall not be paid from the
same proceeds on or with respect to such Mortgage Loan.
Subject to the Special Servicer's right to employ Sub-Servicers, the
Special Servicer's right to receive the Special Servicing Fee, the Workout Fee
and/or the Liquidation Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Special Servicer's responsibilities
and obligations under this Agreement.
(d) Additional servicing compensation in the form of 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 REO Account, any Servicing Accounts and
any Reserve Accounts maintained thereby; and (ii) to the extent not required to
be paid to the Master Servicer as additional servicing compensation pursuant to
Section 3.11(b), any Penalty Charges collected on the Specially Serviced
Mortgage Loans and REO Loans. The Special Servicer shall be required to pay out
of its own funds all overhead and general and administrative expenses incurred
by it in connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any Sub-Servicers retained
by it and the premiums for any blanket policy obtained by it insuring against
hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses
are not payable directly out of the Certificate Account or the REO Account, and
the Special Servicer shall not be entitled to reimbursement except as expressly
provided in this Agreement.
(e) If the Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so within 15 days after
such Advance is required to be made, the Trustee shall (subject to Section
3.11(g) below), make such Advance.
If the Trustee fails to make a Servicing Advance required to be made
by it, the Fiscal Agent shall make such advance (subject to Section 3.11(g)
below) within 1 (one) Business Day of such failure by the Trustee. The making
of such advance by the Fiscal Agent shall cure the failure by the Trustee to
make such advance.
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(f) The Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each Servicing
Advance made thereby for so long as such Servicing Advance is outstanding,
payable, first, out of collections received on the Mortgage Loan or REO Loan as
to which such Servicing Advance was made and, then, once such Servicing Advance
has been deemed nonrecoverable, 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, the Trustee or the Fiscal Agent
shall be required to make any Servicing Advance that it determines in its
reasonable, good faith judgment would constitute a Nonrecoverable Servicing
Advance; provided, however, that the Special Servicer may make an Emergency
Advance notwithstanding that, at the time such advance is made, the Special
Servicer may not have adequate information available in order to make a
determination whether or not such advance would, if made, be a Nonrecoverable
Servicing Advance. In addition, Nonrecoverable Servicing Advances (including
any Emergency Advances made pursuant to the proviso of the preceding sentence
which are ultimately determined to be Nonrecoverable Servicing Advances) shall
be reimbursable pursuant to Section 3.05 out of general collections on the
Mortgage Loans and REO Properties on deposit in the Certificate Account. The
determination by the Master Servicer, the Special Servicer or, if applicable,
the Trustee or the Fiscal Agent, that it has made a Nonrecoverable Servicing
Advance or that any proposed Servicing Advance, if made, would constitute a
Nonrecoverable Servicing Advance, shall be evidenced by an Officer's
Certificate delivered promptly to the Trustee (or, if applicable, retained
thereby) and the Depositor, setting forth the basis for such determination,
together with (if such determination is prior to the liquidation of the related
Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged
Property or REO Property, as the case may be, 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, the Special Servicer, the Trustee, or the
Fiscal Agent, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust Fund. The Trustee and the Fiscal Agent shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Master
Servicer or the Special Servicer with respect to a particular Servicing
Advance, and the Master Servicer shall be entitled to rely on any determination
of nonrecoverability that may have been made by the Special Servicer with
respect to a particular Servicing Advance.
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SECTION 3.12 Inspections; Collection of Financial Statements.
(a) The Master Servicer shall perform (or cause to be performed) a
physical inspection of each Mortgaged Property (other than Mortgaged Properties
constituting collateral for Specially Serviced Mortgaged Loans) at such times
and in such manner as are consistent with the Servicing Standard, but in any
event at least once every two years (or, if the related Mortgage Loan has a
current balance of greater than $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, upon request, 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 Servicing Standard. If any Mortgage Loan becomes a
Specially Serviced Mortgage Loan, then as soon as practicable (and in any event
within 90 days thereafter) the Special Servicer shall perform (or cause to be
performed) a physical inspection of each Mortgaged Property constituting
collateral for such Mortgage Loan. The Special Servicer shall prepare (or cause
to be prepared) a written report of each such inspection detailing the
condition of the Mortgaged Property and specifying the existence of (i) any
vacancy in the Mortgaged Property evident from such inspection that the Special
Servicer deems material, (ii) any sale, transfer or abandonment of the
Mortgaged Property evident from such inspection, (iii) any adverse change in
the condition or value of the Mortgaged Property evident from such inspection
that the Special Servicer deems material, or (iv) any waste committed on the
Mortgaged Property evident from such inspection. The Special Servicer, upon
request, shall deliver to the Trustee and the Master Servicer a copy of each
such written report 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 make reasonable
efforts to obtain quarterly and annual operating statements and rent rolls with
respect to each REO Property. The Master Servicer and Special Servicer, upon
request, shall each deliver copies of the collected items to the other such
party and the Trustee in each case within 10 days of its receipt of such
request.
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SECTION 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to
the Trustee, with a copy to the Depositor, on or before April 30th of each
year, beginning in 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 30th of each year, beginning in 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 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.
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The Master Servicer and the Special Servicer, to the extent
applicable, will use reasonable efforts to cause the accountants referred to
above to cooperate with the Depositor in conforming any reports delivered
pursuant to this Section 3.14 to requirements imposed by the Commission on the
Depositor in connection with the Commission's issuance of a no-action letter
relating to the Depositor's reporting requirements in respect of the Trust Fund
pursuant to the Exchange Act.
SECTION 3.15 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall provide or
cause to be provided to the Trustee, and to the OTS, the FDIC, and any other
federal or state banking or insurance regulatory authority that may exercise
authority over any Certificateholder, access to any documentation regarding the
Mortgage Loans and the Trust Fund within its control which may be required by
this Agreement or by applicable law. Such access shall be afforded without
charge but only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer,
as the case may be, designated by it.
SECTION 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate
of sale shall be issued to the Trustee on behalf of the Certificateholders. The
Special Servicer, on behalf of the Trust Fund, shall attempt to sell any REO
Property prior to the close of the third taxable year of the Trust Fund
following the taxable year in which the Trust Fund acquires ownership of such
REO Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) is granted an extension of time (an "REO Extension") by the
Internal Revenue Service to sell such REO Property or (ii) obtains for the
Trustee an Opinion of Counsel, addressed to the Trustee and the Special
Servicer, to the effect that the holding by the Trust Fund of such REO Property
subsequent to the close of such third taxable year 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 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
three 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 cause all funds collected and received
in connection with any REO Property to be held separate and apart from its own
funds and general assets. If any REO Acquisition shall occur, the Special
Servicer shall establish and maintain (or
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cause to be established and maintained) one or more accounts (collectively, the
"REO Account"), to be held on behalf of the Trustee in trust for the benefit of
the Certificateholders, for the retention of revenues and other proceeds
derived from each REO Property. The REO Account shall be an Eligible Account
and may consist of one account for some or all the REO Properties. The Special
Servicer shall deposit, or cause to be deposited, in the REO Account, within
two Business Days of receipt, all REO Revenues, Liquidation Proceeds (net of
all Liquidation Expenses paid therefrom) and Insurance Proceeds received in
respect of an REO Property. The Special Servicer is authorized to pay out of
related Liquidation Proceeds any Liquidation Expenses incurred in respect of an
REO Property and outstanding at the time such proceeds are received. Funds in
the REO Account may be invested in Permitted Investments in accordance with
Section 3.06. The Special Servicer shall be entitled to make withdrawals from
the REO Account to pay itself, as additional servicing compensation in
accordance with Section 3.11 (d), interest and investment income earned in
respect of amounts held in the REO Account as provided in Section 3.06 (b) (but
only to the extent of the Net Investment Earnings with respect to the REO
Account for any Collection Period). The Special Servicer shall give notice to
the Trustee and the Master Servicer of the location of any REO Account when
first established and of the new location of such REO Account prior to any
change thereof.
(c) The Special Servicer shall cause all funds necessary for the
proper operation, management, maintenance, disposition and liquidation of any
REO Property to be withdrawn from the REO Account, but only to the extent of
amounts on deposit in the REO Account relating to such REO Property. Within one
Business Day following the end of each Collection Period, the Special Servicer
shall withdraw from the REO Account and deposit into the Certificate Account or
deliver to the Master Servicer (which shall deposit such amounts into the
Certificate Account) the aggregate of all amounts received in respect of each
REO Property during such Collection Period, net of any withdrawals made out of
such amounts pursuant to Section 3.16 (b) or this Section 3.16(c); provided
that the Special Servicer may retain in the REO Account such portion of
proceeds and collections as may be necessary to maintain a reserve of
sufficient funds for the proper operation, management, maintenance and
disposition of the related REO Property (including without limitation the
creation of a reasonable reserve for repairs, replacements and necessary
capital improvements and other related expenses), such reserve not to exceed an
amount sufficient to cover such items to be incurred during the following
twelve-month period.
(d) The Special Servicer shall keep and maintain separate records, on
a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16 (b) or (c).
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SECTION 3.17 Management of REO Property; Independent Contractors.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a Defaulted Mortgage Loan, the Special Servicer shall review the
operation of such Mortgaged Property and determine the nature of the income
that would be derived from such property if it were acquired by the Trust Fund.
If the Special Servicer determines from such review, in its good faith and
reasonable judgment, that:
(i) None of the income from Directly Operating such Mortgaged Property
would be subject to tax as "net income from foreclosure property" within the
meaning of the REMIC Provisions or would be subject to the tax imposed on
"prohibited transactions" under Section 860F of the Code (either such tax
referred to herein as an "REO Tax"), such Mortgaged Property may be Directly
Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO Tax,
but that a lease of such property to another party to operate such property, or
the performance of some services by an Independent Contractor with respect to
such property, or another method of operating such property would not result in
income subject to an REO Tax, then the Special Servicer may (provided, that in
the good faith and reasonable judgment of the Special Servicer, it is
commercially feasible) acquire such Mortgaged Property as REO Property and so
lease or operate such REO Property; or
(iii) Directly Operating such property as REO Property could result in
income subject to an REO Tax and, in the good faith and reasonable judgment of
the Special Servicer, that no commercially feasible means exists to operate
such property as REO Property without the Trust Fund incurring or possibly
incurring an REO Tax on income from such property, the Special Servicer shall
deliver to the Trustee, in writing, a proposed plan (the "Proposed Plan") to
manage such property as REO Property. Such plan 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
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Servicer as to which means would (to the extent commercially feasible) maximize
the net after-tax REO Revenues received by the Trust Fund with respect to such
property without materially and adversely affecting the Special Servicer's
ability to sell such REO Property in accordance with this Agreement and, to the
extent consistent with the foregoing, in accordance with the Servicing
Standard. Both the Special Servicer and the Trustee may consult with counsel
knowledgeable in such matters at the expense of the Trust Fund in connection
with determinations required under this Section 3.17(a). Neither the Special
Servicer nor the Trustee shall be liable to the Certificateholders, the Trust
Fund, the other parties hereto or each other for errors in judgment made in
good faith in the reasonable exercise of their discretion while performing
their respective responsibilities under this Section 3.17(a) or, to the extent
it relates to federal income tax consequences for the Trust Fund, Section
3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale
of a Defaulted Mortgage Loan or REO Property pursuant to the terms and subject
to the conditions of Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit
of the Certificateholders solely for the purpose of its prompt disposition and
sale in a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as permitted by Section 3.17(a), result in the receipt by the Trust Fund
of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or any "net income from foreclosure property" which
is subject to taxation under the REMIC Provisions. Subject to the foregoing,
however, the Special Servicer shall have full power and authority to do any and
all things in connection therewith as are in the best interests of and for the
benefit of the Certificateholders (as determined by the Special Servicer in its
good faith and reasonable judgment) and, consistent therewith, shall withdraw
from the REO Account, to the extent of amounts on deposit therein with respect
to each REO Property, funds necessary for the proper operation, management 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 REO 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
such amount as is necessary for such purposes (which advances shall be
Servicing Advances) unless (as evidenced by an Officer's Certificate delivered
to the Trustee) such advances would, if made, constitute Nonrecoverable
Servicing Advances; provided, however, that the Special Servicer shall make any
such Servicing Advance if it is a necessary fee
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or expense incurred in connection with the defense or prosecution of legal
proceedings and such advance will be deemed to constitute a recoverable
Servicing Advance.
(c) The Special Servicer may contract with any Independent Contractor
for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of the
nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay, out of related REO Revenues,
all costs and expenses incurred in connection with the operation and management
of such REO Property, including, without limitation, those listed in subsection
(b) hereof, and (B) remit all related REO Revenues (net of its fees and such
costs and expenses) to the Special Servicer;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor shall
be deemed to relieve the Special Servicer of any of its duties and obligations
hereunder with respect to the operation and management of any such REO
Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into 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
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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, within 15 days after
receipt of such notice, purchase such Defaulted Mortgage Loan from the Trust
Fund, at a price equal to the Purchase Price. The Purchase Price for any
Defaulted Mortgage Loan purchased hereunder shall be deposited into the
Certificate Account, and the Trustee, upon receipt of an Officer's Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Master Servicer or the Special Servicer,
as applicable, the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be necessary to vest in the Master
Servicer or the Special Servicer, as applicable, such Defaulted Mortgage Loan.
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 the
Servicing Standard, that such a sale would produce a greater recovery to
Certificateholders on a present value basis than would liquidation of the
related Mortgaged Property. Such offering shall be made in a commercially
reasonable manner (which, for purposes hereof, includes an offer to sell
without representation or warranty other than customary warranties of title,
loan status, condition and similar customary matters, if liability for breach
thereof is limited to recourse against the Trust Fund) for a period of not less
than 10 days or more than 90 days. Unless the Special Servicer determines that
acceptance of any offer would not be in the best economic interests of the
Trust Fund, the Special Servicer shall accept the highest cash offer received
from any Person that constitutes a fair price for such Mortgage Loan. In the
absence of any offer determined as provided below to be fair, the Special
Servicer shall proceed with respect to such Defaulted Mortgage Loan in
accordance with Section 3.09 and, otherwise, in accordance with the Servicing
Standard.
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The Special Servicer shall use reasonable efforts to solicit offers
for each REO Property in such manner as will be reasonably likely to realize a
fair price within the time period provided for by Section 3.16(a). The Special
Servicer shall accept the first (and, if multiple bids are contemporaneously
received, highest) cash bid received from any Person that constitutes a fair
price for such REO Property. If the Special Servicer determines, in its good
faith and reasonable judgment, that it will be unable to realize a fair price
for any REO Property within the time constraints imposed by Section 3.16(a),
then the Special Servicer shall dispose of such REO Property upon such terms
and conditions as the Special Servicer shall deem necessary and desirable to
maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received.
The Special Servicer shall give the Trustee and the Master Servicer
not less than three Business Days' prior written notice of its intention to
sell any Defaulted Mortgage Loan or REO Property. No Interested Person shall be
obligated to submit a bid to purchase any Defaulted Mortgage Loan or REO
Property, and notwithstanding anything to the contrary herein, neither the
Trustee, in its individual capacity, nor any of its Affiliates may bid for or
purchase any Defaulted Mortgage Loan or any REO Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer, if the highest bidder is
a Person other than an Interested Person, and by the Trustee, if the highest
bidder is an Interested Person; provided, however, that no bid from an
Interested Person shall constitute a fair price unless (i) it is the highest
bid received and (ii) at least two other bids are received from independent
third parties. In determining whether any offer received from an Interested
Person represents a fair price for any such Mortgage Loan or REO Property, the
Trustee shall be supplied with and shall rely on the most recent Appraisal or
updated Appraisal conducted in accordance with this Agreement within the
preceding 12-month period or, in the absence of any such Appraisal, on a
narrative appraisal prepared by a Qualified Appraiser, retained by the Special
Servicer. Such appraiser shall be selected by the Special Servicer if the
Special Servicer is not making an offer with respect to a Defaulted Mortgage
Loan or REO Property and shall be selected by the Master Servicer if the
Special Servicer is making such an offer. The cost of any such narrative
appraisal shall be covered by, and shall be reimbursable as, a Servicing
Advance. In determining whether any offer from a Person other than an
Interested Person constitutes a fair price for any such Mortgage Loan or REO
Property, the Special Servicer shall take into account (in addition to the
results of any Appraisal, updated Appraisal or narrative Appraisal that it may
have obtained pursuant to this Agreement within the prior 12 months), and in
determining whether any offer from an Interested Person constitutes a fair
price for any such Mortgage Loan or REO Property, any appraiser shall be
instructed to take into account, as applicable, among other factors, the period
and amount of any delinquency on the affected Defaulted Mortgage Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a). The Purchase
Price for any Defaulted Mortgage Loan or REO Property shall in all cases be
deemed a fair price.
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(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 to the Trust Fund imposed by those representations and warranties
typically given in such transactions, any prorations applied thereto and any
customary closing matters), and if such sale is consummated in accordance with
the terms of this Agreement, none of the Special Servicer, the Master Servicer,
the Depositor, the Fiscal Agent or the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be
for cash only (unless, as evidenced by an Opinion of Counsel, 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 and the
Special Servicer.
(a) In connection with each Adjustable Rate Mortgage Loan (and, if and
to the extent applicable, any successor REO Loan), the Master Servicer shall
calculate adjustments in the Mortgage Rate and the Monthly Payment and shall
notify the Mortgagor of such adjustments, all in accordance with the Mortgage
Note and applicable law. In the event the Index for any Adjustable Rate
Mortgage Loan (or successor REO Loan) is not published or is otherwise
unavailable, the Master Servicer shall select a comparable alternative index
with respect to such Mortgage Loan (or successor REO Loan) over which it has no
direct control, which is readily verifiable and which is acceptable under the
terms of the related Mortgage Note.
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(b) The Master Servicer and the Special Servicer, as applicable, shall
each deliver to the other and to the Trustee (for inclusion in the Mortgage
File) copies of all Appraisals, environmental reports and engineering reports
(or, in each case, updates thereof) obtained with respect to any Mortgaged
Property or REO Property.
(c) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated, subject to the second following paragraph, to reimburse the Special
Servicer for any Servicing Advances made by but not previously reimbursed to
the Special Servicer, and to pay the Special Servicer interest thereon at the
Reimbursement Rate from the date made to, but not including, the date of
reimbursement. Such reimbursement and any accompanying payment of Advance
Interest shall be made within ten (10) days of the request therefor by wire
transfer of immediately available funds to an account designated by the Special
Servicer. Upon the Master Servicer's reimbursement to the Special Servicer of
any Servicing Advance and payment to the Special Servicer of interest thereon,
all in accordance with this Section 3.19(c), the Master Servicer shall 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 either (y) although
not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance, or (z)
the making of such advance was or would be in violation of the Servicing
Standard or the terms and conditions of this Agreement. The Master Servicer
shall notify the
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Special Servicer in writing of such determination. Such notice shall not
obligate the Special Servicer to make any such proposed Servicing Advance.
(d) Upon the earliest of (i) the date on which any Mortgage Loan
becomes a Modified Mortgage Loan, (ii) the 90th day following the occurrence of
any uncured delinquency in Monthly Payments with respect to any Mortgage Loan,
(iii) the date on which a receiver is appointed and continues in such capacity
in respect of the Mortgaged Property securing any Mortgage Loan and (iv) the
date on which the Mortgaged Property securing any Mortgage Loan becomes an REO
Property (each such Mortgage Loan and any related REO Loan, a "Required
Appraisal Loan"), the Special Servicer, shall request and, within 30 days of
the occurrence of such event (or such longer period as the Special Servicer is
(as certified thereby to the Trustee in writing) diligently and in good faith
proceeding to obtain such) obtain an Appraisal of the related Mortgaged
Property; unless an Appraisal thereof had previously been obtained within the
prior twelve 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 determine and report to the Trustee
the Appraisal Reduction Amount, if any, with respect to such loan. The Special
Servicer shall deliver a copy of any such Appraisal to the Master Servicer.
(e) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the aggregate of all
Balloon Payment Interest Shortfalls incurred in connection with Balloon
Payments received in respect of the Mortgage Pool during the most recently
ended Collection Period.
(f) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the 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) the aggregate Master Servicing Fees
received by the Master Servicer during such Collection Period.
(g) With respect to all ARD Loans, the Master Servicer shall apply (x)
all Monthly Payments and (y) any other sums due, in accordance with the terms
of the related ARD Loan.
(h) With respect to all ARD Loans, the Master Servicer and the Special
Servicer shall not take any enforcement action with respect to the payment of
Excess Interest or principal in
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excess of the principal component of the constant Monthly Payment, other than
request for collection, until the maturity date of the related Loan. The
foregoing shall not limit the Servicer and Special Servicer's obligation to
establish a Lock-Box Account pursuant to Section 3.28. In the event a Mortgagor
elects not to repay the principal due and outstanding on an ARD Loan on its
Anticipated Repayment Date, the Master Servicer shall notify any such Mortgagor
that the Revised Rate for such Mortgage Loan shall not exceed the related
initial Mortgage Rate plus 2.00%.
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
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. Any such action taken by the Special Servicer shall be accompanied
by an Officer's Certificate to such effect and to which is attached the present
value calculation which establishes the basis for such determination, a copy of
which shall be delivered to the Trustee for delivery to the Rating Agencies;
(ii) [Intentionally Omitted.]
(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
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"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, 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 or any other acts referenced in this Section 3.20(a) that
is required under the terms of such Mortgage Loan in effect on the Closing
Date, and (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
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Loan except pursuant to this Section 3.20(a) or as otherwise required under the
related loan documents.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust Fund, the Certificateholders or any other Person if
its analysis and determination that the modification, waiver, amendment or
other action contemplated by Section 3.20(a) is reasonably likely to produce a
greater recovery to Certificateholders on a present value basis than would
liquidation, should prove to be wrong or incorrect, so long as the analysis and
determination were made on a reasonable basis in good faith by the 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 for consent, modification, waiver or indulgence or
any other matter or thing, the granting of which is within the Master
Servicer's or the Special Servicer's discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted
by the terms of this Agreement, require that such Mortgagor pay to it, as
additional servicing compensation, a reasonable or customary fee (not to exceed
1.0% of the unpaid principal balance of the related Mortgage Loan) for the
additional services performed in connection with such request, together with
any related costs and expenses incurred by it.
(e) Except for waivers of Penalty Charges and notice periods, all
material modifications, waivers and amendments of the Mortgage Loans entered
into pursuant to this Section 3.20 shall be in writing
(f) Each of the Master Servicer and the Special Servicer shall notify
the Trustee and such other party, in writing, of any modification, waiver 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
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shall promptly give notice thereof, and deliver the related Servicing File, to
the Special Servicer and shall use reasonable efforts to provide the Special
Servicer with all information, documents (or copies thereof) and records
(including records stored electronically on computer tapes, magnetic discs and
the like) relating to the Mortgage Loan and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. The Master Servicer shall use
reasonable efforts to comply with the preceding sentence within five Business
Days of the occurrence of each related Servicing Transfer Event. The Special
Servicer may, as to any delinquent Mortgage Loan, prior to the occurrence of a
Servicing Transfer Event with respect thereto, request and obtain the foregoing
documents and information.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall promptly give notice thereof, and return
the related Servicing File, to the Master Servicer and upon giving such notice,
and returning such Servicing File, to the Master Servicer, the Special
Servicer's obligation to service such Mortgage Loan, and the Special Servicer's
right to receive the Special Servicing Fee with respect to such Mortgage Loan,
shall terminate, and the obligations of the Master Servicer to service and
administer such Mortgage Loan in accordance with this Agreement shall resume.
Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the billing and collection,
accounting, data collection, reporting and other basic Master Servicer
administrative functions with respect to Specially Serviced Mortgage Loans,
provided that the Special Servicer shall establish procedures for the Master
Servicer as to the application of receipts and tendered payments and shall have
the exclusive responsibility for and authority over all contacts with and
notices to Mortgagors and similar matters relating to each Specially Serviced
Mortgage Loan and the related Mortgaged Property.
(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.
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SECTION 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may each enter into
Sub-Servicing Agreements for the servicing and administration of all or a part
of the Mortgage Loans for which it is responsible hereunder, provided that, in
each case, the Sub-Servicing Agreement: (i) is not inconsistent with this
Agreement and shall provide that the Sub-Servicer will maintain errors and
omissions insurance and fidelity bond coverage as required of the Master
Servicer or the Special Servicer (whichever retained it) under Section 3.07
hereof; (ii) provides that if the Master Servicer or the Special Servicer, as
the case may be, shall for any reason no longer be the Master Servicer or
Special Servicer, as applicable, hereunder (including, without limitation, by
reason of an Event of Default or their termination hereunder), the Trustee, its
designee or any successor Master Servicer or Special Servicer may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or the Special Servicer, as
the case may be, under such agreement; (iii) provides that any successor Master
Servicer may terminate such agreement without cause and without payment of any
termination fee; (iv) 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 (v) 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 may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer or the Special
Servicer, as the case may be, hereunder to make Servicing Advances and
Delinquency Advances shall be deemed to have been advanced by the Master
Servicer or the Special Servicer, as the case may be, out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the
same manner and out of the same funds as if such Sub-Servicer were the Master
Servicer or the Special Servicer, as the case may be, and, for so long as they
are outstanding, such Advances shall accrue interest in accordance with Section
3.11(f) or Section 4.03(d), as applicable, such interest to be allocable
between the Master Servicer or the Special Servicer, as the case may be, and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when the Sub-Servicer receives such payment.
(b) Each Sub-Servicer shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Master Servicer
and the Special Servicer, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the
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Trustee, the Certificateholders or the Trust Fund) monitor the performance and
enforce the obligations of each Sub-Servicer retained by it under the related
Sub-Servicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Sub-Servicing Agreements in
accordance with their respective terms and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time by the Master Servicer and the Special Servicer in accordance with the
Servicing Standard. 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, its designee or any successor Master
Servicer or Special Servicer assumes the rights and obligations of the Master
Servicer or the Special Servicer under any Sub-Servicing Agreement, the Master
Servicer or the Special Servicer, as the case may be, at its expense shall,
upon request of the Trustee, deliver to the assuming party all documents and
records relating to such Sub-Servicing Agreement and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected and held on
behalf of it thereunder, and otherwise use reasonable efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreement to the assuming
party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer each shall remain obligated and liable to the Trustee
and the Certificateholders for the servicing and administration of the Mortgage
Loans in accordance with the provisions of this Agreement to the same extent
and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible.
SECTION 3.23 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.
The Certificateholders entitled to more than 50% 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
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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 REO Account or
delivered by the Special Servicer to the Master Servicer or that are thereafter
received with respect to Specially Serviced Mortgage Loans and REO Properties.
SECTION 3.24 [Intentionally Omitted.]
SECTION 3.25 [Intentionally Omitted.]
SECTION 3.26 [Intentionally Omitted.]
SECTION 3.27 [Intentionally Omitted.].
SECTION 3.28 Lock-Box Accounts and Servicing Accounts.
(a) The Master Servicer shall administer each Lock-Box Account, Cash
Collateral Account and Servicing Account in accordance with the related
Mortgage Loan, Cash Collateral Account Agreement or Lock-Box Agreement, if any.
(b) For any Mortgage Loan that provides that a Lock-Box Account will
be established upon the occurrence of certain events specified in such Mortgage
Loan, the Master Servicer (or, with respect to any Specially Serviced Loan, the
Special Servicer) shall establish or cause to be established such Lock-Box
Account upon the occurrence of such events unless the Master Servicer (or the
Special Servicer, as applicable) determines, in accordance with the Servicing
Standards, that such Lock-Box Account should not be established.
Notwithstanding the foregoing, the Master Servicer (or the Special Servicer, as
applicable) shall establish or cause to be established a Lock-Box Account for
each ARD Loan no later than its Anticipated Repayment Date.
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SECTION 3.29 Representations and Warranties of the Master Servicer and
the Special Servicer.
GMACCM, in its capacity as both Master Servicer and Special Servicer
hereunder hereby represents and warrants to the Trustee, for its own benefit
and the benefit of the Certificateholders, and to the Depositor, as of the
Closing Date, that:
(i) GMACCM is a corporation, duly organized, validly existing and in
good standing under the laws of the State of California, and GMACCM is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to perform its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by GMACCM, and the
performance and compliance with the terms of this Agreement by GMACCM, will not
violate GMACCM's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other instrument
to which it is a party or which is applicable to it or any of its assets.
(iii) GMACCM has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and binding
obligation of GMACCM, enforceable against GMACCM in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) GMACCM is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state or
local governmental or regulatory authority, which violation, in GMACCM's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of GMACCM to perform its obligations under this Agreement or
the financial condition of GMACCM.
(vi) No litigation is pending or, to the best of GMACCM's knowledge,
threatened against GMACCM the outcome of which, in GMACCM's good faith and
reasonable judgment, could reasonably be expected to prohibit GMACCM from
entering into this Agreement or materially and adversely affect the ability of
GMACCM to perform its obligations under this Agreement.
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(vii) GMACCM has errors and omissions insurance coverage which is in
full force and effect and complies with the requirements of Section 3.07
hereof.
(viii) No consent, approval, authorization or order, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by GMACCM with this Agreement, or the consummation by GMACCM of any
transaction contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings, or notices as have been
obtained or made and (2) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not have a
material adverse effect on the performance by GMACCM under this Agreement.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
AND RELATED MATTERS
SECTION 4.01 Distributions.
(a) On each Distribution Date, the Trustee shall be deemed to apply
the Available Distribution Amount for such date for the following purposes and
in the following order of priority:
(i) to pay interest to REMIC II in respect of the various REMIC I
Regular Interests, up to an amount equal to, and pro rata in accordance with,
all Uncertificated Distributable Interest for each such REMIC I Regular
Interest for such Distribution Date and, to the extent not previously deemed
paid, for all prior Distribution Dates;
(ii) to pay principal to REMIC II in respect of the various REMIC I
Regular Interests, up to an amount equal to, and pro rata in accordance with,
in the case of each such REMIC I Regular Interest for such Distribution Date,
the excess, if any, of the Uncertificated Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date, over
the Stated Principal Balance of the related Mortgage Loan, REO Loan or, if
applicable, a Replacement Mortgage 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
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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
amounts relating to each Prepayment Premium then on deposit in the Distribution
Account and received during or prior to the related Collection Period, to pay
additional interest to REMIC II in respect of the REMIC I Regular Interest that
relates to the Mortgage Loan or REO Loan, as the case may be, as to which such
Prepayment Premium was received.
All amounts (other than additional interest in the form of amounts
relating to Prepayment Premiums) deemed paid to REMIC II in respect of the
REMIC I Regular Interests pursuant to this Section 4.01(a) on any Distribution
Date is hereinafter referred to as the "REMIC II Distribution Amount" for such
date.
(b) On each Distribution Date, the Trustee shall be deemed to apply
the REMIC II Distribution Amount for such date for the following purposes and
in the following order of priority:
(i) to pay interest to REMIC III in respect of all REMIC II Regular
Interests up to an amount equal to all Uncertificated Distributable Interest in
respect of such REMIC II Regular Interests for such Distribution Date and, to
the extent not previously deemed paid, for all prior Distribution Dates with
such payments allocated among the REMIC II Regular Interests such that
remaining amounts, if any, of unpaid interest on each such REMIC II Regular
Interest will equate to the remaining unpaid accrued interest on the
corresponding Principal Balance Certificate or Class X Component outstanding
after all subsequent adjustments made on such Distribution Date under Section
4.01(c) below;
(ii) to pay principal to REMIC III in respect of all REMIC II Regular
Interests apportioned as payment of Uncertificated Principal Balance among the
classes of REMIC II Regular Interests such that the remaining Uncertificated
Principal Balance of each such class will equal the then outstanding Principal
Balance of the corresponding Principal Balance Certificate after all subsequent
adjustments made on such Distribution Date under Section 4.01(c) below (other
than payments thereunder in reimbursement of any Realized Losses and Additional
Trust Fund Expenses); and
(iii) to reimburse REMIC III for any Realized Losses and Additional
Trust Fund Expenses previously deemed allocated to REMIC II Regular Interests,
apportioned as payment of Uncertificated Principal Balance among the classes of
REMIC II Regular Interests such that the remaining Uncertificated Balance of
each such class will equal the Principal Balance of the corresponding Principal
Balance Certificate after all subsequent payments made on such Distribution
Date under Section 4.01(c) below.
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On each Distribution Date, the Trustee shall pay to the Holders of the
Class R-II Certificates, in accordance with Section 4.01(c), that portion, if
any, of the REMIC II Distribution Amount for such date that has not otherwise
been deemed paid to REMIC III in respect of the REMIC II Regular Interests
pursuant to the foregoing provisions of this Section 4.01(b) (such portion, the
"Class R-II Distribution Amount" for such Distribution Date).
On each Distribution Date, the Trustee shall be deemed to apply all
amounts relating to Prepayment Premiums then on deposit in the Distribution
Account and received during or prior to the related Collection Period, to pay
additional interest to REMIC III in respect of REMIC II Regular Interests among
the REMIC II Regular Interests in an amount with respect to each REMIC II
Regular Interest equal to the amount allocable to the corresponding Principal
Balance Certificate and Class X Component outstanding after all subsequent
adjustments made on such Distribution Date under Section 4.01(c) below.
(c) On each Distribution Date, following the deemed payments to REMIC
III in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(b), the Trustee shall withdraw from the Distribution Account the
Available Distribution Amount for such Distribution Date and shall apply such
net amount for the following purposes and in the following order of priority:
(i) to pay interest to the Holders of the respective Classes of Senior
Certificates, in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each such Class of
Certificates for such Distribution Date and, to the extent not previously paid,
for all prior Distribution Dates;
(ii) to pay principal first to the Holders of the Class A-1
Certificates, second to the Holders of the Class A-2 Certificates and
third to the Holders of the Class A-3 Certificates, in each case, up
to an amount equal to the lesser of (1) the then outstanding Class
Principal Balance of such Class of Certificates and (2) the remaining
portion, if any, of such Principal Distribution Amount;
(iii) to reimburse the Holders of the respective Classes of Class
A Certificates, up to an amount equal to and pro rata as among such
Classes in accordance with, the respective amounts of Realized Losses
and Additional Trust Fund Expenses, if any, previously deemed
allocated to such Classes of Certificates and for which no
reimbursement has previously been paid; and
(iv) to make payments on the Subordinated Certificates pursuant
to the following paragraph;
provided that, on each Distribution Date after the aggregate of the
Class Principal Balances of the Subordinated Certificates has been
reduced to zero, and in any event on the Final Distribution Date, the
payments of principal to be made pursuant to clause (ii) above, will
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be so made to the Holders of the respective Classes of Class A
Certificates, up to an amount equal to, and pro rata as among such
Classes in accordance with, the respective then outstanding Class
Principal Balances of such Classes of Certificates. References to
"remaining Principal Distribution Amount" shall be to the Principal
Distribution Amount net of any distributions of principal made in
respect thereof to the Holders of each Class of Class A Certificates
that pursuant to clause (ii) above have a prior right to payment with
respect thereto.
On each Distribution Date, following the foregoing series of payments
on the Senior Certificates, the Trustee shall apply the remaining portion, if
any, of the Available Distribution Amount for such date for the following
purposes and in the following order of priority:
(i) to pay interest to the Holders of the Class B Certificates, up to
an amount equal to all Distributable Certificate Interest in respect of such
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(ii) if the Class Principal Balances of the Class A Certificates have
been reduced to zero, to pay principal to the Holders of the Class B
Certificates, up to an amount equal to the lesser of (A) the then outstanding
Class Principal Balance of such Class of Certificates and (B) the remaining
Principal Distribution Amount for such Distribution Date;
(iii) to reimburse the Holders of the Class B Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been paid;
(iv) to pay interest to the Holders of the Class C Certificates, up to
an amount equal to all Distributable Certificate Interest in respect of such
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A and Class B
Certificates have been reduced to zero, to pay principal to the Holders of the
Class C Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class of Certificates and (B) the
remaining Principal Distribution Amount for such Distribution Date;
(vi) to reimburse the Holders of the Class C Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(vii) to pay interest to the Holders of the Class D Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of such
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
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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 Principal Distribution Amount for such Distribution Date;
(ix) to reimburse the Holders of the Class D Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(x) to pay interest to the Holders of the Class E Certificates, up to
an amount equal to all Distributable Certificate Interest in respect of such
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xi) if the Class Principal Balances of the Class A, Class B, Class C
and Class D Certificates have been reduced to zero, to pay principal to the
Holders of the Class E Certificates, up to an amount equal to the lesser of (A)
the then outstanding Class Principal Balance of such Class of Certificates and
(B) the remaining Principal Distribution Amount for such Distribution Date;
(xii) to reimburse the Holders of the Class E Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xiii) to pay interest to the Holders of the Class F Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of such
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A, Class B, Class
C, Class D and Class E Certificates have been reduced to zero, to pay principal
to the Holders of the Class F Certificates, up to an amount equal to the lesser
of (A) the then outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Principal Distribution Amount for such
Distribution Date;
(xv) to reimburse the Holders of the Class F Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xvi) to pay interest to the Holders of the Class G Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of such
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xvii) if the Class Principal Balances of the Class A, Class B, Class
C, Class D, Class E and Class F Certificates have been reduced to zero, to pay
principal to the Holders of the Class G Certificates, up to an amount equal to
the lesser of (A) the then outstanding Class Principal
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Balance of such Class of Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Date;
(xviii) to reimburse the Holders of the Class G Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xix) to pay interest to the Holders of the Class H Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of such
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xx) if the Class Principal Balances of the Class A, Class B, Class C,
Class D, Class E, Class F and Class G Certificates have been reduced to zero,
to pay principal to the Holders of the Class H Certificates, up to an amount
equal to the lesser of (A) the then outstanding Class Principal Balance of such
Class of Certificates and (B) the remaining Principal Distribution Amount for
such Distribution Date;
(xxi) to reimburse the Holders of the Class H Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxii) to pay interest to the Holders of the Class J Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of such
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A, Class B, Class
C, Class D, Class E, Class F, Class G and Class H Certificates have been
reduced to zero, to pay principal to the Holders of the Class J Certificates,
up to an amount equal to the lesser of (A) the then outstanding Class Principal
Balance of such Class of Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Date;
(xxiv) to reimburse the Holders of the Class J Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxv) to pay interest to the Holders of the Class K Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of such
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxvi) if the Class Principal Balances of the Class A, Class B, Class
C, Class D, Class E, Class F, Class G, Class H and Class J Certificates have
been reduced to zero, to pay principal to the Holders of the Class K
Certificates, up to an amount equal to the lesser of (A) the
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then outstanding Class Principal Balance of such Class of Certificates and (B)
the remaining Principal Distribution Amount for such Distribution Dates;
(xxvii) to reimburse the Holders of the Class K Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxviii) 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;
(xxix) 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
(xxx) to pay to the Holders of the Class R-III Certificates the
balance, if any, of the Available Distribution Amount for such Distribution
Date;
provided that, on the Final Distribution Date, the payments of principal to be
made pursuant to any of clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii) and (xxvi) above with respect to any Class of Principal Balance
Certificates, will be so made to the Holders thereof, up to an amount equal to
the entire then outstanding Class Principal Balance of such Class of
Certificates. References to "remaining Principal Distribution Amount" in any of
clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx) (xxiii) and (xxvi) above,
in connection with the payments of principal to be made to the Holders of any
Class of Principal Balance Certificates, shall be to the Principal Distribution
Amount for such Distribution Date, net of any payments of principal made in
respect thereof to the Holders of each Class of Principal Balance Certificates
that have a higher Payment Priority.
On each Distribution Date, the Trustee shall withdraw any amounts then
on deposit in the Distribution Account that represent Prepayment Premiums
collected during or prior to the related Collection Period and shall distribute
such amounts, in each case, subject to available funds, as additional interest,
as follows:
(i) to the Holders of the Class A, Class B, Class C, Class D,
Class E, Class F and Class G Certificates in an aggregate amount up to
the product of (a) such Prepayment Premiums, (b) the Discount Rate
Fraction and (c) the Principal Allocation Fraction of such Class; and
(ii) then, to the Holders of the Class X Certificates.
All of the foregoing distributions to be made from the Distribution
Account on any Distribution Date with respect to the REMIC III Certificates
shall be deemed made from the payments deemed made to REMIC II in respect of
the REMIC II Regular Interests on such Distribution Date pursuant to Section
4.01(b).
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(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) or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. The final distribution on each Certificate (determined
without regard to any possible future reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to such Certificate) will be
made in like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution. Any
distribution that is to be made with respect to a Certificate in reimbursement
of a Realized Loss or Additional Trust Fund Expense previously allocated
thereto, which reimbursement is to occur after the date on which such
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Certificateholder that surrendered
such Certificate as such address last appeared in the Certificate Registrar or
to any other address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of
its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer or the Special
Servicer shall have any responsibility therefor except as otherwise provided by
this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund in respect of their Certificates, and all rights
and interests of the Certificateholders in and to such distributions, shall be
as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
(determined without regard to any
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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 distri bution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute all unclaimed
funds and other assets which remain subject hereto to the holders of the Class
R-I Certificates.
(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.
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SECTION 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer.
(a) Subject to Section 8.02(v), based on information received from the
Master Servicer, on each Distribution Date, the Trustee shall 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 written reports, including reports in
substantially the form attached hereto as Exhibit G (the "Distribution Date
Statement"), setting forth, among other things, the following information:
(i) the amount of distributions, if any, made on such Distribution
Date to the holders of each Class of Principal Balance Certificates and applied
to reduce the respective Class Principal Balances thereof;
(ii) the amount of distributions, if any, made on such Distribution
Date to the Holders of each Class of REMIC III Regular Certificates allocable
to (A) Distributable Certificate Interest 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 outstanding Delinquency Advances as of
the end of the prior calendar month;
(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 the Mortgage Pool
immediately before and after such Distribution Date and the percentage of the
Cut-off Date Principal Balance of the Mortgage Pool which remains outstanding
immediately after such Distribution Date;
(vii) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
outstanding Mortgage Loans in the Mortgage Pool at the close of business on the
related Determination Date;
(viii) as of the end of the prior calendar month, the number and
aggregate unpaid principal balance of Mortgage Loans in the Mortgage Pool (A)
delinquent one month, (B) delinquent two months, (C) delinquent three or more
months, (D) that are Specially Serviced Mortgage Loans but are not delinquent
or (E) as to which foreclosure proceedings have been commenced;
(ix) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection Period,
the Stated Principal Balance
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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
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;
(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 for each Class of REMIC III Regular
Certificates for such Distribution Date and the next Distribution Date;
(xvi) the Class Principal Balance or Class Notional Amount, as the
case may be, of each Class of REMIC III Regular Certificates immediately before
and immediately after such Distribution Date, separately identifying any
reduction in the Class Principal Balance or Class Notional Amount, as the case
may be, of each such Class due to Realized Losses and Additional Trust Fund
Expenses;
(xvii) the Certificate Factor for each Class of REMIC III Regular
Certificates immediately following such Distribution Date;
(xviii) the Principal Distribution Amount for such Distribution Date;
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(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;
(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 the related Determination Date;
(xxii) the aggregate amount of any Balloon Payment Interest Excesses
and Balloon Payment Interest Shortfalls; and
(xxiii) such additional information as contemplated by Exhibit G
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. The form of any Distribution
Date Statement 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, to each Underwriter 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, information regarding the Mortgage Pool 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 G
hereto (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 tabular format
substantially similar to the formats utilized in Exhibit G hereto.
On each Distribution Date, the Trustee shall make (x) certain
information contained in the Monthly Distribution Statement available through
its ASAP System by Certificateholders requesting statement No. 284 and (y)
certain information regarding the Mortgage Loans available in electronic format
through its dial-up bulletin board service, by Certificateholders dialing
telephone number (714) 282-3990..
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)
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and (iii) of the description of Distribution Date Statements above aggregated
for such calendar year or applicable portion thereof during which such person
was a Certificateholder, together with such other information as the Trustee
determines to be necessary to enable Certificateholders to prepare their tax
returns for such calendar year. Such obligation of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time are in force.
Upon filing with the Internal Revenue Service, the Trustee shall
furnish to the Holders of the Residual Certificates the Form 1066 and shall
furnish their respective Schedules Q thereto at the times required by the Code
or the Internal Revenue Service, and shall provide from time to time such
information and computations with respect to the entries on such forms as any
Holder of the Residual Certificates may reasonably request.
The specification of information to be furnished by the Trustee to the
Certificateholders in this Section 4.02 (and any other terms of this Agreement
requiring or calling for delivery or reporting of information by the Trustee to
Certificateholders and Certificate Owners) shall not limit the Trustee in
furnishing, and the Trustee is hereby authorized to furnish, to
Certificateholders, Certificate Owners and/or to the public any other
information (such other information, collectively, "Additional Information")
with respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund
as may be provided to it by the Depositor, the Master Servicer or the Special
Servicer or gathered by it in any investigation or other manner from time to
time, provided that (A) while there exists any Event of Default, any such
Additional Information shall only be furnished with the consent or at the
request of the Depositor (except pursuant to clause (E) below), (B) the Trustee
shall be entitled to indicate the source of all information furnished by it,
and the Trustee may affix thereto any disclaimer it deems appropriate in its
sole discretion (together with any warnings as to the confidential nature
and/or the uses of such information as it may, in its sole discretion,
determine appropriate), (C) the Trustee may notify Certificateholders and
Certificate Owners of the availability of any such 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 neither have any liability
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for furnishing nor for refraining from furnishing Additional Information in any
instance. The Trustee shall be entitled (but not required) to request and
receive direction from the Depositor as to the manner of delivery of any such
Additional Information, if and to the extent the Trustee deems necessary or
advisable, and to require that any consent, direction or request given to it
pursuant to this Section be made in writing.
Upon the authorization of the Depositor, the Trustee shall make
available to Bloomberg Financial Markets, L.P. ("Bloomberg") all the reports
delivered or made available pursuant to this Section 4.02(a) to the
Certificateholders and Certificate Owners using a format and media mutually
acceptable to the Trustee and Bloomberg.
(b) 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 form
mutually acceptable to the Trustee and the Master Servicer the following
reports or information: (1) a Delinquent Loan Status Report, (2) an REO Status
Report, (3) a Historical Loan Modification Report, (4) a Historical Loss
Report, (5) the Specially Serviced Mortgage Loan Status Report and (6) a single
report (the "Collection Report") setting forth, among other things, 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, separately identifying the aggregate amount of any Principal
Prepayments included therein, and (if different) the Principal Distribution
Amount for the immediately succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account in respect of such Distribution
Date that is allocable to (A) interest on or in respect of the Mortgage Loans
and any REO Loans and (B) Prepayment Premiums;
(iii) the aggregate amount of any Delinquency Advances (specifying the
principal and interest portions thereof separately) to made pursuant to Section
4.03 of this Agreement as of the end of the prior calendar month that were
included in amounts deposited in the Distribution Account;
(iv) the information required to be included in the Distribution Date
Statement for the next succeeding Distribution Date and described in clauses
(v) - (xii) and (xvii) - (xxii) of the description of the Distribution Date
Statement in Section 4.02(a);
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(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;
(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 by the Master
Servicer Remittance Report.
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 form reasonably acceptable to the Trustee, containing the
information with respect to the Mortgage Pool necessary for the Trustee to
prepare with respect to the Mortgage Pool any additional schedules and tables
required to be made available by the Trustee pursuant to Section 4.02(a), 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.
Prior to each Distribution Date, the Master Servicer will deliver to
the Trustee (by electronic means) a "Comparative Financial Status Report"
containing substantially the content set forth in Exhibit I setting forth,
among other things, the occupancy, revenue, net operating income and debt
service coverage ratio for each Mortgage Loan or related Mortgaged Property as
of the Determination Date immediately preceding the preparation of such report
for each of the following three periods (but only to the extent the related
borrower is required by the Mortgage to deliver and does deliver, or otherwise
agrees to provide and does provide, such information): (i) the most current
available year-to-date; (ii) each of the previous two full fiscal years stated
separately (to the extent such information is in the Master Servicer's
possession; and (iii) the "base year" (representing the original analysis of
information used as of the Cut-Off Date).
In addition, the Master Servicer is also required to perform with
respect to each Mortgaged Property and REO Property:
(i) Within 30 days after receipt of a quarterly operating
statement, if any, commencing with the calendar quarter ended
September 30, 1997, an "Operating Statement Analysis" containing
revenue, expense, and net operating income information substantially
in accordance with Exhibit I presenting the computation made in
accordance with the methodology set forth in Exhibit F (but only to
the extent the related borrower is required by the Mortgage to deliver
and does deliver, or otherwise agrees to provide and does provide,
such information) for such Mortgaged Property or REO Property as of
the end of
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such calendar quarter. The Master Servicer will deliver to the
Trustee by electronic means the Operating Statement Analysis upon
request; and
(ii) Within 30 days after receipt by the Master Servicer of an
annual operating statement, an NOI adjustment analysis containing
substantially the content set forth in Exhibit I, the "NOI Adjustment
Worksheet," (but only to the extent the related borrower is required
by the Mortgage to deliver and does deliver, or otherwise agrees to
provide and does provide, such information) presenting the computation
made in accordance with the methodology described in Exhibit F to
"normalize" the full year net operating income and debt service
coverage numbers used by the Master Servicer in its reporting
obligation in (1) above. The Master Servicer will deliver to the
Trustee by electronic means the "NOI Adjustment Worksheet" upon
request.
Upon request, the Trustee shall deliver or shall cause to be delivered to each
Certificateholder, to any Underwriter, to the Rating Agencies, and to each
Certificate Owner that makes a written request therefor and certifies as to its
Ownership Interest in any Class of Book-Entry Certificates a copy of the
Operating Statement Analysis and NOI Adjustment Worksheet most recently
performed by the Master Servicer with respect to any Mortgage Loan and
delivered to the Trustee.
Not later than the first day of the calendar month following each
Master Servicer Remittance Date, the Master Servicer shall forward to the
Trustee a statement, setting forth the status of the Certificate Account as of
the close of business on such Master Servicer Remittance Date, stating that all
remittances to the Trustee required by this Agreement to be made by the Master
Servicer have been made (or, in the case of any such required remittance that
has not been made by the Master Servicer, specifying the nature and status
thereof) and showing, for the period from the preceding Master Servicer
Remittance Date (or, in the case of the first Master Servicer Remittance Date,
from the Cut-off Date) to such Master Servicer Remittance Date, the aggregate
of deposits into and withdrawals from the Certificate Account for each category
of deposit specified in Section 3.04(a) and each category of withdrawal
specified in Section 3.05(a). The Master Servicer shall also deliver to the
Trustee, upon reasonable request of the Trustee, any and all additional
information relating to the Mortgage Pool in the possession of the Master
Servicer (which information shall be based upon reports delivered to the Master
Servicer by the Special Servicer with respect to Specially Serviced Mortgage
Loans and REO Properties).
The Master Servicer, on the first Business Day following each
Determination Date, shall forward to the Special Servicer all information
collected by the Master Servicer which the Special Servicer is required to
include in the reports delivered by the Special Servicer pursuant to Section
4.02(c) below. Further, the Master Servicer shall cooperate with the Special
Servicer and provide the Special Servicer with the information in the
possession of the Master Servicer reasonably requested by the Special Servicer,
in writing, to the extent required to allow the Special Servicer to perform its
obligations under this Agreement with respect to those Mortgage Loans serviced
by the Master Servicer.
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The obligation of the Master Servicer to deliver the reports required
to be delivered by it pursuant to this subsection (b) is subject to the Master
Servicer having received from the Special Servicer in a timely manner the
related reports and information necessary or required to enable the Master
Servicer to prepare and deliver such reports. The Master Servicer shall not be
responsible for the accuracy or content of any report, document or information
furnished by the Special Servicer to the Master Servicer pursuant to this
Agreement and accepted by the Master Servicer in good faith pursuant to this
Agreement.
(c) On the second Business Day after each Determination Date, the
Special Servicer shall forward to the Master Servicer, for each Specially
Serviced Mortgage Loan and REO Property, reports containing all information the
Master Servicer will be required to include in the other reports that the
Master Servicer is obligated to deliver to the Trustee pursuant to Section
4.02(b), to the extent such information relates to any Specially Serviced
Mortgage Loan or any REO Property. The Special Servicer shall also deliver to
the Trustee, upon the reasonable written request of the Trustee, any and all
additional information in the possession of the Special Servicer relating to
the Specially Serviced Mortgage Loans and the REO Properties.
The Special Servicer shall cooperate with the Master Servicer and
provide the Master Servicer with the information in the possession of the
Special Servicer reasonably requested by the Master Servicer, in writing, to
the extent required to allow the Master Servicer to perform its obligations
under this Agreement with respect to the Specially Serviced Mortgage Loans and
REO Properties. Additional information regarding the Specially Serviced
Mortgage Loans and REO Properties, including, without limitation, any financial
or occupancy information (including lease summaries) provided to the Special
Servicer by the Mortgagors or otherwise obtained, shall be delivered to the
Master Servicer, within ten days of receipt.
SECTION 4.03 Delinquency Advances.
(a) On each Delinquency Advance Date, the Master Servicer shall either
(i) deposit into the Certificate Account from its own funds an amount equal to
the aggregate amount of Delinquency Advances, if any, to be made in respect of
the related Distribution Date, (ii) apply amounts held in the Certificate
Account for future distribution to Certificateholders in subsequent months in
discharge of any such obligation to make Delinquency Advances, or (iii) make
Delinquency Advances in the form of any combination of (i) and (ii) aggregating
the total amount of Delinquency Advances to be made; provided that, if Late
Collections (net of related Workout Fees) of the delinquent Monthly Payments
for which Delinquency Advances are to be made for the related Distribution
Date, are on deposit in the Certificate Account and available to make such
Advances, the Master Servicer shall utilize such Late Collections to make such
Advances pursuant to clause (ii) above. Any amounts held in the Certificate
Account for future distribution and so used to make Delinquency Advances shall
be appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Certificate Account on or before the next
succeeding Determination Date (to the extent not previously replaced through
the deposit of Late Collections of the delinquent principal and interest in
respect of which such Delinquency Advances
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were made). If, as of 3:00 p.m., New York City time, on any Master Servicer
Remittance Date, the Trustee shall not have received any Delinquency Advance
required to be made by the Master Servicer pursuant to this Section 4.03(a)
(and the Master Servicer shall not have delivered to the Trustee the requisite
Officer's Certificate and documentation related to a determination of
nonrecoverability of a Delinquency Advance), then the Trustee shall provide
notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. (312) 845-8617 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone at telephone no. (312) 845-8500 (Attention: Master Servicing Manager)
(or such alternative number provided by the Master Servicer to the Trustee in
writing) as soon as possible, but in any event before 5:00 p.m., New York City
time, on such day. If after such notice the Trustee does not receive the full
amount of such Delinquency Advances by 11:00 a.m., New York City time, on the
Business Day immediately following such Master Servicer Remittance Date, then
the Trustee shall make the portion of such Delinquency Advances that was
required to be, but was not, made by the Master Servicer pursuant to this
Section 4.03(a). If the Trustee fails to make a Delinquency Advance required to
be made by it hereunder, the Fiscal Agent shall make such advance no later than
1:00 p.m. New York City time on the Business Day immediately following such
Master Servicer Remittance Date. The making of such advance by the Fiscal Agent
shall cure the failure by the Trustee to make such advance.
(b) The aggregate amount of Delinquency Advances to be made by the
Master Servicer in respect of the Mortgage Loans (including, without
limitation, Balloon Mortgage Loans delinquent as to their respective Balloon
Payments) and any REO Loans for any Distribution Date shall equal, subject to
subsection (c) below, the aggregate of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments, in each case net of related Workout
Fees payable hereunder, that were due or deemed due, as the case may be, in
respect thereof on their respective Due Dates during the 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
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REO Properties on deposit in the Certificate Account. The determination by the
Master Servicer or, if applicable, the Trustee or Fiscal Agent, that it has
made a Nonrecoverable Delinquency Advance or that any proposed Delinquency
Advance, if made, would constitute a Nonrecoverable Delinquency Advance, shall
be evidenced by an Officer's Certificate delivered promptly (and, in any event,
in the case of a proposed Delinquency Advance, no less than two Business Days
prior to the related Delinquency Advance Date) by the Master Servicer to the
Trustee (or, if applicable, retained thereby) and the Depositor, setting forth
the basis for such determination, together with (if such determination is prior
to the liquidation of the related Mortgage Loan or REO Property) a copy of an
Appraisal of the related Mortgaged Property or REO Property, as the case may
be, which shall have been performed within the twelve months preceding such
determination, and further accompanied by any other information that the Master
Servicer or the Special Servicer may have obtained and that supports such
determination. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, may, subject to
its reasonable and good faith determination that such Appraisal will
demonstrate the nonrecoverability of the related Advance, obtain an Appraisal
for such purpose at the expense of the Trust Fund. The Trustee and the Fiscal
Agent shall be entitled to rely on any determination of nonrecoverability that
may have been made by the Master Servicer or the Special Servicer with respect
to a particular Delinquency Advance, and the Master Servicer shall be entitled
to rely on any determination of nonrecoverability that may have been made by
the Special Servicer with respect to a particular Delinquency Advance.
(d) The Master Servicer, the Trustee and the Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time
to time, accrued on the amount of each Delinquency Advance made thereby (out of
its own funds) for so long as such Delinquency Advance is outstanding (or, if
any Delinquency Advance is required to be made in respect of a 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, or if
applicable, a Replacement Mortgage 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.
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(b) On each Distribution Date, following the payments deemed to be
made to REMIC III in respect of the REMIC II Regular Interests on such date
pursuant to Section 4.01(b), the Trustee shall determine the amount, if any, by
which (i) the then aggregate Uncertificated Principal Balance of REMIC II
Regular Interests LA-1, LA-2, LA-3, LB, LC, LD, LE, LF, LG, LH, LJ and LK
exceeds (ii) an amount equal to 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 shall be reduced such that the
Uncertificated Principal Balance of each REMIC II Regular Interest corresponds
with the Certificate Principal Balance of the corresponding Class of
Certificates outstanding after the subsequent adjustments made on such
Distribution Date under Section 4.04(c) below.
(c) On each Distribution Date, following the distributions to be made
to the Certificateholders on such date pursuant to Section 4.01(c), the Trustee
shall determine the amount, if any, by which (i) the then aggregate Certificate
Principal Balance of the Principal Balance Certificates, exceeds (ii) the
aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class K, Class J, Class H,
Class G, Class F, Class E, Class D, Class C and Class B Certificates shall be
reduced sequentially, in that order, in each case, until the first to occur of
such excess being reduced to zero or the related Class Principal Balance being
reduced to zero. If, after the foregoing reductions, the amount described in
clause (i) of the second preceding sentence still exceeds the amount described
in clause (ii) of the second preceding sentence, then the respective Class
Principal Balances of the Class A-1, Class A-2 and Class A-3 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-16. 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 $25,000 in the case of the
Class A-1, A-2 and A-3 Certificates, $50,000 in the case of the Class B, Class
C, Class D, Class E and Class F Certificates, $250,000 in the case of the Class
G, Class H, Class J and Class K Certificates, and $1,000,000 in the case of the
Class X Certificates, and in each such case in any whole dollar denomination in
excess thereof; provided, however, that a single Certificate of each Class
thereof may be issued in a different denomination. The Residual Certificates
will be issuable only in denominations representing Percentage Interests of not
less than 20% in the related Class.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall
be entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
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SECTION 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Master Servicer and the Special Servicer, any
other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided
that the predecessor Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment. If the
Trustee resigns or is removed in accordance with the terms hereof, the
successor trustee shall immediately succeed to its predecessor's duties as
Certificate Registrar. The Depositor, the Master Servicer and the Special
Servicer, shall have the right to inspect the Certificate Register or to obtain
a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register.
(b) No transfer of any Non-Registered Certificate shall be made unless
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
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Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal
and state laws.
(c) (i) No transfer of a Senior Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, 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) 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) (1) such Plan qualifies as an
eligible investor under the terms of Prohibited Transaction Exemption 94-29
(granted to certain affiliates of the Depositor) and (2) at the time of such
transfer, the Senior Certificates continue to be rated in one of the top three
rating categories by at least one Rating Agency or (y) 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. Each Person who acquires
any Senior Certificate or interest therein shall be deemed to have certified
that the foregoing conditions are satisfied.
(ii) No transfer of a Subordinated Certificate or any interest therein
shall be made (A) 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 (B) to any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with 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
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
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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
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
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Agreement from any prospective Transferee to whom such
Person attempts to transfer its Ownership Interest in such
Residual Certificate and (2) not to transfer its Ownership
Interest in such Residual Certificate unless it provides to the
Trustee a certificate substantially in the form attached hereto
as Exhibit C-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted
Transferee or is not a United States Person.
(E) Each Person holding or acquiring an Ownership Interest
in a Residual Certificate, by purchasing an Ownership Interest in
such Certificate, agrees to give the Trustee written notice that
it is a "pass-through interest holder" within the meaning of
temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Residual
Certificate, if it is, or is holding an Ownership Interest in a
Residual Certificate on behalf of, a "pass-through interest
holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Person, then the
last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be
restored, to the extent permitted by law, to all rights as Holder
thereof retroactive to the date of registration of such Transfer of
such Residual Certificate. None of the Trustee, the Master Servicer,
the Special Servicer or the Certificate Registrar shall be under any
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 5.02(d) or
for making any payments due on such Certificate to the Holder thereof
or for taking any other action with respect to such Holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section
5.02(d), or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Person, and to the
extent that the retroactive restoration of the rights of the prior
Holder of such Residual Certificate as described in clause (ii)(A)
above shall be invalid, illegal or unenforceable, then the Trustee
shall have the right, without notice to the Holder or any prior Holder
of such Residual Certificate, to sell such Residual Certificate to a
purchaser selected by the Trustee on such terms as the Trustee may
choose. Such non-complying Holder shall promptly endorse and deliver
such Residual Certificate in accordance with the instructions of the
Trustee. Such purchaser may be the Trustee itself or any Affiliate of
the Trustee. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Trustee or its Affiliates),
expenses and taxes due, if any, will be remitted by the Trustee to
such non-complying Holder. The terms and conditions of any sale under
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this clause (ii)(B) shall be determined in the sole discretion of
the Trustee, and the Trustee shall not be liable to any Person having
an Ownership Interest in a Residual Certificate as a result of its
exercise of such discretion.
(iii) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, all
information necessary to compute any tax imposed (A) as a result of
the Transfer of an Ownership Interest in a Residual Certificate to any
Person who is not a Permitted Transferee, including the information
described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5)with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company,
real estate investment trust, common trust fund, partnership, trust,
estate or organization described in Section 1381 of the Code that
holds an Ownership Interest in a Residual Certificate having as among
its record holders at any time any Person which is not a Permitted
Transferee. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the Trustee for
providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to
this subsection (iv) may be modified, added to or eliminated, provided
that there shall have been delivered to the Trustee and the Depositor
the following:
(A) written notification from each Rating Agency to the
effect that the modification of, addition to or elimination of
such provisions will not cause such Rating Agency to qualify,
downgrade or withdraw its then-current rating of any Class of
Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee and the Depositor, to the effect that
such modification of, addition to or elimination of such
provisions will not cause any of REMIC I, REMIC II or REMIC III
to (x) cease to qualify as a REMIC or (y) be subject to an
entity-level tax caused by the Transfer of any Residual
Certificate to a Person which is not a Permitted Transferee, or
cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a
Residual Certificate to a Person which is not a Permitted
Transferee.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the offices of the Certificate
Registrar maintained for such purpose, the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class of a like aggre gate Percentage Interest.
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(f) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Trustee or the Certificate Registrar) be
duly endorsed by, or be accompanied by a written instrument of transfer in the
form satisfactory to the Trustee and the Certificate Registrar duly executed
by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
(j) 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 each such Person with an updated copy of the
Certificate Register on or about January 1 and July 1 of each year, commencing
January 1, 1998.
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.
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(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements
between such Certificate Owners and the Depository Participants and brokerage
firms representing such Certificate Owners. Multiple requests and directions
from, and votes of, the Depository as Holder of the Book-Entry Certificates
with respect to any particular matter shall not be deemed inconsistent if they
are made with respect to different Certificate Owners. The Trustee may
establish a reasonable record date in connection with solicitations of consents
from or voting by Certificateholders and shall give notice to the Depository of
such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer and any other documents necessary to satisfy the
requirements of any applicable transfer restrictions, the Trustee shall
execute, and the Certificate Registrar shall authenticate and deliver, the
applicable Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Fiscal Agent or the Certificate Registrar shall be liable for
any delay in delivery of such instructions, and each may conclusively rely on,
and shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates for purposes of evidencing ownership of the Registered
Certificates held in book-entry form, the registered holders of such Definitive
Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
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SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate, and (ii) there is
delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of actual notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.05 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, 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 Fiscal
Agent, 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).
SECTION 5.06 Transfer Procedures.
Neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction or transfer imposed under Article V under this Agreement or under
applicable law with respect to any transfer of any Certificate, or any interest
therein, other than to require delivery of the certification(s) and/or Opinions
of Counsel described in Article V applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register.
The Trustee and the Certificate Registrar shall have no liability for
transfers, including transfers made through the book-entry facilities of the
Depository or between or among Depository Participants or Certificate Owners,
made in violation of applicable restrictions.
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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 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
all of its rights and delegate all of its duties and obligations under this
Agreement; provided that the Person accepting such assignment or delegation
shall be a Person that is qualified to service multifamily mortgage loans on
behalf of FNMA or FHLMC, is reasonably satisfactory to the Trustee and the
Depositor, is willing to service the Mortgage Loans and executes and delivers
to the Depositor and the Trustee an agreement, in form and substance reasonably
satisfactory to the Depositor and the Trustee, which contains an assumption by
such Person of the due and punctual performance and observance of each
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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. Notwithstanding anything above
to the contrary, each of the Master Servicer and the Special Servicer may, in
its sole discretion, appoint Sub-Servicers in accordance with Section 3.22
hereof and independent contractors or agents to perform select duties thereof,
provided that the Master Servicer or the Special Servicer shall not be relieved
from such duties solely by virtue of such appointment.
SECTION 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others.
None of the Depositor, the Master Servicer, the Special Servicer or
any of the directors, officers, employees or agents of the Depositor, the
Master Servicer or the Special Servicer shall be under any liability to the
Trust Fund or the Certificateholders for any action taken or for refraining
from the taking of any action in good faith pursuant to this Agreement or 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
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or examination that it may deem necessary or desirable in respect to this
Agreement and the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. In such event, the legal expenses and costs
of such action, proceeding, hearing or examination and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Master Servicer and the Special Servicer shall be entitled to be
reimbursed therefor out of amounts attributable to the Mortgage Loans on
deposit in the Certificate Account as provided by Section 3.05(a).
SECTION 6.04 Depositor, Master Servicer and Special Servicer Not to
Resign.
Subject to the provisions of Section 6.02, none of the Depositor, the
Master Servicer or the Special Servicer shall resign from its respective
obligations and duties hereby imposed on it except upon determination that its
duties hereunder are no longer permissible under applicable law. Any such
determination permitting the resignation of the Depositor, the Master Servicer
or the Special Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee. No such resignation by the Master Servicer or
the Special Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the responsibilities and obligations of the Master
Servicer or the Special Servicer, as the case may be, in accordance with
Section 7.02.
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 (provided, however,
that the Master Servicer will pay the Trustee interest on such late payment
at the prime rate until such late payment is received by the Trustee); 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 or the Special Servicer, as the case
may be by the Holders of Certificates entitled to not less than 25% of the
Voting Rights; or
(v) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement
which materially and adversely
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affects the interests of any Class of Certificateholders and which
continues unremedied for a period of 30 days after the date on which notice
of such breach, requiring the same to be remedied, shall have been given to
the Master Servicer or the Special Servicer by the Trustee or the
Depositor, or to the Master Servicer or the Special Servicer, as the case
may be by the Holders of Certificates entitled to not less than 25% of the
Voting Rights; 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 appli cable 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 otherwise,
shall pass to and be vested in
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the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby author ized and empowered to execute and deliver, on behalf
of and at the expense of the Defaulting Party, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of
such notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. The
Master Servicer and the Special Servicer each agrees that if it is terminated
pursuant to this Section 7.01(b), it shall promptly (and in any event no later
than ten Business Days subsequent to its receipt of the notice of termination)
provide the Trustee or any other Successor Master Servicer or Special Servicer
with all documents and records requested by it to enable it to assume the
Master Servicer's or Special Servicer's, as the case may be, functions
hereunder, and shall cooperate with the Trustee or any other Successor Master
Servicer or Special Servicer in effecting the termination of the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including, without limitation, the transfer within two
Business Days to the Trustee or any other Successor Master Servicer or Special
Servicer for administration by it of all cash amounts which shall at the time
be or should have been credited by the Master Servicer or the Special Servicer
to the Certificate Account, the Distribution Account, the REO Account or any
Servicing Account or thereafter be received with respect to the Mortgage Loans
or any REO Property (provided, however, that the Master Servicer and the
Special Servicer each shall continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the date of such
termination, whether in respect of Advances made by it or otherwise, and it and
its directors, officers, employees and agents shall continue to be entitled to
the benefits of Section 6.03 notwithstanding any such termination).
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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 compen sation 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 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.
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SECTION 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or
the Special Servicer pursuant to Section 7.01 or any appointment of a successor
to the Master Servicer or the Special Servicer pursuant to Section 7.02, the
Trustee shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 66 2/3% of the
Voting Rights allocated to the Classes of Certificates affected by any Event of
Default hereunder may waive such Event of Default; provided, however, that an
Event of Default under clause (i) or (ii) of Section 7.01 may be waived only by
all of the Certificateholders of the affected Classes. Upon any such waiver of
an Event of Default and upon the payment to the Trustee of all costs and
expenses incurred by it in connection with such Event of Default, if any, such
Event of Default shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder. No such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon except to the
extent expressly so waived. Notwithstanding any other provisions of this
Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person held
such Certificates.
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ARTICLE VIII
CONCERNING THE TRUSTEE AND FISCAL AGENT
SECTION 8.01 Duties of Trustee and Fiscal Agent.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee (other than as successor Master Servicer or Special Servicer) shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the 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
deter mine whether they conform to the requirements of this Agreement to the
extent specified herein. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner, the Trustee shall request
the party supplying such instrument to provide an instrument that conforms to
the requirements of this Agreement. Neither the Trustee nor the Fiscal Agent
shall be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer or any
other person and accepted by the Trustee or the Fiscal Agent in good faith,
pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Fiscal Agent from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct; provided, however,
that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the
duties and obligations of the Trustee and the Fiscal Agent shall be
determined solely by the express provisions of this Agreement, the
Trustee and the Fiscal Agent shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee or the Fiscal Agent and,
in the absence of bad faith on the part of the Trustee or the Fiscal
Agent, the Trustee and the Fiscal Agent may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed
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therein, upon any certificates or opinions furnished to the
Trustee or the Fiscal Agent and conforming to the requirements of this
Agreement;
(ii) Neither the Trustee nor the Fiscal Agent shall be personally
liable for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee or the Fiscal Agent,
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 relat ing to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement.
SECTION 8.02 Certain Matters Affecting the Trustee and the Fiscal
Agent.
Except as otherwise provided in Section 8.01:
(i) The Trustee and the Fiscal Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or pre sented by
the proper party or parties;
(ii) The Trustee and the Fiscal Agent may consult with counsel
and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and
in accordance therewith;
(iii) Neither the Trustee nor the Fiscal Agent (in their
respective capacities as such) shall be under any obligation to
exercise any of the trusts or powers vested in it by this Agreement or
to make any investigation of matters arising hereunder or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee or
the Fiscal Agent, as applicable, reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred
therein or thereby; neither the Trustee nor the Fiscal Agent shall be
required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or
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liability is not reasonably assured to it; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default which has not been cured, to
exercise such of the rights and powers vested in it by this Agreement,
and to use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(iv) Neither the Trustee nor the Fiscal Agent shall be personally
liable for any action reasonably taken, suffered or omitted by it in
good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by
Holders of Certificates entitled to at least 50% of the Voting Rights;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition
to taking any such action;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, provided that the Trustee shall not be relieved from
such duties, and the Trustee shall remain responsible for all acts and
omissions of any such agent;
(vii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office, and such notice
references the Certificates or this Agreement; and
(viii) Neither the Trustee nor the Fiscal Agent shall be
responsible for any act or omission of the Master Servicer or the
Special Servicer (unless the Trustee is acting as Master Servicer or
the Special Servicer, as the case may be) or of the Depositor or any
other person.
SECTION 8.03 Trustee and Fiscal Agent not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
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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 neither the Trustee nor the Fiscal Agent assume
responsibility for their correctness. Neither the Trustee nor the Fiscal Agent
make any representations as to the validity or sufficiency of this Agree ment
(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. Neither the Trustee nor the Fiscal Agent shall be
accountable for the use or application by the Depositor of any of the
Certificates issued to it or of the proceeds of such Certificates, or for the
use or applica tion of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in
or withdrawn from the Certificate Account or any other account by or on behalf
of the Depositor, the Master Servicer or the Special Servicer. Neither the
Trustee nor the Fiscal Agent shall be responsible for the accuracy or content
of any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Depositor, the Master Servicer or the Special
Servicer, and accepted by the Trustee or the Fiscal Agent in good faith,
pursuant to this Agreement.
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SECTION 8.04 Trustee and the Fiscal Agent May Own Certificates.
Each of the Trustee and the Fiscal Agent, in their 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 or the Fiscal Agent.
SECTION 8.05 Fees and Expenses of Trustee and the Fiscal Agent;
Indemnification of Trustee.
(a) Monthly, the Trustee shall be entitled to receive the Trustee Fee
from the Master Servicer for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee. On or prior to the Distribution
Date in each month, the Trustee shall be entitled to withdraw and pay itself
from amounts then on deposit in the Distribution Account an amount equal to the
then unpaid Trustee Fees.
(b) The Trustee, Fiscal Agent and any director, officer, employee or
agent of the Trustee and the Fiscal Agent 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 and the Fiscal Agent relating to the exercise and performance of any of
the powers and duties of the Trustee and the Fiscal Agent hereunder; provided
that neither the Trustee, Fiscal Agent nor any of the other above specified
Persons shall be entitled to indemnification pursuant to this Section 8.05(b)
for (i) allocable overhead, (ii) expenses or disbursements incurred or made by
or on behalf of the Trustee in the normal course of the Trustee's and the
Fiscal Agent's performing their routine duties in accordance with any of the
provisions hereof, (iii) any expense or liability specifically required to be
borne thereby pursuant to the terms hereof, or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's 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 or fiscal agent.
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SECTION 8.06 Eligibility Requirements for Trustee and Fiscal Agent.
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States of
America or any State thereof or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at
least $100,000,000 and subject to supervision or examination by federal or
state authority. If such association or corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such association or corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The long-term unsecured debt
obligations of the Trustee shall at all times be rated not less than "BBB" or
an equivalent rating or better by each Rating Agency for so long as a Fiscal
Agent is appointed and acting hereunder; provided that either the Trustee or
the Fiscal Agent shall at all times be an institution whose long-term senior
unsecured debt is rated not less than "AA" or an equivalent or better rating by
each Rating Agency. In case at any time the Trustee or the Fiscal Agent shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee or Fiscal Agent 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 and the Fiscal
Agent.
(a) The Trustee or the Fiscal Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicer, the Special Servicer and to all
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee or fiscal agent acceptable to the
Master Servicer by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee or Fiscal Agent and to the successor trustee
or fiscal agent. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer and the Certificateholders by the Depositor. If
no successor trustee or fiscal agent shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Fiscal Agent may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee or Fiscal Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 and shall fail to
resign after written request therefor by the Depositor or the Master Servicer,
or if at any time the Trustee or Fiscal Agent shall become incapable of acting,
or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or
Fiscal Agent or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or Fiscal Agent or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Depositor may remove the Trustee or Fiscal Agent and appoint a successor
trustee or fiscal agent acceptable to the Master Servicer by written
instrument, in duplicate, which instrument shall be delivered to the Trustee or
Fiscal Agent so removed and to the successor trustee.
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A copy of such instrument shall be delivered to the Master Servicer, the
Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee or the Fiscal Agent and appoint a
successor trustee or fiscal agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Master
Servicer, one complete set to the Trustee so removed and one complete set to
the successor so appointed. A copy of such instrument shall be delivered to the
Depositor, the Special Servicer and the remaining Certificateholders by the
Master Servicer.
(d) Any resignation or removal of the Trustee or the Fiscal Agent and
appointment of a successor trustee or fiscal agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor trustee or fiscal agent as provided in Section
8.08. Upon any succession of the Trustee or the Fiscal Agent under this
Agreement, the predecessor Trustee or the Fiscal Agent shall be entitled to the
payment of compensation and reimbursement for services rendered and expenses
incurred (including without limitation unreimbursed Advances and interest
thereon made thereby) accrued or payable up to and including the effective date
of such termination, at such times and from such sources as if the predecessor
Trustee or Fiscal Agent had not resigned or been removed. Any resignation or
removal of the Trustee shall be deemed to be a simultaneous removal of the
Fiscal Agent hereunder.
SECTION 8.08 Successor Trustee and Fiscal Agent .
(a) Any successor trustee or fiscal agent appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the
Master Servicer, the Special Servicer and to its predecessor trustee or fiscal
agent an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee or fiscal agent shall become
effective and such successor trustee or fiscal agent, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor here under, with the like effect as
if originally named as trustee herein. The predecessor trustee or fiscal agent
shall deliver to the successor trustee or fiscal agent all Mortgage Files and
related documents and statements held by it hereunder (other than any Mortgage
Files at the time held on its behalf by a Custodian, which Custodian shall
become the agent of the successor trustee), and the Depositor, the Master
Servicer, the Special Servicer and the predecessor trustee or fiscal agent
shall execute and deliver such instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee or fiscal agent all such rights, powers, duties and
obligations, and to enable the successor trustee or fiscal agent to perform its
obligations hereunder.
(b) No successor trustee or fiscal agent shall accept appointment as
provided in this Section 8.08 unless at the time of such acceptance such
successor trustee or fiscal agent shall be eligible under the provisions of
Section 8.06.
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(c) Upon acceptance of appointment by a successor trustee or fiscal
agent as provided in this Section 8.08, the successor trustee or fiscal agent
shall mail notice of such appointment to the Depositor and the
Certificateholders.
SECTION 8.09 Merger or Consolidation of Trustee and Fiscal Agent.
Any entity into which the Trustee or the Fiscal Agent may be merged or
converted or with which it may be consolidated or any entity resulting from any
merger, conversion or consolidation to which the Trustee or Fiscal Agent shall
be a party, or any entity succeeding to the business of the Trustee or Fiscal
Agent, shall be the successor of the Trustee or Fiscal Agent hereunder,
provided such entity shall be eligible under the provisions of Section 8.06,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
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 Per sons, in such capacity, such title to the
Trust Fund, or any part thereof, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within fifteen days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
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(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11 Appointment of Custodians.
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 Non-Registered Certificate
belongs. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee ten copies
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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 reports
required to be delivered to Certificateholders of the relevant Class pursuant
to Section 4.02 since the Closing Date, (C) all Officer's Certificates
delivered to the Trustee since the Closing Date pursuant to Section 3.13, (D)
all accountants' reports delivered to the Trustee since the Closing Date
pursuant to Section 3.14, (E) the most recent inspection report prepared by the
Master Servicer or Special Servicer and delivered to the Trustee in respect of
each Mortgaged Property pursuant to Section 3.12, (F) as to each Mortgage Loan
pursuant to which the related Mortgagor is required to deliver such items or
the Master Servicer 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, Trustee's or Fiscal Agent's determination that
any Advance was or, if made, would be a Nonrecoverable Advance. Copies of any
and all of the foregoing items will be available from the Trustee upon 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
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acceptance of their Certificates, shall be deemed to have agreed to keep such
information confidential. Notwithstanding the foregoing provisions of this
Section 8.12(a), the Trustee shall have no responsibility for the accuracy,
completeness or sufficiency for any purpose of any information so made
available or furnished by it pursuant to this Section 8.12(a).
(b) The Trustee shall provide or cause to be provided to the
Depositor, the Master Servicer, and the Special Servicer, and to the Office of
Thrift Supervision, the Federal Deposit Insurance Corporation, and any other
federal or state banking or insurance regulatory authority that may exercise
authority over any Certificateholder, access to the Mortgage Files and any
other documentation regarding the Mortgage Loans and the Trust Fund within its
control which may be required by this Agreement or by applicable law. Such
access shall be afforded without charge but only upon reasonable prior written
request and during normal business hours at the offices of the Trustee
designated by it.
SECTION 8.13 Representations and Warranties of the Trustee and the
Fiscal Agent.
(a) The Trustee hereby represents and warrants to the Master Servicer,
for its own benefit and the benefit of the Certificateholders, and to the
Special Servicer and the Depositor, as of the Closing Date, that:
(i) The Trustee is a nationally chartered bank duly organized,
validly existing and in good standing under the laws of the United
States of America.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by
the Trustee, will not violate the Trustee's organizational documents
or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iii) This Agreement, assuming due authorization, execution and
delivery by the Special Servicer, the Master Servicer, the Fiscal
Agent and the Depositor, constitutes a valid, legal and binding
obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditor's rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(iv) The Trustee is not in default with respect to any order or
decree of any court, or any order, regulation or demand of any
federal, state, municipal or governmental agency having jurisdiction,
which default, in the Trustee's good faith
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and reasonable judgment, is likely to affect materially and
adversely the ability of the Trustee to perform its obligations or the
financial condition or operations of the Trustee or its properties.
(v) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the
Trustee from entering into this Agreement or, in the Trustee's good
faith and reasonable judgment, is likely to materially and adversely
affect the ability of the Trustee to perform its obligations under
this Agreement.
(vi) No consent, approval, authorization or order of,
registration or filing with or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Trustee with this
Agreement, or the consummation by the Trustee of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorization, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on performance by the Trustee
under this Agreement.
(b) The Fiscal Agent hereby represents and warrants to the Master
Servicer, for its own benefit and the benefit of the Certificateholders, and to
the Special Servicer and the Depositor, as of the Closing Date, that:
(i) The Fiscal Agent is an organization organized under the laws
of the Netherlands, duly organized, validly existing and in good
standing under the laws governing its creation and existence.
(ii) The execution and delivery of this Agreement by the Fiscal
Agent, and the performance and compliance with the terms of this
Agreement by the Fiscal Agent, will not violate the Fiscal Agent's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) This Agreement, assuming due authorization, execution and
delivery by the Special Servicer, the Master Servicer, the Trustee and
the Depositor, constitutes a valid, legal and binding obligation of
the Fiscal Agent, enforceable against the Fiscal Agent in accordance
with the terms hereof, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and general principles of equity,
regardless of whether such enforcement is considered in a proceeding
in equity or at law.
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(iv) The Fiscal Agent is not in default with respect to any order
or decree of any court, or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default, in
the Fiscal Agent's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Fiscal Agent
to perform its obligations or the financial condition or operations of
the Fiscal Agent or its properties.
(v) No litigation is pending or, to the best of the Fiscal
Agent's knowledge, threatened against the Fiscal Agent which would
prohibit the Fiscal Agent from entering into this Agreement or, in the
Fiscal Agent's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Fiscal Agent to
perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of,
registration or filing with or notice to, any governmental authority
or court is required, under federal or state law for the execution,
delivery and performance of or compliance by the Fiscal Agent with
this Agreement, or the consummation by the Fiscal Agent of any
transaction contemplated hereby, other than (1) such consents,
approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained or made and (2) where the lack of such
consent, approval, authorization, qualification, registration, filing
or notice would not have a material adverse effect on the performance
by the Fiscal Agent under this Agreement.
SECTION 8.14 Filings with the Securities and Exchange Commission.
Based on information furnished to it by the Master Servicer and the
Depositor (in an 80 column unformatted electronic format acceptable to the
Trustee), the Trustee will prepare and file with the Securities and Exchange
Commission on Forms 8-K and 10-K (including EDGAR filings), on behalf of the
Trust Fund the Distribution Date Statement. The Trustee shall have no
responsibility to file any items other than those specified in this Section
8.14. Prior to January 2, 1998 (and each anniversary thereafter until directed
by the Depositor to file a form 15, delisting the transaction) the Trustee
shall hire counsel selected by the Depositor to file Form 10-K's on behalf of
the Trust Fund for the preceding fiscal year. Any fees and expenses accrued and
incurred by the Trustee in connection with this Section 8.14 (including
reasonable attorneys' fees) shall be reimbursed to it by the Depositor. Prior
to filing any such reports, the Trustee shall submit reports to the Depositor
for review and approval.
SECTION 8.15 Fiscal Agent Termination Event.
"Fiscal Agent Termination Event," wherever used herein, means any one
of the following events:
(i) Any failure by the Fiscal Agent to remit to the Trustee when
due any required Advances; or
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(ii) A decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Fiscal Agent and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or of or
relating to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(v) Any Rating Agency shall indicate its intent to reduce, qualify or
withdraw the outstanding rating of any Class of Certificates because the
prospective financial condition or capacity to make Advances of the Fiscal
Agent is insufficient to maintain such rating; or
(vi) The long-term unsecured debt of the Fiscal Agent is rated below
"AA" or "Aa2", as applicable, by any Rating Agency.
SECTION 8.16 Procedure Upon Termination Event.
On the date specified in a written notice of termination given to the
Fiscal Agent pursuant to Section 8.07, all authority, power and rights of the
Fiscal Agent under this Agreement, whether with respect to the Mortgage Loans
or otherwise, shall terminate and a successor Fiscal Agent shall be appointed
by the Trustee, with the consent of the Depositor; provided that in no event
shall the termination of the Fiscal Agent be effective until Rating Agency
Confirmation shall have been obtained with respect to a successor fiscal agent.
The Fiscal Agent agrees to cooperate with the Trustee in effecting the
termination of the Fiscal Agent's responsibilities and rights hereunder as
Fiscal Agent.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
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Subject to Section 9.02, the Trust Fund and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master
Servicer, the Special Servicer, the Fiscal Agent and the Trustee (other than
the obligations of the Trustee to provide for and make payments to
Certificateholders as 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 1% 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 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
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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 the last paragraph of Section 4.01(g).
SECTION 9.02 Additional Termination Requirements.
(a) In the event the Master Servicer or the Depositor purchases all of
the Mortgage Loans and each REO Property remaining in REMIC I as provided in
Section 9.01, the Trust Fund (and, accordingly, REMIC I, REMIC II and REMIC
III) shall be terminated in accordance with the following additional
requirements, unless the Master Servicer or the Depositor, as the case may be,
obtains at its own expense and delivers to the Trustee an Opinion of Counsel,
addressed to the Depositor, the Master Servicer and the Trustee, to the effect
that the failure of the Trust Fund to comply with the requirements of this
Section 9.02 will not 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:
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(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 prepared by the Master Servicer or the Depositor,
which authorization shall be binding upon all successor Certificateholders.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The Trustee shall make an election to treat each of REMIC I, REMIC
II and REMIC III as a REMIC under the Code and, if necessary, under applicable
state law. Such election will be made on Form 1066 or other appropriate federal
tax or information return (including Form 8811) or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued. The REMIC I Regular Interests are hereby designated as
the "regular interests" (within the meaning of Section 860G(a)(1) of the Code),
and the Class R-I Certificates are hereby designated as the sole class of
"residual interests" (within the meaning of Section 860G(a)(2) of the Code), in
REMIC I. The REMIC II Regular Interests are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the
Class R-II Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
The REMIC III Regular Certificates are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1)) 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
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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)-1, as the
tax matters person of such REMIC. By its acceptance thereof, the Holder of
Residual Certificates representing the largest Percentage Interest in each
Class thereof hereby agrees to irrevocably appoint the Trustee as its agent to
perform all of the duties of the tax matters person for the related REMIC
created hereunder.
(d) The Trustee shall prepare or cause to be prepared, sign and file,
in a timely manner, all of the Tax Returns that it determines are required with
respect to 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)
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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 as 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.
(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
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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, the Fiscal
Agent 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 Fiscal Agent, the Master Servicer, or the
Special Servicer shall sell, dispose of or substitute for any of the Mortgage
Loans (except in connection with (i) the default, imminent default or
foreclosure of a Mortgage Loan, including but not limited to, the acquisition
or sale of a Mortgaged Property acquired by deed in lieu of foreclosure, (ii)
the bankruptcy of REMIC I, REMIC II or REMIC III, (iii) the termination of the
Trust Fund pursuant to Article IX of this Agreement or (iv) a purchase of
Mortgage Loans pursuant to or as contemplated by Section 2.03 or 3.18 of this
Agreement) or acquire any assets for the Trust Fund or sell or dispose of any
investments in the Certificate Account, the Distribution Account, or the REO
Account for gain, or accept any contributions to the Trust Fund after the
Closing Date, unless it has received an Opinion of Counsel that such sale,
disposition, substitution or acquisition will not (a) affect adversely the
status of REMIC I, REMIC II or REMIC III as a REMIC or (b) 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, Fiscal
Agent 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, the Fiscal Agent and
the Depositor shall each furnish such reports, certifications and information,
and access to such books and records maintained thereby, as may relate to the
Certificates or the Trust Fund and as shall be reasonably requested by the
Trustee in order to enable it to perform its duties hereunder.
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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 this
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Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in
the aggregate not less than 66 2/3% of the Percentage Interests of each Class
of Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate, or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in
any such case without the consent of the Holders of all Certificates
of such Class then outstanding.
(c) Notwithstanding the foregoing, the Trustee will not be entitled to
consent to any amendment hereto without having first received an Opinion or
Opinions of Counsel to the effect that (i) such amendment is permitted pursuant
to the terms of this Agreement and (ii) such amendment or the exercise of any
power granted to the Master Servicer, the Special Servicer, the Depositor, the
Trustee or any other specified person in accordance with such amendment will
not result in the imposition of a tax on REMIC I, REMIC II or REMIC III
pursuant to the REMIC Provisions or cause REMIC I, REMIC II or REMIC III to
fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
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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, such direction to be given by the Trustee only upon the
Trustee's receipt of an Opinion of Counsel to be obtained by the party
requesting such recordation (the cost of which may be paid out of the
Certificate Account) to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court 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
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given to the Trustee a written notice of default hereunder, and of the
continuance thereof, as hereinbefore provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding. The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it under this Section 11.03(c) or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Holders of Certificates unless such
Holders have offered to the Trustee reasonable security against the costs,
expenses and liabilities which may be incurred therein or hereby. It is
understood and intended, and expressly covenanted by each Certificateholder
with every other Certificateholder and the Trustee, that no one or more Holders
of Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.03(c), each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04 GOVERNING LAW.
THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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: Structured Finance
Manager, telecopy number: (215) 328-1775; (ii) in the case of the Master
Servicer, 650 Dresher Road, Horsham, Pennsylvania 19044, Attention: Servicing
Manager, telecopy number: (215) 328-1796 (with a copy to General Counsel);
(iii) in the case of the Trustee and the Fiscal Agent, the Corporate Trust
Office; (iv) in the case of the Special Servicer, 650 Dresher Road, Horsham,
Pennsylvania 19044, telecopy number (215) 328-1796, Attention: Servicing
Manager, (with a copy to General Counsel); (v) in the case of the Rating
Agencies, (A) Standard & Poor's Rating Services, 26 Broadway, New York, New
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York 10004, Attention: Commercial Mortgage Surveillance Manager, telecopy
number: (212) 208-0053, (B) Moody's Investors Services, Inc., 99 Church
Street, New York, New York, Attention: CMBS Rating and Monitoring, telecopy
number: (212) 553-1350 and (c) Fitch Investors Service, L.P., One State Street
Plaza, New York New York, 10004, Attention: Commercial Mortgage Surveillance,
telecopy number: (212) 635-0295; and (vi) in the case of the Underwriters, (A)
Deutsche Morgan Grenfell Inc., 31 West 52nd Street, New York, NY 10019,
Attention ______________, telecopy number: (212) _____________, (B) Lehman
Brothers Inc., Three World Financial Center, New York, New York 10028,
Attention: Tricia Hall, telecopy number: (212) 526-5850, (C) Llama Company,
L.P., One McIllroy Plaza, Suite 302, Fayetteville, Arkansas 72701, Attention:
________________, telecopy number: ________________, (D) Morgan Stanley & Co.,
Incorporated, 1585 Broadway, 37th Floor, New York, New York 10036, Attention:
______________, telecopy number: (212) ______________, and (E) Residential
Funding Securities Corporation, 8400 Normandale Lake Boulevard, Minneapolis,
Minnesota 55437, Attention: ____________________, telecopy number: ( )
____________. 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, provi sions 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 (including all Replacement Mortgage Loans), all principal and interest
received or receivable with respect to the Mortgage Loans (other than principal
and interest payments due and payable prior to the Cut-off Date and Principal
Prepayments received prior to the Cut-off Date), all amounts held from time to
time in the Certificate Account and the Distribution Account and all
reinvestment earnings on such amounts,
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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 E hereto in all
appropriate locations in the Commonwealth of Pennsylvania promptly following
the initial issuance of the Certificates, and the Master Servicer shall prepare
and file at each such office, and the Trustee shall execute, continuation
statements thereto, in each case within six months prior to the fifth
anniversary of the immediately preceding filing. The Depositor shall cooperate
in a reasonable manner with the Trustee and the Master Servicer in preparing
and filing such continuation statements. This Section 11.07 shall constitute
notice to the Trustee pursuant to any of the requirements of the applicable
Uniform Commercial Code.
SECTION 11.08 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the 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, the
Special Servicer or the Fiscal Agent;
(iv) any change in the location of the Distribution Account;
(v) a copy of the notice given pursuant to Section 2.03(a) and the
repurchase of 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.
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(b) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14.
(c) To the extent it is not already required to do so under Section
4.02 hereof, the Trustee shall promptly furnish to each Rating Agency copies of
each report prepared and/or delivered by it pursuant to Section 4.02 hereof.
<PAGE>
170
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.,
Depositor
By: /s/ Elisa George
-------------------------------------
Name: Elisa George
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer and Special Servicer
By: /s/ Elisa George
-------------------------------------
Name: Elisa George
Title: Senior Vice President
LASALLE NATIONAL BANK,
Trustee
By: /s/ Russell M. Goldenberg
-------------------------------------
Name: Russell M. Goldenberg
Title: Senior Vice President
ABN AMRO BANK, N.V.,
Fiscal Agent
By: /s/ Robert C. Smolka
-------------------------------------
Name: Robert C. Smolka
Title: Group Vice President
By: /s/ Irene Pazik
-------------------------------------
Name: Irene Pazik
Title: Vice President
<PAGE>
171
STATE OF PENNSYLVANIA)
) ss.:
COUNTY OF MONTGOMERY )
On the 30th day of September, 1997 before me, a notary public in and
for said State, personally appeared Elisa S. George known to me to be a
Senior 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 corpora tion, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Virginia M. Sterling
---------------------------------
Notary Public
[Notarial Seal]
<PAGE>
172
STATE OF PENNSYLVANIA)
) ss.:
COUNTY OF MONTGOMERY )
On the 30th day of September, 1997, before me, a notary public
in and for said State, personally appeared Elisa S. George known to me to be a
Senior Vice President of GMAC COMMERCIAL MORTGAGE CORPORATION, one of the
corporations that executed the within instrument, and also known to me to be
the person who executed it on behalf of such corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Virginia M. Sterling
---------------------------------
Notary Public
[Notarial Seal]
<PAGE>
173
STATE OF ILLINOIS)
) ss.:
COUNTY OF COOK )
On the 26th day of September, 1997 before me, Carissa Jean Pogue,
a notary public in and for said State, personally appeared Russell M.
Goldenberg known to me to be Senior Vice President of LASALLE NATIONAL BANK,
one of the corporations that executed the within instrument, and also known
to me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Carissa Jean Pogue
---------------------------------
Notary Public
[Notarial Seal]
<PAGE>
174
STATE OF ILLINOIS)
) ss.:
COUNTY OF COOK )
On the 26th day of September, 1997 before me, Carissa Jean Pogue,
a notary public in and for said State, personally appeared Irene Pazik,
Vice President, and Robert C. Smolka, Group Vice President of ABN AMRO BANK,
N.V., one of the corporations that executed the within instrument, and also
known to me to be the persons who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Carissa Jean Pogue
---------------------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF CLASS X CERTIFICATE
CLASS X MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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: Certificate Notional Amount
Variable of this Class X Certificate as of
the Issue Date: $_____________
Date of Pooling and Servicing Class Notional Amount of all
Agreement: September 1, 1997 the Class X Certificates as of the
Issue Date: $1,696,984,278
Cut-off Date: September 30, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278.00
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. X-__ CUSIP No. 361849 CB 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
<PAGE>
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK 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 SEPTEMBER 30, 1997. 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 $51.28 OF OID PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD
TO MATURITY IS 8.123196% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL ACCRUAL PERIOD IS NO MORE THAN $0.35 PER $1,000 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 Certificate (obtained by dividing
the notional principal amount of this Class X Certificate (its "Certificate
Notional Amount") as of the Issue Date by the aggregate notional principal
balance of all the Class X Certificates (their "Class Notional Amount") as of
the Issue Date) in that certain beneficial ownership interest evidenced by all
the Class X Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the
<PAGE>
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(as to the Class X 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 Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on any Class X Certificate will be made by the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well) and such Certificateholder
is the registered owner of all the Class X Certificates, or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the offices of the Certificate Registrar appointed as provided in the Agreement
or such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series
1997-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 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class X Certificates are exchangeable for new Class X Certifi cates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
<PAGE>
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class X Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of a Senior 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)(1) such Plan qualifies as an eligible
investor under the terms of Prohibited Transaction Exemption 94-29 (granted to
GMAC and certain of its affiliates) and (2) at the time of such transfer, the
Senior Certificates continue to be rated in one of the top three rating
categories by at least one Rating Agency or (y) 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. Each Person who acquires any
Senior Certificate or interest therein shall be deemed to have certified that
the foregoing conditions are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class X Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Class X Certificates.
Notwithstanding the foregoing, for so long as this
Certificate is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC, transfers of interests in
this Certificate shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans
<PAGE>
and any REO Properties remaining in the Trust Fund. The Agreement permits, but
does not require, the Depositor or the Master Servicer to purchase from the
Trust Fund all Mortgage Loans and any REO Properties remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Cut-off Date Principal Balance of the Mortgage Pool specified on the
face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
as Trustee
By:
---------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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 A-1 CERTIFICATE
CLASS A-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
6.830% per annum A-1 Certificate as of the Issue Date:
$---------------
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: September 30, 1997 A-1 Certificates as of the Issue Date:
$261,582,000
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. A-1-__ CUSIP No. 361849 BT 8
</TABLE>
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
<PAGE>
-2-
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K
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 "Agree ment"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, LaSalle National Bank, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which
<PAGE>
-3-
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 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), 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
1997-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
<PAGE>
-4-
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 re quested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of a Senior 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)(1) such Plan qualifies as an eligible
investor under the terms of Prohibited Transaction Exemption 94-29 (granted to
GMAC and certain of its affiliates) and (2) at the time of such transfer, the
Senior Certificates continue to be rated in one of the top three rating
categories by at least one Rating Agency or (y) 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. Each Person who acquires any
Senior Certificate or interest therein shall be deemed to have certified that
the foregoing conditions are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class A-1 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Class A-1 Certificates.
Notwithstanding the foregoing, for so long as this
Certificate is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC, transfers of interests in
this Certificate shall be made through the book-entry facilities of DTC.
<PAGE>
-5-
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, 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
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
<PAGE>
-6-
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
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:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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-2 CERTIFICATE
CLASS A-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
6.853% per annum A-2 Certificate as of the Issue Date:
$---------------
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: September 1, 1997 A-2 Certificates as of the Issue Date:
$---------------
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. A-2-__ CUSIP No. 361849 BU 5
</TABLE>
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,
<PAGE>
-2-
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-2 Certificate (obtained by
dividing the principal balance of this Class A-2 Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-2 Certificates (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest evidenced by all the
Class A-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agree ment"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, LaSalle National Bank, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is
<PAGE>
-3-
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 A-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 A-2 Certificates
on the applicable Distribution Date pursuant to the Agreement. All
distributions made under the Agreement on any Class A-2 Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well),
or otherwise by check mailed to the address of such Certificateholder appearing
in the Certificate Register. Notwithstanding the above, the final distribution
on this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certifi cate 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
1997-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
<PAGE>
-4-
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class A-2 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class A-2 Certificates are exchangeable for new Class A-2 Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as re quested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of a Senior 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) such Plan qualifies as an eligible
investor under the terms of Prohibited Transaction Exemption 94-29 (granted to
GMAC and certain of its affiliates) and (y) at the time of such transfer, the
Senior Certificates continue to be rated in one of the top three rating
categories by at least one Rating Agency. Each Person who acquires any Senior
Certificate or interest therein shall be deemed to have certified that the
foregoing conditions are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class A-2 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Class A-2 Certificates.
Notwithstanding the foregoing, for so long as this
Certificate is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC, transfers of interests in
this Certificate shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and
<PAGE>
-5-
any agents of any of them may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off 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
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
as Trustee
By:
--------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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-3 CERTIFICATE
CLASS A-3 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
6.869% per annum A-3 Certificate as of the Issue Date:
$ ________________________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: September 1, 1997 A-3 Certificates as of the Issue Date:
$724,100,000
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. A-3-__ CUSIP No. 361849 BV 3
</TABLE>
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
<PAGE>
-2-
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-3 Certificate (obtained by
dividing the principal balance of this Class A-3 Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-3 Certificates (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest evidenced by all the
Class A-3 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agree ment"), among GMAC
Commercial Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, and LaSalle National
Bank, 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,
<PAGE>
-3-
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 A-3 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-3 Certificates
on the applicable Distribution Date pursuant to the Agreement. All
distributions made under the Agreement on any Class A-3 Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well),
or otherwise by check mailed to the address of such Certificateholder appearing
in the Certificate Register. Notwithstanding the above, the final distribution
on this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certifi cate 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
1997-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
<PAGE>
-4-
expenses incurred, with respect to the Mortgage Loans and the payment of
interest on such advances and expenses.
The Class A-3 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class A-3 Certificates are exchangeable for new Class A-3 Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as re quested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of a Senior 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)(1) such Plan qualifies as an eligible
investor under the terms of Prohibited Transaction Exemption 94-29 (granted to
GMAC and certain of its affiliates) and (2) at the time of such transfer, the
Senior Certificates continue to be rated in one of the top three rating
categories by at least one Rating Agency or (y) 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. Each Person who acquires any
Senior Certificate or interest therein shall be deemed to have certified that
the foregoing conditions are satisfied.
No service charge will be imposed for any registration of
transfer or exchange of Class A-3 Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Class A-3 Certificates.
Notwithstanding the foregoing, for so long as this
Certificate is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC, transfers of interests in
this Certificate shall be made through the book-entry facilities of DTC.
<PAGE>
-5-
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
<PAGE>
-6-
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
as Trustee
By:
------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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 B CERTIFICATE
CLASS B MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
6.918% per annum B Certificate as of the Issue Date:
$67,879,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: September 1, 1997 Class B Certificates as of the Issue Date:
$67,879,000
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. B-__ CUSIP No. 361849 BW 1
</TABLE>
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
<PAGE>
-2-
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, AND
CLASS X 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-2 AND CLASS A-3 CERTIFICATES OF THE SAME SERIES. IN
ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL
BALANCE OF THE CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J
AND CLASS K CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
<PAGE>
-3-
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES
ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class B Certificate (obtained by dividing
the principal balance of this Class B Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class B Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle National Bank, as Trustee and
ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(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), 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 Certifi cate 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
<PAGE>
-4-
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
1997-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 Certifi cates 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:
<PAGE>
-5-
(x) in the case of a Class B Certificate that constitutes a Book-Entry
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 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 Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
<PAGE>
-6-
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
as Trustee
By:
----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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 C CERTIFICATE
CLASS C MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
6.898% per annum C Certificate as of the Issue Date:
$50,909,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: September 1, 1997 Class C Certificates as of the Issue Date:
$50,909,000
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. C-__ CUSIP No. 361849 BX 9
</TABLE>
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
<PAGE>
-2-
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS X
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-2, CLASS A-3 AND CLASS B CERTIFICATES OF THE SAME SERIES. IN
ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL
BALANCE OF THE CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K
CERTIFICATES
<PAGE>
-3-
OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS
AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class C Certificate (obtained by dividing
the principal balance of this Class C Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class C Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle National Bank, as Trustee and
ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(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), 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 Certifi cate 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
<PAGE>
-4-
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
1997-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 Certifi cates 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:
<PAGE>
-5-
(x) in the case of a Class C Certificate that constitutes a Book-Entry
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 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 Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
<PAGE>
-6-
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
as Trustee
By:
------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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 D CERTIFICATE
CLASS D MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
6.997% per annum D Certificate as of the Issue Date:
$50,909,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: September 1, 1997 Class D Certificates as of the Issue Date:
$50,909,000
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. D-__ CUSIP No. 361849 BY 7
</TABLE>
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
<PAGE>
-2-
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X, 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-2, CLASS A-3, CLASS B AND CLASS C CERTIFICATES OF THE SAME
SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS
K CERTIFICATES
<PAGE>
-3-
OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS
AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class D Certificate (obtained by dividing
the principal balance of this Class D Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class D Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle National Bank, as Trustee and
ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(as to the Class D Certificates, the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of the Class D Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on any Class D Certificate will be made by the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certifi cate 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
<PAGE>
-4-
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
1997-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 Certifi cates 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:
<PAGE>
-5-
(x) in the case of a Class D Certificate that constitutes a Book-Entry
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 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 Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
<PAGE>
-6-
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
as Trustee
By:
------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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 E CERTIFICATE
CLASS E MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
7.085% per annum E Certificate as of the Issue Date:
$93,334,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: September 1, 1997 Class E Certificates as of the Issue Date:
$93,334,000
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. E-__ CUSIP No. 361849 BZ 4
</TABLE>
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
<PAGE>
-2-
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X, 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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C AND CLASS D CERTIFICATES OF
THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE
CERTIFICATE PRINCIPAL
<PAGE>
-3-
BALANCE OF THE CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K 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, LaSalle National Bank, as Trustee and
ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(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), 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 Certifi-
<PAGE>
-4-
cate 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
1997-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 Certifi cates 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
<PAGE>
-5-
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 E Certificate that constitutes a
Book-Entry 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 Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the
<PAGE>
-6-
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
as Trustee
By:
------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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 F CERTIFICATE
CLASS F MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
7.222% per annum F Certificate as of the Issue Date:
$25,454,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: September 1, 1997 Class F Certificates as of the Issue
Date: $25,454,000
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. F-__ CUSIP No. 361849 CA 8
</TABLE>
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
<PAGE>
-2-
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X, 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.
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-2, CLASS A-3, CLASS B, CLASS C, CLASS D AND CLASS E
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS G, CLASS H, CLASS J AND
CLASS K
<PAGE>
-3-
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 F Certificate (obtained by dividing
the principal balance of this Class F Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class F Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle National Bank, as Trustee and
ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(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), 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 Certifi cate 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
<PAGE>
-4-
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
1997-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 Certifi cates 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 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
<PAGE>
-5-
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 Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
<PAGE>
-6-
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
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
as Trustee
By:
---------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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 G CERTIFICATE
CLASS G MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
Lesser of 7.414% per annum or the G Certificate as of the Issue Date: Average
Weighted Average Net Mortgage Rate $84,849,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: September 1, 1997 Class G Certificates as of the Issue
Date: $84,849,000
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. G-__ CUSIP No. 361849 CC 4
</TABLE>
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
<PAGE>
-2-
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X, 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.
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"
<PAGE>
-3-
(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 SEPTEMBER 30, 1997.
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 $47.19 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, THE YIELD TO MATURITY IS 7.955036% PER ANNUM AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $0.07 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-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS H, CLASS J AND CLASS K
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF
AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class G Certificate (obtained by dividing
the principal balance of this Class G Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class G Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle National Bank, as Trustee and
ABN
<PAGE>
-4-
AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(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), 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 Certifi cate 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
1997-C1 (the "Certificates") are limited in right of distribution to certain
collections and recoveries respecting the
<PAGE>
-5-
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 Certifi cates 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 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
<PAGE>
-6-
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.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer,
<PAGE>
-7-
the Trustee, the Fiscal Agent, the Certificate Registrar or any such agent
shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
as Trustee
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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 H CERTIFICATE
CLASS H MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
Lesser of 6.600% or the H Certificate as of the Issue Date:
Weighted Average Net Mortgage Rate $___________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: September 1, 1997 Class H Certificates as of the Issue
Date: $59,394,000
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. H-__ CUSIP No. 361849 CD 2
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
GMAC COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL
MORTGAGE CORPORATION, LASALLE NATIONAL BANK OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
<PAGE>
-2-
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G CERTIFI CATES 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 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 SEPTEMBER 30, 1997. 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 $308.50 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE
YIELD TO MATURITY IS
<PAGE>
-3-
10.402730% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $0.25 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-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F
AND CLASS G CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON
WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS J AND CLASS K
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that ___________ is the registered owner of
the Percentage Interest evidenced by this Class H Certificate (obtained by
dividing the principal balance of this Class H Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class H Certificates (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
H Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle National Bank, as Trustee and
ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(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
<PAGE>
-4-
Agreement on any Class H Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well), or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certifi cate 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
1997-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 Certifi cates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
<PAGE>
-5-
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 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
<PAGE>
-6-
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.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
<PAGE>
-7-
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
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
as Trustee
By:
------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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 J CERTIFICATE
CLASS J MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
Lesser of 6.600% or the J Certificate as of the Issue Date:
Weighted Average Net Mortgage Rate $___________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: September 1, 1997 Class J Certificates as of the Issue
Date: $16,969,000
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. J-__ CUSIP No. 361849 CE 0
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
GMAC COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL
MORTGAGE CORPORATION, LASALLE NATIONAL BANK OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
<PAGE>
-2-
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G CERTIFI CATES 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 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 SEPTEMBER 30, 1997. 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 $447.85 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE
YIELD TO MATURITY IS 12.856576% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE
<PAGE>
-3-
INITIAL ACCRUAL PERIOD IS NO MORE THAN $0.21 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-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, AND CLASS H CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING
THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS K
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that ___________ is the registered owner of
the Percentage Interest evidenced by this Class J Certificate (obtained by
dividing the principal balance of this Class H Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class H Certificates (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
H Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle National Bank, as Trustee and
ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(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
<PAGE>
-4-
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well),
or otherwise by check mailed to the address of such Certificateholder appearing
in the Certificate Register. Notwithstanding the above, the final distribution
on this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certifi cate 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
1997-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 J Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class J Certificates are exchangeable for new Class J Certifi cates 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
<PAGE>
-5-
duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Class J Certificates in authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer of any Class J Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of: (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 J Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of any Class J Certificate without registration or
qualification. Any Class J Certificateholder desiring to effect such a transfer
shall, and by the acceptance of its Class J Certificate agrees to, indemnify
the Depositor, the Trustee and the Certificate Registrar against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of a Class J 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 J
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 J Certificate or interest therein
without delivery of the
<PAGE>
-6-
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 J 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 J Certificate that is held as a Definitive Certificate, provide such
certifications as the Trustee may deem desirable or necessary in order to
establish that such transferee or the Person in whose name such registration is
requested is not a Plan or a Person who is directly or indirectly purchasing
such Certificate on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class J Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Class J Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer
<PAGE>
-7-
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.
LaSalle National Bank,
as Trustee
By:
----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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 K CERTIFICATE
CLASS K MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class
Lesser of 6.600% or the K Certificate as of the Issue Date:
Weighted Average Net Mortgage Rate $_____________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: September 1, 1997 Class K Certificates as of the Issue
Date: $33,944,278
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. K-__ CUSIP No. 361849 CF 7
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK 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.
<PAGE>
-2-
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H AND CLASS J
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE 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 SEPTEMBER 30, 1997. 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 $581.17 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE
YIELD TO MATURITY IS 16.427411% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $0.13 PER $1,000 OF INITIAL
<PAGE>
-3-
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-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H AND CLASS J CERTIFICATES OF THE SAME SERIES. IN ADDITION, 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 K Certificate (obtained by
dividing the principal balance of this Class K Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class K Certificates (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
K Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and LaSalle National Bank, 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 K 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 K Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on any Class K Certificate will be made by the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the Record Date for such
distribution (which
<PAGE>
-4-
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certifi cate 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
1997-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 K Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class K Certificates are exchangeable for new Class K Certifi cates 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
<PAGE>
-5-
or more new Class K Certificates in authorized denominations evidencing the
same aggregate Percentage Interest will be issued to the designated transferee
or transferees.
No transfer of any Class K Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer of any Class K Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws,
receipt by it and the Depositor of: (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 K Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of any Class K Certificate without registration or
qualification. Any Class K Certificateholder desiring to effect such a transfer
shall, and by the acceptance of its Class K Certificate agrees to, indemnify
the Depositor, the Trustee and the Certificate Registrar against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of a Class K 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 K
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.
<PAGE>
-6-
Each Person who acquires any Class K 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 K
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 K Certificate that is held as a Definitive Certificate,
provide such certifications as the Trustee may deem desirable or necessary in
order to establish that such transferee or the Person in whose name such
registration is requested is not a Plan or a Person who is directly or
indirectly purchasing such Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class K Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Class K Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
662/3% of the Voting Rights allocated to the affected
<PAGE>
-7-
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.
LaSalle National Bank,
as Trustee
By:
----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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-14
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: September 1, 1997 this Certificate in the related Class: ___%
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. R-I-__ CUSIP No.: ____________
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND
CLASS K CERTIFICATES OF THE SAME SERIES, AS AND TO THE
<PAGE>
-2-
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 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
<PAGE>
-3-
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, LaSalle National Bank, as Trustee and
ABN AMRO Bank N.V., as Fiscal Agent. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing upon the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(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. Notwith
standing 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 Certifi cate 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
1997-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
<PAGE>
-4-
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 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
<PAGE>
-5-
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), 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.
<PAGE>
-6-
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its Ownership Interest unless
it provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United States Person. Each Person holding or acquiring an Ownership
Interest in this Certificate, by purchasing such Ownership Interest herein,
agrees to give the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through
interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor,
to the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-I Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-I
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of
the United States, or any agency or instrumentality of any of the foregoing
(other than an instrumentality which is a corporation if all of its activities
are subject to tax and, except for FHLMC, a majority of its board of directors
is not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any 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
<PAGE>
-7-
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, an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust.
No service charge will be imposed for any registration of
transfer or exchange of Class R-I Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Class R-I Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage 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
<PAGE>
-8-
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 662/3% of the Voting Rights allocated to
the affected Classes. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain circumstances, including any amendment necessary to maintain the
status of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof,
agrees that it will look solely to the Trust Fund (to the extent of its rights
therein) for distributions hereunder.
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>
-9-
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed.
LaSalle National Bank,
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:
LaSalle National Bank,
as Certificate Registrar
By:
-----------------------
Authorized Officer
<PAGE>
-10-
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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-II CERTIFICATE
CLASS R-II MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: September 1, 1997 this Certificate in the related Class: ___%
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. R-II-__ CUSIP No.: ______________
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND
CLASS K CERTIFICATES OF THE SAME SERIES, AS AND TO THE
<PAGE>
-2-
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 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
<PAGE>
-3-
Servicer and Special Servicer, LaSalle National Bank, as Trustee and ABN AMRO
Bank N.V., as Fiscal Agent. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing upon the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(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. Notwith
standing 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 Certifi cate 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
1997-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
<PAGE>
-4-
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 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
<PAGE>
-5-
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 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
<PAGE>
-6-
Interest unless it provides to the Trustee a certificate substantially in the
form attached as Exhibit C-2 to the Agreement stating that, among other things,
it has no actual knowledge that such prospective Transferee is not a Permitted
Transferee or is not a United States Person. Each Person holding or acquiring
an Ownership Interest in this Certificate, by purchasing such Ownership
Interest herein, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such
Ownership Interest, if it is, or is holding such Ownership Interest on behalf
of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor,
to the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-II Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-II
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of
the United States, or any agency or instrumentality of any of the foregoing
(other than an instrumentality which is a corporation if all of its activities
are subject to tax and, except for FHLMC, a majority of its board of directors
is not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code and (v) any 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
<PAGE>
-7-
political subdivision thereof, an estate whose income from sources without the
United States is includable in gross income for United States federal income
tax purposes regardless of its connection with the conduct of a trade or
business within the United States, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States Persons have the authority to control all
substantial decisions of the trust.
No service charge will be imposed for any registration of
transfer or exchange of Class R-II Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Class R-II Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon
<PAGE>
-8-
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.
LaSalle National Bank,
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:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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-16
FORM OF CLASS R-III CERTIFICATE
CLASS R-III MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-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.
<TABLE>
<CAPTION>
<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: September 1, 1997 this Certificate in the related Class: ___%
Cut-off Date: September 1, 1997 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: September 30, 1997 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date,
October 15, 1997 whether or not received:
$1,696,984,278
Master Servicer and Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation LaSalle National Bank
Certificate No. R-III-__ CUSIP No.: _____________
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
LASALLE NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
X, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND
CLASS K CERTIFICATES OF THE SAME SERIES, AS AND TO THE
<PAGE>
-2-
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 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
<PAGE>
-3-
Servicer and Special Servicer, and LaSalle National Bank, as Trustee. To the
extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 15th day of each month or, if such 15th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"),
commencing upon the First Distribution Date specified 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
1997-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
<PAGE>
-4-
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 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
<PAGE>
-5-
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.
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.
<PAGE>
-6-
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest herein and (y) not to transfer its Ownership Interest unless
it provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United States Person. Each Person holding or acquiring an Ownership
Interest in this Certificate, by purchasing such Ownership Interest herein,
agrees to give the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through
interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee the following: (a) written notification from each Rating Agency
to the effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to withdraw, qualify or downgrade
its then-current rating of any Class of Certificates; and (b) an Opinion of
Counsel, in form and substance satisfactory to the Trustee and the Depositor,
to the effect that such modification of, addition to or elimination of such
provisions will not cause either REMIC I, REMIC II or REMIC III to (x) cease to
qualify as a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Class R-III Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R-III
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the
United States, any State or political subdivision thereof, any possession of
the United States, or any agency or instrumentality of any of the foregoing
(other than an instrumentality which is a corporation if all of its activities
are subject to tax and, except for FHLMC, a majority of its board of directors
is not selected by such governmental unit), (ii) a foreign 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.
<PAGE>
-7-
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, an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust.
No service charge will be imposed for any registration of
transfer or exchange of Class R-III Certificates, but the Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Class R-III Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or the Depositor at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor or the Master Servicer to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate
Cut-off Date Principal Balance of the Mortgage Pool specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
662/3% of the Voting Rights allocated to the affected Classes. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
<PAGE>
-8-
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.
LaSalle National Bank,
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:
LaSalle National Bank,
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 Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to the above named assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the issuance of a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Mortgage PassThrough 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 B-1
FORM I OF TRANSFEROR CERTIFICATE
_____________, 19__
LaSalle National Bank
Corporate Trust Office
135 S. LaSalle Street
Chicago, Illinois 60674-4107
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates Series 1997-C1, Class [G] [H] [J]
[K], having an initial principal balance as of ____________
___, 1997 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 September 1, 1997, among GMAC Commercial Mortgage Securities, Inc. as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee and ABN AMRO Bank, N.V., as Fiscal
Agent. All terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the 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.
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
<PAGE>
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;
(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. Unless the Transferee is an "accredited investor" within the
meaning of Rule 501(a) (1), (2), (3), or (7) that is furnishing a Transferee
Certificate in the form of Exhibit B-3 to the Pooling and Servicing Agreement,
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>
EXHIBIT B-2
FORM I OF TRANSFEREE CERTIFICATE
_____________, 19__
LaSalle National Bank
Corporate Trust Office
135 S. LaSalle Street
Chicago, Illinois 60674-4107
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1997-C1, Class [G]
[H] [J] [K], having an initial principal balance as
of _____________ ___, 1997 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 September 1, 1997, among GMAC Commercial Mortgage Securities, Inc., as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee and ABN AMRO Bank, N.V., as Fiscal
Agent. All terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The 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 Acknowledgment
below
4. If the Transferee proposes to acquire a Subordinated Certificate
that is held as a Definitive Certificate, the Transferee hereby certifies to
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
<PAGE>
-2-
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.
Very truly yours,
(Transferee)
By: ___________________
Name: _________________
Title: ________________
<PAGE>
-3-
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Certificate being registered in its name, the sole beneficial owner thereof is
and shall be _______________, the Transferee identified above, for whom the
undersigned is acting as nominee.
-------------------------------
(Nominee)
By: __________________________
Name: ________________________
Title: _______________________
<PAGE>
-4-
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 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
- --------------------
(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.
<PAGE>
-5-
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 participation, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee,
the Transferee did not include any of the securities referred to in this
paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities were
valued at market. Further, in determining such aggregate amount, the Transferee
may have included securities owned by subsidiaries of the Transferee, but only
if such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such subsidiaries are managed under the Transferee's
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the
Transferee is not itself a reporting company under the Securities Exchange Act
of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the 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.
________ _______ Will the Transferee be
purchasing the Certificate
Yes No 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.
<PAGE>
-6-
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
<PAGE>
-7-
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>
-8-
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 participation, (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>
-9-
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
_______ ________ Will the Transferee be
purchasing the Certificate
Yes No 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: ______________________________
Date: _______________________________
IF AN ADVISER: ______________________
Print Name of Transferee ____________
Date: _______________________________
<PAGE>
EXHIBIT B-3
FORM II OF TRANSFEREE CERTIFICATE
_____________, 19__
LaSalle National Bank
Corporate Trust Office
135 S. LaSalle Street
Chicago, Illinois 60674-4107
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1997-C1, Class [G] [H]
[J] [K], having an initial principal balance as of
___________ ___, 1997 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 September 1, 1997, among GMAC Commercial Mortgage
Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer and Special Servicer, LaSalle National Bank, as Trustee and ABN AMRO
Bank, N.V., as Fiscal Agent. All terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is 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, 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, OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION
<PAGE>
-2-
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.
7. If the Transferee proposes to acquire a Subordinated Certificate
that is held as a Definitive Certificate, the Transferee hereby certifies to
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.
Very truly yours,
-------------------------
(Transferee)
By: _____________________
<PAGE>
-3-
Name: _____________________
Title: ____________________
<PAGE>
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 1997- 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 non-Permitted Transferee, on the agent; (iii) that the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such Person an affidavit that the transferee is a
Permitted Transferee and, at the time of transfer, such Person does not have
actual knowledge that the affidavit is false; and (iv) that the Residual
Certificates may be a "noneconomic residual interest" within the meaning of
Treasury regulation Section 1.860E-1(c) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due with
respect to the income on such residual interest, unless no 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.)
<PAGE>
-2-
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.
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.
<PAGE>
-3-
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to the authority of its Board of
Directors, by its ____________________ and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this day of , ____.
-------------------------------
[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__.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 19__
LaSalle National Bank
Corporate Trust Office
135 S. LaSalle Street
Chicago, Illinois 60674-4107
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1997-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 September 1, 1997 (the "Pooling
and Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc., as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee and ABN AMRO Bank, N.V., as Fiscal
Agent. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor 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 continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
<PAGE>
4. The Transferee has no actual knowledge that such
prospective Transferee is not a Permitted Transferee or is not a United States
Person.
Very truly yours,
---------------------------
(Transferee)
By: ______________________
Name: ____________________
Title: ___________________
<PAGE>
EXHIBIT D
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
Borrower Name(s):
Reason for Document Request: (indicate one)
[ ] Mortgage Loan Prepaid in Full
[ ] Mortgage Loan Repurchased or Sold
[ ] Other (specify) ______________________
__________________________________________
__________________________________________
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
[GMAC COMMERCIAL MORTGAGE CORPORATION]
Authorized Signature
******************************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
<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>
EXHIBIT E
FORM OF UCC-1
<PAGE>
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>
EXHIBIT A OF SCHEDULE 1
All right (including the power to convey title thereto), title and
interest of the Debtor, including any security interest therein for the benefit
of the Debtor, in and to the Trust Fund created pursuant to the Pooling and
Servicing Agreement, dated as of September 1, 1997, among the Debtor as
Depositor, the Secured Party as Trustee*, ABN AMRO Bank N.V. as Fiscal Agent
and GMAC Commercial Mortgage Corporation as Master Servicer and Special
Servicer with respect to Mortgage Pass-Through Certificates, Series 1997-C1
(the "Pooling and Servicing Agreement (Series 1997-C1)"), including the:
(1) the Mortgage Loans listed on the Mortgage Loan Schedule attached
hereto;
(2) the Mortgage Notes, with respect to the Mortgage Loans listed on
the Mortgage Loan Schedule attached hereto;
(3) the Mortgages secured by such Mortgage Notes, as more particularly
described in the Mortgage Loan Schedule;
(4) with respect to each Mortgage Note and related Mortgage, each
document contained in the related Mortgage File;
(5) the Debtor's rights under Sections 2; 4(a) and 6 of each Mortgage
Loan Purchase Agreement and, to the extent it related 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:
(6) any and all general intangibles (as defined in the Uniform
Commercial Code) consisting of, arising from or relating to any of the
foregoing; and
(7) any and all income, payments, proceeds and products of any of the
foregoing.
Capitalized terms used herein, but not defined, shall have the
respective meanings assigned to such terms in the Pooling and Servicing
Agreement (Series 1997-C1).
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED
BY THE POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN,
WITH RESPECT TO THE MORTGAGE LOANS, THE MORTGAGE NOTES, THE RELATED MORTGAGES
AND THE RELATED MORTGAGE FILES, AND THIS FILING SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT A SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE
NOTES SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN
INSTRUMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN
ANY APPLICABLE JURISDICTION, OR THAT A FILING IS NECESSARY TO PERFECT THE
SECURITY INTEREST OF THE SECURED PARTY*, WITH RESPECT TO THE MORTGAGE LOANS, IN
ANY MORTGAGE NOTE, MORTGAGE OR DOCUMENT IN A MORTGAGE FILE. WITH RESPECT TO THE
FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY
THIRD PARTIES.
<PAGE>
-2-
*Not in its individual capacity, but solely as Trustee for the benefit
of the Certificateholders pursuant to the Pooling and Servicing Agreement
(Series 1997-C1).
<PAGE>
MORTGAGE LOAN SCHEDULE
<PAGE>
-2-
Exhibit F
Methodology to Normalize Net Operating Income and Debt Service Coverage
GMAC Commercial Mortgage Corporation (GMACCM) applies the methodology presented
below to arrive at a servicer adjusted or "Normalized" Net Operating Income
(NOI). The items described below highlight some of the majorcategories
requiring adjustment. There may, however, be others, and GMACCM will use its
market knowledge and discretion in making and sufficiently footnoting the
necessary adjustments.
o GMACCM chooses to use the actual management fee stated in the
financial statement.
o Where they are clearly identifiable, GMACCM will remove any capital
expense from any above the line categories (such as extraordinary
repairs and maintenance) and put them below the line in the capital
expense comment section.
o Replacement reserves, tenant improvement and leasing commission
reserves will be treated as above the line expenses. A determination
will be made whether there have been credits for the disbursements
from a reserve and that expenses are not overstated due to exclusion
of credits.
o Property taxes should be the annual amount due, excluding any
delinquent taxes or credits from prior years which would cause the
number to be higher or lower. The amount for property taxes will be
adjusted if the period under analysis is less than one year.
o GMAC Commercial Mortgage will exclude non-recurring, extraordinary
income. For example, a tax refund, lease buyout or income received for a
period other than the year in question should be adjusted. If past due
rent for a prior year was paid and recorded in the current year, GMACCM
would back it out and footnote it accordingly. Care will be used when
reflecting percentage/overage rents to ensure that it relates to the
appropriate period and that the numbers are supported by tenant sales
information.
o GMAC Commercial Mortgage will remove any items not pertaining to
the operation of the property such as, fees for closing the loan
restructure, a distribution to owners or a charitable contribution.
o When necessary, income and expenses will be analyzed by looking at
variances by category. Unusual income and expense items will be
researched. If there are significant variances, inquiries to the
borrower will be made. Appropriate adjustments will be made and
footnotes provided to clearly explain the situation.
o The debt service should be an actual amount the borrower paid per
the servicing records for the period associated with the operating
statement. If GMACCM does not have a full year of payments, it will use
the principal and interest constant in the case of a fixed rate loan
and, in the case of an adjustable rate loan, will estimate a full year
amount from the payment history information available.
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT G
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION, AS SPECIAL SERVICER Payment Date:
LASALLE NATIONAL BANK AS TRUSTEE Record Date:
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
Reporting Package Contents
Number of Pages Description
--------------- -----------
<S> <C> <C>
Table of Contents 1 Summary of Reports
REMIC Certificate Report 1 Payment information by Certificate Class
Other Related Information 2 Miscellaneous reporting items as per pooling agreement
Delinquency/Prepayment/Rate History Report 1 Rolling 15 months of summarized information
Delinquency Detail Report 1 Detail listing of all loans not paid through the most
recent payment due date
Mortgage Loan Stratification Report 1 Update of selected stratification tables for all
outstanding loans and loan groups
Loan Level Detail Listing 1 Current status of all loans assigned to the trust on
the Closing Date
Total pages included in this package 8
Appendix A -- Special Servicing Summary 1 Current summary information regarding loans now
specially serviced
Appendix B -- Special Servicing Detail 1 Current detail information regarding loans now
specially serviced
Appendix C -- Loan Modification Detail 1 Cumulative list of all loan modifications executed
since the Closing Date
Appendix D -- Realized Loss Detail 1 Cumulative list of all loans experiencing realized
losses since the Closing Date
</TABLE>
B-1
<PAGE>
<TABLE>
<CAPTION>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Payment Date:
GERMAN AMERICAN CAPITAL CORPORATION, A MORTGAGE LOAN SELLER Prior Payment:
LASALLE NATIONAL BANK, AS TRUSTEE Record Date:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
Original Opening Principal Principal Negative Closing Interest Interest Prepayment Pass-Through
Class Face Value Balance Payment Adj. Or Loss Amortization Balance Payment Adjustment Penalties Rate
CUSIP Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Next Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
TOTAL P&I PAYMENT
B-2
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
GERMAN AMERICAN CAPITAL CORPORATION, A MORTGAGE LOAN SELLER Prior Payment:
LASALLE NATIONAL BANK, AS TRUSTEE Record Date:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
</TABLE>
OTHER RELATED INFORMATION
Servicing Fees
Servicing Fees per $1,000
Special Servicing Fees
Special Servicing Fees per $1,000
Interest Shortfall
Aggregate Advance Reconciliation (Table)
Prepayment Penalty Collections
B-3
<PAGE>
<TABLE>
<CAPTION>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
GERMAN AMERICAN CAPITAL CORPORATION, A MORTGAGE LOAN SELLER Prior Payment:
LASALLE NATIONAL BANK, AS TRUSTEE Record Date:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
<S> <C>
OTHER RELATED INFORMATION
ASER Loan and Aggregate Information
SER Information:
Controlling Class/Operating Advisor Information
Class Determination Balance, etc.
</TABLE>
B-4
<PAGE>
<TABLE>
<CAPTION>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
GERMAN AMERICAN CAPITAL CORPORATION, A MORTGAGE LOAN SELLER Prior Payment:
LASALLE NATIONAL BANK, AS TRUSTEE Record Date:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
DELINQUENCY/PREPAYMENT/RATE HISTORY REPORTING
<S> <C> <C> <C> <C> <C> <C> <C>
Determ. Delinqt1 Month Delinq 2 Months Delinq 3+ Months Foreclosure/Bankruptcy Modifications Prepayments New Weighted Avg.
Date # Balance # Balance # Balance # Balance # Balance # Balance Coupon Remit
</TABLE>
B-5
<PAGE>
<TABLE>
<CAPTION>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
GERMAN AMERICAN CAPITAL CORPORATION, A MORTGAGE LOAN SELLER Prior Payment:
LASALLE NATIONAL BANK, AS TRUSTEE Record Date:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
DELINQUENCY LOAN DETAIL
Outstanding
Offering Current Outstanding Property
Circular Loan Paid Thru P&I P&I Protection
Control # Group Period Date Advance Advances* Advances
<S> <C> <C> <C> <C> <C> <C>
TOTALS:
</TABLE>
(RESTUBBED TABLE FROM ABOVE)
<TABLE>
<CAPTION>
Special
Offering Advance Loan Servicer
Circular Description Status Transfer Foreclosure Bankruptcy REO
Control # -1 -2 Date Date Date Date
<S> <C> <C> <C> <C> <C> <C>
TOTALS:
(1) Advance Description
0. P&I Advance -- Late Payment but < one month delinquent (2) Loan Status 1. Specially Serviced 6. DPO
1. P&I Advance -- Loan delinquent 1 month 2. Foreclosure 7. Foreclosure Sale
2. P&I Advance -- Loan Delinquent 2 months 3. Bankruptcy 8. Bankruptcy Sale
3. P&I Advance -- Loan delinquent 3 months or more 4. REO 9. REO Disposition
4. P&I Advance -- Loan in Grace Period 5. Prepay in Full 10. Modification/Workout
</TABLE>
B-6
<PAGE>
<TABLE>
<CAPTION>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
GERMAN AMERICAN CAPITAL CORPORATION, A MORTGAGE LOAN SELLER Prior Payment:
LASALLE NATIONAL BANK, AS TRUSTEE Record Date:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
MORTGAGE LOAN STRATIFICATION REPORT
Updated Collateral Tables as they appear in Prospectus
<S> <C>
</TABLE>
B-7
<PAGE>
<TABLE>
<CAPTION>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
GERMAN AMERICAN CAPITAL CORPORATION, A MORTGAGE LOAN SELLER Prior Payment:
LASALLE NATIONAL BANK, AS TRUSTEE Record Date:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
LOAN LEVEL DETAIL
Special
Offering Servicer Neg Beginning
Circular GRP Property Transfer Maturity AM Scheduled Note
Control # ID Type Date State Date (Y/N) Balance Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
(RESTUBBED TABLE FROM ABOVE)
<TABLE>
<CAPTION>
Scheduled Paid Prepayment
Principal Prepayments / Prepayment Through Premium Loan
Payment Liquidations Date Date Amount Status (*)
<S> <C> <C> <C> <C> <C>
(*) Legend 1)Specially Serviced 4)REO 7)Foreclosure Sale 10)Modification/Workout
2)Foreclosure 5)Prepay in Full 8)Bankruptcy Sale
3)Bankruptcy 6)DPO 9)REO Disposition
</TABLE>
B-8
<PAGE>
<TABLE>
<CAPTION>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
GERMAN AMERICAN CAPITAL CORPORATION, A MORTGAGE LOAN SELLER Prior Payment:
LASALLE NATIONAL BANK, AS TRUSTEE Record Date:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
SPECIALLY SERVICED LOAN SUMMARY
Number of Loans as of the Closing Date
Principal Balance as of the Closing Date
Current Number of Loans
Current Outstanding Principal Balance
<S> <C>
Current Number of Specially Serviced Loans 0
Current Outstanding Principal Balance of Specially Serviced Loans $0
Percent of Specially Serviced Loans (per Current Number of Loans) 0
Percent of Specially Serviced Loans (per Current Outstanding Principal Balance) 0
</TABLE>
<TABLE>
<CAPTION>
Current Current
Principal Principal
Current Balance as a % Balance as a %
Number of Initial Principal Principal of Specially of Total Pool
SPECIALLY SERVICED LOAN STATUS Loans Balance Balance Serviced Loans Balance
<S> <C> <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
6) Loans now REO Property
7) Loans Paid Off
8) Loans Returned to Master Servicer
Total 0.00 0.00 0.00
</TABLE>
B-9
<PAGE>
<TABLE>
<CAPTION>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
GERMAN AMERICAN CAPITAL CORPORATION, A MORTGAGE LOAN SELLER Prior Payment:
LASALLE NATIONAL BANK, AS TRUSTEE Record Date:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
SPECIALLY SERVICED LOAN DETAIL
Special Debt Specially
Offering Servicer Sched Sched Net Service Serviced
Circular Transfer Principal Interest Maturity Property Operating Coverage Status
Control # Date Balance Rate Date Type State Income NOI Date Ratio Code*
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(*) Legend 1) Request for waiver of Prepayment Penalty 4) Loans with Borrower Bankruptcy 7) Loan Paid Off
2) Payment of Default 5) Loans in Process of Foreclosure 8) Loans Returned to Master Servicer
3) Request for Loan Modification or Workout 6) Loans now REO Property
</TABLE>
B-10
<PAGE>
<TABLE>
<CAPTION>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
GERMAN AMERICAN CAPITAL CORPORATION, A MORTGAGE LOAN SELLER Prior Payment:
LASALLE NATIONAL BANK, AS TRUSTEE Record Date:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
MODIFIED LOAN DETAIL
Offering
Modification Circular Modification Modification
Date Control # Date Description
<S> <C> <C> <C>
</TABLE>
B-11
<PAGE>
<TABLE>
<CAPTION>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
LASALLE NATIONAL BANK, AS TRUSTEE Prior Payment:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Record Date:
SERIES 1997-C1
REALIZED LOSS DETAIL
Gross Net
Appraisal Proceeds Proceeds
Offering Value/ Sched as a % of Aggregate Net as a % of Current
Distribution Circular Appraisal Brokers Principal Gross Sched Liquidation Liquidation Sched Realized
Date Control # Date Estimate Balance Proceeds Principal Expenses* Proceeds Balance Loss
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Current Total 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Cumulative 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
*Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid special servicing fees, unpaid trustee fees, etc.
B-12
<PAGE>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER
LASALLE NATIONAL BANK AS TRUSTEE
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
REO STATUS REPORT
<TABLE>
<CAPTION>
OFFERING REO
CIRCULAR CONVERSION PROPERTY
CONTROL # DATE TYPE STATE
- ------------- -------------- ------------ ---------
<S> <C> <C> <C>
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
OFFERING REO NET INCOME/ NET INCOME
CIRCULAR APPRAISED REO RECEIPTS COLLECTED AVAILABLE FOR
CONTROL # VALUE BOOK VALUE CURRENT PERIOD DISTRIBUTION
- ------------- ------------- -------------- ---------------------- -----------------
<S> <C> <C> <C> <C>
</TABLE>
B-13
<PAGE>
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1
COMPARITIVE FINANCIAL STATUS REPORT
AS OF ______________
<TABLE>
<CAPTION>
ORIGINAL UNDERWRITING INFORMATION
BASIS YEAR
LAST
PROPERTY PAID ANNUAL FINANCIAL
PROSPECTUS INSPECT SCHEDULED THRU DEBT INFO AS OF % TOTAL %
ID CITY STATE DATE LOAN BALANCE DATE SERVICE DATE OCC REVENUE NOI DSCR
YY/MM YY/MM
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
List all loans currently in deal with or with out information largest to smallest loan
TOTAL: $ $ WA $ $ WA
RECEIVED
FINANCIAL INFORMATION: LOANS BALANCE
# % $ %
CURRENT FULL YEAR
CURRENT FULL YR. RECEIVED WITH DSC <1:
PRIOR FULL YEAR:
PRIOR FULL YR. RECEIVED WITH DSC <1:
QUARTERLY FINANCIALS:
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
2ND PRECEEDING ANNUAL OPERATING INFORMATION PRECEEDING ANNUAL OPERATION INFORMATION
AS OF _________ NORMALIZED AS OF ___________ NORMALIZED
FINANCIAL FINANCIAL
INFO AS OF % TOTAL $ INFO AS OF % TOTAL $
DATE OCC REVENUE NOI DSCR DATE OCC REVENUE NOI DSCR
YY/MM YY/MM
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
WA $ $ WA WA $ $ WA
REQUIRED REQUIRED
LOANS BALANCE LOANS BALANCE
# % $ % # % $ %
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
YTD OR TRAILLING FINANCIAL INFORMATION NET CHANGE
MONTH REPORTED ACTUAL PRECEEDING & BASIS
%
FS START FS END TOTAL $ $ % TOTAL
DATE DATE REVENUE NOI DSC OCC REV DSC
YY/MM YY/MM
<S> <C> <C> <C> <C> <C> <C> <C>
WA $ $ WA WA $ WA
</TABLE>
B-14
<PAGE>
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1
OPERATING STATEMENT ANALYSIS REPORT
AS OF ____________
<TABLE>
<CAPTION>
PROPERTY OVERVIEW
<S> <C> <C> <C> <C> <C> <C> <C>
LB Control Number
Current Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations UNDERWRITING 1993 1994 1995 YTD
Occupancy Rate *
Average Rental Rate
* OCCUPANCY RATES ARE YEAR END OR THE ENDING DATE OF THE FINANCIAL STATEMENT FOR THE PERIOD.
INCOME: NO. OF MOS.
Number of Mos. Annualized PRIOR YEAR CURRENT YR.
Period Ended UNDERWRITING 1993 1994 1995 1996 YTD** 1995-BASE 1995-1994
Statement ClBasefLineion BASE LINE NORMALIZED NORMALIZED NORMALIZED AS OF / /96 VARIANCE VARIANCE
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Through/Escalations
Other Income
EFFECTIVE GROSS INCOME $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
NORMALIZED - FULL YEAR FINANCIAL STATEMENTS THAT HAVE BEEN REVIEWED BY THE UNDERWRITER OR
SERVICER
** SERVICER WILL NOT BE EXPECTED TO "NORMALIZE" THESE YTD NUMBERS.
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES $0.00 $0.00 $0.00 $0.00 $0.00 % %
OPERATING EXPENSE RATIO
NET OPERATING INCOME $0.00 $0.00 $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
TOTAL CAPITAL ITEMS $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
N.O.I. AFTER CAPITAL ITEMS $0.00 $0.00 $0.00 $0.00 $0.00
DEBT SERVICE (PER SERVICER) $0.00 $0.00 $0.00 $0.00 $0.00
CASH FLOW AFTER DEBT SERVICE $0.00 $0.00 $0.00 $0.00 $0.00
(1) DSCR: (NOI/DEBT SERVICE)
DSCR: (AFTER RESERVES\CAP EXP.)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
NOTES AND ASSUMPTIONS:
The years shown above will roll always showing a three year history. 1995 is the current year financials; 1994 is the prior year
financials.
This report may vary depending on the property type and because of the way information may vary in each borrowers statement.
Rental Income need to be broken down whenever possible differently for each property type as follows: Retail: 1) Base Rent
2)Percentage rents on cashflow Hotel: 1)Room Revenue 2)Food/Beverage Nursing Home: 1)Private 2) Medicaid 3) Medicare
INCOME: COMMENT
EXPENSE: COMMENT
CAPITAL ITEMS: COMMENT
(1) Used in the Comparative Financial Status Report
</TABLE>
B-15
<PAGE>
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1
NOI ADJUSTMENT WORKSHEET FOR "YEAR"
AS OF ____________
<TABLE>
<CAPTION>
<S> <C> <C> <C>
PROPERTY OVERVIEW
LB Control Number
Current Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations BORROWER ADJUSTMENT NORMALIZED
Occupancy Rate *
Average Rental Rate
* Occupancy rates are year end or the ending date of the financial statement for the period.
INCOME:
Number of M"Year"ualized
Period Ended BORROWER ADJUSTMENT NORMALIZED
Statement Classification ACTUAL
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Throughs/Escalations
Other Income
EFFECTIVE GROSS INCOME $0.00 $0.00 $0.00
Normalized - Full year Financial statements that have been reviewed by the underwriter or Servicer
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES $0.00 $0.00 $0.00
OPERATING EXPENSE RATIO
NET OPERATING INCOME $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
TOTAL CAPITAL ITEMS $0.00 $0.00 $0.00
N.O.I. AFTER CAPITAL ITEMS $0.00 $0.00 $0.00
DEBT SERVICE (PER SERVICER) $0.00 $0.00 $0.00
CASH FLOW AFTER DEBT SERVICE $0.00 $0.00 $0.00
(1)DSCR: (NOI/DEBT SERVICE)
DSCR: (AFTER RESERVES\CAP EXP.)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS:
This report should be completed by the Servicer for any "Normalization" of the
Borrowers numbers.
The "Normalized" column is used in the Operating Statement Analysis Report.
This report may vary depending on the property type and because of the way
information may vary in each borrowers statement.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
(1) Used in the Comparative Financial Status Report
B-16
<PAGE>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
LASALLE NATIONAL BANK AS TRUSTEE Prior Payment:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Record Date:
SERIES 1997-C1
REO STATUS REPORT
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
Offering REO REO Net Income/ Net Income
Circular Conversion Property Appraised REO Receipts Collected Available for
Control # Date Type State Value Book Value Current Period Distribution
</TABLE>
<PAGE>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER
LASALLE NATIONAL BANK AS TRUSTEE
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
DELINQUENCY LOAN DETAIL
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
Offering Net Current Outstanding
Circular Loan Mortgage Loan Paid Through P&I P&I
Control# Group Period Rate Balance Date Advance Advances
TOTALS:
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
Outstanding Special
Offering Property Advance Loan Servicer
Circular Protection Description Status Transfer Foreclosure Bankruptcy REO
Control# Advances (1) (2) Date Date Date Date
</TABLE>
(1) Advance Description 0. P&I Advance -Late Payment but less than 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
2. Foreclosure
3. Bankruptcy
4. REO
5. Prepay in Full
6. DPO
7. Foreclosure Sale
8. Bankruptcy Sale
9. REO Disposition
10. Modification / Workout
<PAGE>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
LASALLE NATIONAL BANK AS TRUSTEE Prior Payment:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Record Date:
SERIES 1997-C1
SPECIALLY SERVICED LOAN SUMMARY
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 0
Current Outstanding Principal Balance of Specially Serviced Loans $0
Percent of Specially Serviced Loans (per Current Number of Loans) 0
Percent of Specially Serviced Loans (per Current Outstanding Principal
Balance) 0
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Current Current
Principal Principal
Current Balance as a % Balance as a %
Number of Initial Principal Principal of Specially of Total Pool
SPECIALLY SERVICED LOAN STATUS Loans Balance Balance Serviced Loans Balance
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 0.00 0.00 0.00
</TABLE>
<PAGE>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
LASALLE NATIONAL BANK AS TRUSTEE Prior Payment:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Record Date:
SERIES 1997-C1
REALIZED LOSS DETAIL
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Gross Net
Appraisal Proceeds Proceeds
Offering Value/ Sched as a % of Aggregate Net as a % of Current
Distribution Circular Appraisal Brokers Principal Gross Sched Liquidation Liquidation Sched Realized
Date Control # Date Estimate Balance Proceeds Principal Expenses * Proceeds Balance Loss
Current Total 0.00 0.00 0.00 0.00 0.00 0.00
Cumulative 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid special servicing fees, unpaid trustee fees,
etc.
<PAGE>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
LASALLE NATIONAL BANK AS TRUSTEE Prior Payment:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Record Date:
SERIES 1997-C1
MODIFIED LOAN DETAIL
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Net Offering
Modification Loan Mortgage Circular Modification
Date Balance Rate Control # Description
</TABLE>
<PAGE>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER Statement Date:
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER Payment Date:
LASALLE NATIONAL BANK AS TRUSTEE Prior Payment:
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Record Date:
SERIES 1997-C1
<TABLE>
<CAPTION>
DELINQUENCY / PREPAYMENT / RATE HISTORY REPORTING
<S> <C> <C> <C> <C>
Determ. Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure/Bankruptcy
Date # Balance # Balance # Balance # Balance
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Determ. REO Modifications Prepayments Net Weighted Avg.
Date # Balance # Balance # Balance Coupon Remit
</TABLE>
<PAGE>
GMAC COMMERCIAL MORTGAGE CORPORATION AS MASTER SERVICER
GMAC COMMERCIAL MORTGAGE CORPORATION AS SPECIAL SERVICER
LASALLE NATIONAL BANK AS TRUSTEE
GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
SPECIALLY SERVICED LOAN DETAIL
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Special
Offering Servicer Sched Sched
Circular Transfer Principal Interest Maturity Property
Control # Date Balance Rate Date Type
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Debt Specially
Offering Net Service Serviced
Circular Operating Coverage Status
Control # State Income NOI Date Ratio Code*
</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>
EXHIBIT I
CERTAIN REPORTS
<PAGE>
GMAC Commercial Mortgage Pass-Through Certificates
Series 1997-C 1
OPERATING STATEMENT ANALYSIS REPORT
as of __________________
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
LB Control Number
Current Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Underwriting 1993 1994 1995 YTD
Occupancy Rate *
Average Rental Rate
* Occupancy rates are year end or the ending date of the financial statement for the period.
INCOME: No. of Mos.
Number of Mos. Annualized Prior Year Current Yr.
Period Ended Underwriting 1993 1994 1995 1996 YTD** 1995-Base 1995-1994
Statement Classification Base Line Normalized Normalized Normalized as of / /96 Variance Variance
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Through/Escalations
Other Income
EFFECTIVE GROSS INCOME $0.00 $0.00 $0.00 $0.00 $0.00 % %
Normalized -Full year Financial statements that have been reviewed by the underwriter or
Servicer
** Servicer will not be expected to "Normalize" these YTD numbers.
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES $0.00 $0.00 $0.00 $0.00 $0.00 % %
OPERATING EXPENSE RATIO
NET OPERATING INCOME $0.00 $0.00 $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
TOTAL CAPITAL ITEMS $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
N.O.I. AFTER CAPITAL ITEMS $0.00 $0.00 $0.00 $0.00 $0.00
DEBT SERVICE (PER SERVICER) $0.00 $0.00 $0.00 $0.00 $0.00
CASH FLOW AFTER DEBT SERVICE $0.00 $0.00 $0.00 $0.00 $0.00
(1) DSCR: (NOI/DEBT SERVICE)
DSCR: (AFTER RESERVES/
CAP EXP.)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS:
The years shown above will roll always showing a three year history. 1995 is
the current year financials; 1994 is the prior year financials.
This report may vary depending on the property type and because of the way
information may vary in each borrowers statement.
Rental Income need to be broken down whenever possible differently for each
property type as follows: Retail: 1) Base Rent 2)Percentage rents on cashflow
Hotel: 1)Room Revenue 2)Food/Beverage Nursing Home: 1)Private 2) Medicaid 3)
Medicare 2)Percentage rents on cash flow Hotel: 1)Room Revenue 2)Food/Beverage
Nursing Home: 1)Private 2) Medicaid 3) Medicare
INCOME: COMMENT
EXPENSE: COMMENT
CAPITAL ITEMS: COMMENT
(1) Used in the Comparative Financial Status Report Quarterly
<PAGE>
GMAC Commercial Mortgage Pass-Through Certificates
Series 1997-C 1
NOI ADJUSTMENT WORKSHEET FOR "YEAR"
as of __________________
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
LB Control Number
Current Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Borrower Adjustment Normalized
Occupancy Rate *
Average Rental Rate
* Occupancy rates are year end or the ending date of the financial
statement for the period.
INCOME:
Number of Mos.Annualized Year
Period Ended Borrower Adjustment Normalized
Statement Classification Actual
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Throughs/Escalations
Other Income
EFFECTIVE GROSS INCOME $0.00 $0.00 $0.00
Normalized -Full year Financial statements that have been reviewed by the
underwriter or Servicer
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES $0.00 $0.00 $0.00
OPERATING EXPENSE RATIO
NET OPERATING INCOME $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
TOTAL CAPITAL ITEMS $0.00 $0.00 $0.00
N.O.I. AFTER CAPITAL ITEMS $0.00 $0.00 $0.00
DEBT SERVICE (PER SERVICER) $0.00 $0.00 $0.00
CASH FLOW AFTER DEBT SERVICE $0.00 $0.00 $0.00
(1)DSCR: (NOI/DEBT SERVICE)
DSCR: (AFTER RESERVES/CAP EXP.)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
</TABLE>
<PAGE>
GMAC Commercial Mortgage Pass-Through Certificates
Series 1997-C1
COMPARATIVE FINANCIAL STATUS REPORT
as of _________________
<TABLE>
<CAPTION>
ORIGINAL UNDERWRITING INFORMATION
---------------------------------------------
BASIS YEAR
------------
Last
Property Paid Annual Financial
Prospectus Inspect Scheduled Thru Debt Info As of % Total $
ID City State Date Loan Balance Date Service Date Occ Revenue NOI DSCR
-- ---- ----- ---- ------------ ---- ------- ---------- --- ------- --- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yy/mm yy/mm
List all loans currently in deal with or without information largest to smallest loan
Total $ $ WA $ $ WA
==================================================================================================================================
RECEIVED
-------------------
FINANCIAL INFORMATION: LOANS BALANCE
------------------- ---------------
# % $ %
---------- ------- --------- ----
CURRENT FULL YEAR:
CURRENT FULL YR. RECEIVED WITH DSC (LESS THAN) 1:
PRIOR FULL YEAR:
PRIOR FULL YR. RECEIVED WITH DSC (LESS THAN) 1:
QUARTERLY FINANCIALS:
</TABLE>
<TABLE>
<CAPTION>
2ND PRECEDING ANNUAL OPERATING INFORMATION PRECEDING ANNUAL OPERATING INFORMATION
- ------------------------------------------------------------ -----------------------------------------------------------
AS OF _______ NORMALIZED AS OF _______ NORMALIZED
- --------------------------- ---------------- ------------------------- -----------------
Financial Financial
Info As of % Total $ Info As of % Total $
Date Occ Revenue NOI DSCR Date Occ Revenue NOI DSCR
- ----------- ------------ ------- ------- ------ ----------- -------- --------- ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yy/mm yy/mm
WA $ $ WA WA $ $ WA
===================================================================================================================================
REQUIRED
-----------------------------------
LOANS BALANCE
------------------- ---------------
# % $ %
---------- ------- --------- ----
===================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
LOAN CONTROL LOAN
SOURCE NUMBER NUMBER PROPERTY NAME ADDRESS
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
<S> <C> <C> <C> <C>
GACC 1 LM9703 Crossroads Tower 80-20 Kew Gardens Road
GACC 2 GA0089 Circuit City HQ (Deep Run III) 9954 Mayland Drive
GACC 3 HC9701 Aggregate Loan Level Information Various
GACC 3A HC9701A Westside Multi-Care Center 349 Bidwell Street
GACC 3B HC9701B Bidwell Healthcare Center 333 Bidwell Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 3C HC9701C Victorian Heights Health Care 341 Bidwell Street
GACC 3D HC9701D Silver Springs Nursing Center 33 Roy Street
GACC 3E HC9701E Park Manor Nursing Home 1312 West Main Street
GACC 3F HC9701F Care Manor of Farmington 20 Scott Swamp Road
GACC 4 TA0300 Gateway Industrial Center 12601 Southfield Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 5 GMAC3010 Amboy Care Center, Rosewood Manor and Teaneck Various
Nurs
GMAC 5A GMAC3010A Amboy Care Center One Lindberg Avenue
GMAC 5B GMAC3010B Rosewood Manor Route 38 and Mill Road
GMAC 5C GMAC3010C Teaneck Nursing Center 1104 Teaneck Road
GACC 6 TA0070 215 Park Avenue South 215 Park Avenue South
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 7 GMAC3360 Hartford Marriott Farmington 15 Farm Springs Road
GMAC 8 GMAC1660 Franklin Commons Apartments 1745 Park Avenue
Paul Revere 9 989996 Fairfield Place Shopping Center NEC Route 100 & Swedesford Rd.
GACC 10 TA0331 Highland Glen & Highland Ridge 12601/12701 N. Pennsylvania
GACC 11 TA0412 Northville Centre 17101-17899 Haggerty Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 12 GMAC1410 Holtze Executive Place 818 17th Street
GMAC 13 GMAC3020 Capital, Parkview and Manahawkin Rollup Various
GMAC 13A GMAC3020A Manahawkin Convalescent Center 1211 Route 72 West
GMAC 13B GMAC3020B Parkview Healthcare Center 201 Fifth Avenue
GMAC 13C GMAC3020C Capital Nursing Center 439 Bellevue Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 14 GMAC3030 Continental Plaza 591 and 601 North Seventh Street
Conti 15 MP-1001 Central Valley Plaza Shopping Center 2225 Plaza Parkway
Paul Revere 16 989992 & 989993 Aggregate Loan Level Information Various
Paul Revere 16A 989992 & 989993A 2400 Internationale Parkway 2400 Internationale Pkwy
Paul Revere 16B 989992 & 989993B 1200 Internationale Parkway 1200 Internationale Parkway
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Paul Revere 16C 989992 & 989993C 2401 Internationale Parkway 2401 Internationale Parkway
Paul Revere 16D 989992 & 989993D 2300 Internationale Parkway 2300 Internationale Parkway
Paul Revere 17 999904 Olympia House 279 E. 44th Street
GACC 18 TA0738 1050 17th Street NW 1050 17th Street NW
Conti 19 97-LO16 Encino Town Center 17130-17240 Ventura Blvd
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 20 TA0011 Embassy Tower Apartments 154 West 70th Street
GMAC 21 GMAC3050 Farmer's Market III Office Building 1727 30th Street
GMAC 22 GMAC1180 369 Lexington Avenue 369 Lexington Avenue
GMAC 23 GMAC3470 Hillsdale Manor Care Center 2883 South Norfolk Street
Paul Revere 24 989987 The Atriums Retirement Center 7300 West 107th. Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 25 GMAC1270 Holiday Inn Arlington At Ballston 4610 North Fairfax Drive
GACC 26 TA0576 Shelbourne Square Shop Center 5400-5580 Perkiomen Avenue
Boston Capital 27 2359 1400 Marina Way South 1387-1401 & 1400-1402 Marina Way
South
Conti 28 9610065 Winsom Village (Mt. Clemens MHP)/Mobiland 23680 Sandpiper Drive
Meadow
GACC 29 TA0292 Condyne Freezers, Inc. 55 Murphy Drive
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 30 9610053 Sunset Village 2450 Waukegan Road
Conti 31 25008 Aggregate Loan Level Information Various
Conti 31A 25008A University Office Plaza I 3635 Mercerville-Quakerbridge
Road
Conti 31B 25008B University Office Plaza II 3507 Mercerville-Quakerbridge
Road
GACC 32 TA0535 Mount Pocono Plaza 601 Route 940
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Paul Revere 33 999969 Shoprite/Grade-A Plaza 360 Connecticut Avenue
Paul Revere 34 989984 Eastgate Pavilion 650 Eastgate Blvd.
GACC 35 TA1295 Monticello West 5114 McKinney Avenue
GACC 36 GA0112 Builders Square #1310 Western Plaza, St. Rd No. 2
GACC 37 TA0511 Vineyard Valley Center 16989-17089 Valley Blvd.
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 38 GA0090 CarMax 3100 Mount Zion Parkway
Paul Revere 39 999902 Avon Marketplace 380 West Main Street
GACC 40 TA1026 Memorial Club Apartments 904 & 955 Westcott Street
GACC 41 TA0739 2201 Wisconsin Avenue, NW 2201 Wisconsin Avenue, NW
Conti 42 96-LO28 Cornerstone of Bethesda 6702-6800 Wisconsin Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 43 GMAC1130 Holiday Inn Fishkill 2511 Route 9
Paul Revere 44 989995 Shoppes at Longwood Village U.S. Rte 1 at Bayard Road
GACC 45 TA0832 Montara Meadows 3150 East Tropicana Avenue
GMAC 46 GMAC3480 Carlyle Suites Hotel 1731 New Hampshire Avenue, N.W.
GACC 47 GA0091 CarMax 13100 Gulf Freeway
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 48 GMAC1030 King George Hotel 334 Mason Street
Conti 49 9410201 Mini Max Self-Storage 3951 Murphy Canyon Road
Boston Capital 50 1713 Armstrong Building 150 N. Queen Street
Paul Revere 51 999903 Aggregate Loan Level Information Various
Paul Revere 51A 999903A Hale Road Plaza 120 Hale Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
<PAGE>
Paul Revere 51B 999903B 91 Prestige Park Circle 91 Prestige Park Circle
Paul Revere 52 999914 U.S. Airports Air Cargo Facility 250 U S Airports Way
GACC 53 GA0111 K-Mart #7665 State Road No. 3 & PR 874
GACC 54 GA0110 Builders Square #1002 State Road No. 3 & PR 874
Boston Capital 55 2178 Del Mar Heights Village 2602-2690 Del Mar Heights Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 56 GMAC3490 Savoy Suites Georgetown Hotel 2505 Wisconsin Avenue, NW
GACC 57 GA0092 CarMax 16110 North Freeway
GACC 58 TA0109 Best Western Rio Grande Inn 400 East Second Avenue
GACC 59 GA9701 The Hit Factory 421-429 West 54th Street
GACC 60 TA0813 Victoria Woods Apartments 9601 Ashton Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 61 9510165 Maple Tree Inn 711 East El Camino Real
GMAC 62 GMAC3090 Apple Apartments 1334 West Foothill Boulevard
Boston Capital 63 2336 Three Westec Industrial Bldg. 34 St Martin Drive
Paul Revere 64 999934 Ideal Professional Park 2333 Morris Avenue
Boston Capital 65 1380 Camelback Plaza 2621 E. Camelback Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 66 96-LO26 Fieldcrest Walk Apartments 10238 Fieldcrest Drive
GMAC 67 GMAC1040 Denville Technical Center 66, 94, 96, 98 & 100 Ford Road
Conti 68 9510115 Yorba Linda Station Plaza NWC Yorba Linda Blvd. & Imperial
Hwy.
Paul Revere 69 999900 Tremont Square Shopping Center NW 64th. Street & North Chatham
GACC 70 TA0004 Kroger Citi-Center 2685 Stewart Avenue, SE
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 71 GMAC1280 Residence Inn by Marriott -San Antonio 1014 NE Loop 410
Boston Capital 72 1792 Blackstone Office Centre 1777 & 1797 NE Expressway
GACC 73 TA0838 Woodlands Village 1055 301 Blvd. East
GACC 74 TA0106 Aggregate Loan Level Information Various
GACC 74A TA0106A 89-95 Wayne Street 89-95 Wayne Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 74B TA0106B 213 Washington St.(99 Sussex) 213 Washington Street
GACC 74C TA0106C 199-201 Warren Street 199-201 Warren Street
GACC 74D TA0106D Bergenwood Commons 4306-4313 Smith Avenue
GACC 74E TA0106E 112 Sussex Street 112 Sussex Street
GACC 74F TA0106F 492-500 Jersey Avenue 492-500 Jersey Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 74G TA0106G 211 Washington Street 211 Washington Street
GACC 74H TA0106H 512-514 Jersey Avenue 512-514 Jersey Avenue
GMAC 75 GMAC1200 Techmedia Computer Systems 7301 Orangewood Avenue
Paul Revere 76 999968 Four Park Avenue 4 Park Ave.
Conti 77 LMA97-2H Holiday Inn -Bossier City 2015 Old Minden Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Paul Revere 78 999916 Norstar Apartments 4784 Norstar Boulevard
Paul Revere 79 381540 Price Chopper-Albany 911 Central Avenue
GACC 80 TA0281 Meadowrun Apartments 2294 Zink Road
Conti 81 9510138 La Mesa Village Plaza 4700 Spring Street,
8100/8130/8170/8200 La Mesa Bl
Paul Revere 82 172791 Circuit City-Countryside 9950 Joliet Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 83 9610061 Shortridge Village MHP 7441 Chinook Circle
GMAC 84 GMAC1390 Columbia Business Center 840-850-860-890-910 East Stowell
Road
Paul Revere 85 999915 Aggregate Loan Level Information Various
Paul Revere 85A 999915A Hudson Woods (Phase I) 1930 Robinwood Road
Paul Revere 85B 999915B The Woodlands 6401 Woodbend Drive
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 86 GMAC3100 Hollywood Place Apartments 7400 Hollywood Boulevard
Paul Revere 87 358440 Builder's Square 20811 South Dixie Highway
GACC 88 TA0839 Regency Residence 6711 Embassy Blvd.
GMAC 89 GMAC1640 Holly Court Apartments 550 East Holly Ave., 601 West
Holly Ave., and 620 South
Florence Ave.
Paul Revere 90 989994 2500 Internationale Parkway 2500 Internationale Parkway
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 91 TA0060 Northwest Atlanta Hilton Hotel 2055 South Park Place
GMAC 92 GMAC3150 Willow Oaks Shopping Center N/W/C Fox Hill Road and Willow
Oaks Boulevard
GMAC 93 GMAC1460 Fairfield Corporate Center 264 Passaic Avenue and 6, 7, and
10 Kingsbridge Road
Conti 94 9410213 Herndon Industrial Park 301 Spring Street
Paul Revere 95 989983 Aggregate Loan Level Information Various
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Paul Revere 95A 989983A Glenview Corporate Center (3050 Tillman 3050 Tillman Drive
Drive)
Paul Revere 95B 989983B Glenview Corporate Center (3260 Tillman 3260 Tillman Drive
Drive)
Paul Revere 96 381530 Price Chopper-Dunmore 1228 ONeil Highway
Paul Revere 97 999913 Wekiva Woods Apartments 950 Montgomery Road
Conti 98 9610062 Madison Heights MHP 26131 Dequindre Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Paul Revere 99 989978 Highland Court Office Building 9000 E. Nichols Avenue
GMAC 100 GMAC3160 Glendale Care Center 4704 West Diana
GMAC 101 GMAC3430 33 Walt Whitman 33 Walt Whitman Road
Conti 102 9510161 Sunrise Towne Centre 3820 and 3860 Convoy Street
GACC 103 TA0059 Aggregate Loan Level Information Various
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 103A TA0059A Portage Center 2935 New Pinery Road
GACC 103B TA0059B Waseca Center 1230 -1300 Highway 13 North
GMAC 104 GMAC3370 189 Montague Street 189 Montague Street
GMAC 105 GMAC1620 Interstate Corporate Center 280-282-288 Williston Road
GMAC 106 GMAC1090 192-196 Lexington Avenue 192 Lexington Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
<PAGE>
GMAC 107 GMAC1110 Aliso Viejo Plaza 26852-27072 La Paz Road
GMAC 108 GMAC1860 Sterling/Sahara Professional Park 7448-7548-7530-7560 West Sahara
Avenue
Paul Revere 109 989990 Siena Square 2060 Broadway
GACC 110 TA0486 Antigo Center 445 Highway 64
GMAC 111 GMAC1120 Electric Building 410 West 7th Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Paul Revere 112 000002 Lowe's Superstore 1565 US 70
GMAC 113 GMAC3520 Holiday Inn Bangor 404 Odlin Road
Conti 114 9410087 Laurel Canyon Self Storage 10864 Laurel Canyon Boulevard
GMAC 115 GMAC3180 Fox Hill Apartments 17611 West 16th Avenue
GMAC 116 GMAC3200 Overlook Apartments 1333 North Camino Alto
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 117 9510168 Glad Business Park 2446-2530 Main Street
Paul Revere 118 742640 Circuit City-Minnetonka 1001 Plymouth Road
GMAC 119 GMAC3190 Morris Heights Apartments 1849 Sedgwick Avenue
Paul Revere 120 989976 Circuit City -Clearwater 24244 US 19 Highway
Boston Capital 121 1845 Burleson Shopping Center 640 Wilshire Blvd.
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 122 GMAC1420 Alto Serramonte Shopping Center 314-362 Gellert Boulevard
Conti 123 NY97002 South Service Road 45 South Service Road
Conti 124 9510167 Santee Galleria 1048 Santee Street
GMAC 125 GMAC1650 Kingsrow Apartments 500 Chews Landing Road
GMAC 126 GMAC1370 Village LaVerne Retail Center 2105-2145 Foothill Boulevard
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 127 GMAC1260 Courtyard by Marriott -Long Beach 500 East First Street
Boston Capital 128 1719 Mission View Communities 31 West Los Reales Road
GMAC 129 GMAC1630 Hampton Inn Fairfax 10860 Lee Highway
GACC 130 TA0610 Bellfort Villa Apartments 6301 West Bellfort Boulevard
Paul Revere 131 989991 Hawthorne Gardens Apartments & 2010 Western 1980-2010 Western Avenue
Ave.
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Paul Revere 132 989999 Broadview Village Square NEC of South 17th Ave. & W.
Cermak Rd.
GACC 133 WF9702 10611 & 10621 Iron Bridge Rd. 10611 & 10621 Iron Bridge Rd
Paul Revere 134 989997 Bursca Business Park 400 -600 Bursca Drive
GACC 135 TA0484 Mauston Shopping Plaza 800 N. Union Street
GMAC 136 GMAC3220 Plum Tree Apartments 12450 Marshall Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 137 WF9704 Rolling Heights I 2275 Rolling Run Drive
GACC 138 TA0485 Medford Center 190 Medford Plaza
GMAC 139 GMAC3440 Life Care Center at South Mountain 8008 South Jesse Owens Parkway
GMAC 140 GMAC3170 Las Fuentes Care Center 1045 Scott Drive
Boston Capital 141 2094 Sebring Square Shopping Center 700 Sebring Square
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 142 LM9701 Marcy Avenue Office Building 185 Marcy Avenue
GMAC 143 GMAC1020 Green Valley Apartments 1960 South Chelton Road
GMAC 144 GMAC3230 Studio Village Shopping Center 11265-11321 Ventura Boulevard
Paul Revere 145 989977 Mass General Hospital Bldg. 121-123 Inner Belt Road
GACC 146 TA0461 Ocean Crest Retirement 192 Norman Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Boston Capital 147 1833 Valley Shopping Center 1000 North Elmira Street
GMAC 148 GMAC1600 Sandcreek Apartments 1940 South Chelton Road
GACC 149 TA0016 Howard Johnson Hotel 155 Riverside Street
GACC 150 TA0108 Melbourne Distribution Center 976-1024 Nandino Boulevard
Conti 151 97-1C Colorado Springs Wal-Mart 525 South Eighth Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 152 GMAC1490 Montpelier Woods Apartments 9513 Muirkirk Road
Conti 153 9510151 Vista Paint Plaza 24164-24196 Alicia Parkway &
25511-25521 Muirlands
GMAC 154 GMAC1210 Kings Plaza Medical Center 2270 Kimball Street
GMAC 155 GMAC3120 Cloverdale Court Apartments 340 South Cloverdale Avenue
Paul Revere 156 172760 Circuit City-Independence 18701 E. 39th Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 157 97-3C Park Santa Fe Shopping Center 3470-3518 East Santa Fe
Boston Capital 158 1406 Branch River Industrial Bldg. 582 Great Road (Route 146A)
Conti 159 97-LO11B 9822 Fallard Court 9822 Fallard Court
GMAC 160 GMAC1250 Orange Towne Center 109 Boston Post Road
Conti 161 25009 Donnelly Garden Apartments 1245-1400 Donnelly Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 162 GMAC1230 Newhouse Office Building 10 Exchange Place
GACC 163 TA0198 Princessa Apartments 1855 Wirt Drive
Paul Revere 164 172790 Circuit City-Lafayette 5624 Johnston Street
Conti 165 NY96001 Dyker Plaza 531 86th Street
Conti 166 97-LO11A 9821 Fallard Court 9821 Fallard Court
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 167 WHSE1670 Oxbow Apartments 4800 S. Tennis Lane
Conti 168 HSA1003 Kishwaukee Industrial 4500 Kishwaukee Road
Paul Revere 169 989988 Transit Storage 3031 & 3051& 3101 Washington
Boulevard
Paul Revere 170 999906 The Sports Authority 105 Pace Boulevard
Conti 171 96-L033 Hillside Industrial Center 100 Hoffman Place
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 172 TA0027 Belair Towers Apartments 555 Elizabeth Ave.
GMAC 173 GMAC1220 Mid Valley Business Center 35, 40, 50 & 55 Sunset Drive
Conti 174 9410190 Hide-Away -Sarasota 2 2590 17th Street
Conti 175 9410189 Hide-Away -Sarasota 1 335 South Beneva Road
Conti 176 9510176 Best Western -Beaumont Inn 2155 N. 11th Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
<PAGE>
GMAC 177 GMAC3130 Oasis Apartments 217 North Sunset Avenue
GMAC 178 GMAC3240 College Square Shopping Center 917-963 West March Lane
Paul Revere 179 383480 Sports Authority 1730 Fowler Avenue
GMAC 180 GMAC1310 Essex Village/Marlyn Gardens Apartments 414-500-504 Marlyn Avenue,
800-851 Brunswick Road, 207-219
Marlyn Avenue, and 902-942
Paul Revere 181 989979 211 Sinclair Street 211 Sinclair Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 182 GMAC1570 Gatehouse Apartments 300 North Fort Lane
Conti 183 97-40C Highland Apartments 2600 Knollwood Court
GACC 184 TA0245 Shader Road Warehouses 2515-2517 Shader Road
Conti 185 9510131 Flamingo Lakes 2820-2880 E. Flamingo Rd.
Conti 186 9410131 American Self Storage 7676 Slater Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 187 GMAC1320 Surfside Commons U.S. Highway 17 By-Pass and SC
#544
Boston Capital 188 1766 Gansett Shopping Center 50-90 Newport Avenue
GMAC 189 GMAC1690 Independence Hall and Jefferson Mansion 111 -141 East 5600 South
GACC 190 WF9705 Yellow Brick Road IV 9008 Yellow Brick Road
GMAC 191 GMAC3510 88 -96 Third Avenue 88 -96 Third Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 192 GA0035 Walnut Ranch Apartments 1330 West H Street
Boston Capital 193 2048 Preston Highlands Retail Ctr. 2401 Preston Road
GACC 194 TA0993 The Woods Apartments 2234 W. Merced Avenue
Conti 195 97-H005 Wilshire Nursing and Rehab Center 290 Heather Court
Conti 196 9510133 Green Isle Apartments 457 Flint Hill Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 197 GMAC1190 Tyler Square Center 1320 Main Street
GMAC 198 GMAC1730 Atrium Office Building 5250 South Commerce Drive
Boston Capital 199 1681 50 D'Angelo Drive 50 DAngelo Drive
Conti 200 9510137 Jacksonville Comfort Inn 341 Park Avenue
Boston Capital 201 2344 Bay Centre Plaza 1217 Bay Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 202 9510134 Monterey Apartments 1315 Magnolia Avenue
GMAC 203 GMAC3250 Westgate Center Office Park 2528 & 2531 Center West Parkway
GMAC 204 GMAC3140 Martinique Apartments 5951 Riverside Drive
GMAC 205 WHSE1680 Century Apartments -Williston 1501, 1509, 1510 Bison Dr.; 1510
9th Ave. West; 1710, 1724 16th
Ave. West; & various
GACC 206 WF9706 Yellow Brick Road V 9100 Yellow Brick Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 207 GMAC1710 Spring Run 965 -970 East Murray-Holladay
Road
GMAC 208 GMAC1070 Wildflower Apartments 1250 34th Street
Conti 209 25006 St. George/25 Hyatt Office Building 25 Hyatt Street
Conti 210 9510175 Best Western -Jefferson Inn 1610 Interstate 10
Conti 211 9510154 Knights Inn -Seymour 207 N. Sandy Creek Drive
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Boston Capital 212 2165 1401 Erie Boulevard East 1401 Erie Boulevard East
GACC 213 TA0514 Plantation Business Park 4350-4450 West Sunrise Blvd.
GMAC 214 GMAC1680 Cloverland Office Building 5242 South College Drive
Conti 215 96-LO29 College Center 6704-6830 South 19th Street
Conti 216 HSA1004 Harbor East 4100 Edgewood Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 217 GMAC1380 Skyline Apartments 201 Skyline Circle
Conti 218 9510177 Best Western Westchase Mini-Suites 2950 W. Sam Houston Parkway
Conti 219 9510142 L.A. County Mental Health Building 1224 North Vine
Boston Capital 220 1690 Benchmark Shopping Center 82 East Beaver Creek Boulevard
GACC 221 GA0093 Circuit City Service Center 7351 Round Pond Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 222 97-LO13 Stoney Brook/Waterfront Apartments 4901 and 5001 San Mateo Lane NE
Paul Revere 223 172761 Circuit City-Fredericksburg 3061 Plank Road
Conti 224 CLC1008 Country Estates MHP 3500 35th Avenue
GMAC 225 GMAC1100 Maddex Square Shopping Center Route 45 and Maddex Drive
Boston Capital 226 2396 Shaw's CarpetSmart 100 Jay Scutti Blvd.
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 227 9410137 Security Public Storage -Bermuda Dunes 39-505 Berkey Drive
GMAC 228 WHSE1700 Oakwood Apartments 3300, 3400 West 53rd Street;
3301, 3401, 3409 West 51st Street
Boston Capital 229 1857 Vertex Pharmaceuticals Bldgs. 228-240 Sidney Street
Boston Capital 230 2139 Monarch Court Office Building 6265 Greenwich Drive
Conti 231 9410214 Victory Self Storage 303 Victory Drive
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 232 9410162 U-Stor-It (Red Bird) 5409 Westmoreland Road
GMAC 233 GMAC1720 Spring Pines 825 -865 East Murray-Holladay
Road
GMAC 234 GMAC3500 Lower Atherton Plaza 986 & 990 West Atherton Drive
Conti 235 97-LO01 ATT Retail Condos 15 West Sixth Street
GMAC 236 GMAC3280 Aztec Villa Apartments 4001 East McDowell Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 237 GMAC1610 Huntington Green Apartments 1650 West Chester Pike
GACC 238 TA0969 Colonial Manor Apartments 124-50 W. Evergreen Avenue
GMAC 239 GMAC1740 Prowswood Plaza 4885 South 900 East
GMAC 240 GMAC3290 Lancaster Mews Apartments 3600-3630 Lancaster Avenue
GMAC 241 GMAC1400 4455 South Office Building 4455 South 700 East
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 242 9410198 Safe Harbor Self Storage 16842 Harbor Blvd
Conti 243 9410207 Security Public Storage -Oceanside 1501 South Coast Highway
GMAC 244 GMAC1360 Emerald Shores 3802 Nasa Road One
GMAC 245 GMAC1750 Villa / Sierra roll up Various
GMAC 245A GMAC1750A Villa Maria Care Center 723 East 9th Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
<PAGE>
GMAC 245B GMAC1750B Sierra View Care Center 14318 Ohio Street
Conti 246 9410188 Hide-Away -Bradenton 8400 Cortez Road West
Conti 247 9410182 Stor N'Lock (3) 16515 South Valley View
GMAC 248 GMAC1700 Washington Square 151 East 5600 South
Conti 249 96-S022 2000 Post Road Office Bldg 2000 Post Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Paul Revere 250 989981 111-115 Sinclair Street 111-115 Sinclair Street
GMAC 251 GMAC1550 The Parkway Apartments 925 -931 North Front Street
Conti 252 97-H001 Sun Valley Child Care Center 10705 Penrose Street
Conti 253 97-LO05 Super 8 Motel -Hyde Park 528 Albany Post Road
Paul Revere 254 989980 Crossroads Industrial Center 2 Manhattan Drive
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 255 9610069 Canyon View Mobile Home Park 1450 North Dixie Downs Road
Conti 256 9410220 Tanque Verde / Kolb Self Storage 6750 East Tanque Verde Road
Conti 257 96-LO08 Glendale Shopping Center 1114-1118 / 1126-1144 E. Broadway
Boston Capital 258 1682 10 Wheeling Avenue 10 Wheeling Avenue
GMAC 259 WHSE1750 Chateau Apartments 1725 & 1805 2nd Avenue S.W.
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GACC 260 TA0110 The Birches Apartments 105 Blackwood-Clementon Road
Conti 261 97-L017 Zachary Place Apartments 3327 Willow Creek Drive
Conti 262 9510145 Okeechobee Business Center / Town Center 1799 South Parrott Avenue
Garden
GACC 263 TA0970 Chestnut Hill Apartments 220 West Evergreen Ave.
GMAC 264 WHSE1760 Century Apartments-Dickinson 1156 21st Street West
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 265 GMAC1150 Adams House Health Center 80 Fern Drive
Conti 266 9410206 Security Public Storage -Vallejo 4360 Sonoma Blvd.
GMAC 267 GMAC1240 Nottingham Village Apartments 1310 Nottingham Way
Conti 269 96-S043 Lake Bryan Supermarket 13605 State Road 535
GMAC 270 GMAC1300 North Highland Center 200 North Highland Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 271 WHSE1780 Hill Park (also known as Garden Grove) 2010, 2030 & 2120 Xavier Street
GMAC 272 GMAC1590 Pineridge Apartments East 40 Pineridge Court
GMAC 273 GMAC3300 Lyons Center 1213 &1245 West Henderson Avenue
Conti 274 CLC1010 Atlasta Mobile Home Park & Mini Storage 3605 Federal Way
Boston Capital 275 2250 Nautilus Professional Bldg 470 Nautilus Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Boston Capital 276 1188 Seville Apartments 185 East, 300 North
Conti 277 HSA1001 Walnut Hill Shopping Center 3720 Walnut Hill Lane
Conti 278 9510140 4525 Madison 4525 Madison Avenue
GMAC 279 GMAC1430 Candle Chase Apartments 6822 South Hulen Street
Conti 280 CLC1007 Apple Mini Storage Park 3158 Thorntree Drive
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 281 GMAC1480 Mat West Industrial 14332, 14348 Calvert St,; 14333,
14339 and 14343 Bessemer St.;
14932 Oxnard St.
Conti 282 96-LO30 Dana Plaza Shopping Center 31260 Pacific Highway South
GMAC 283 GMAC1540 Wedgewood Apartments 2555 Wedgewood Road
Paul Revere 284 999978 Phair Office Park I 1000-1056 West Street
Boston Capital 285 1821 Brookwood Apartments 1904 White Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 286 9510146 Jacksonville Days Inn 4280 Eldridge Loop
Paul Revere 287 989982 Whiteland Business Center 860 Springdale Drive
Conti 288 CLC1009 Grandma's Truckstop 9378 West State Road 114
Paul Revere 289 999937 Memtek Building 28 Cook Street
Conti 290 9510173 Arrow Highway 15426 Arrow Highway
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 291 NY96002 3032 Nostrand Avenue 3032 Nostrand Avenue
Conti 292 9410200 Storage World Self Storage 8500 Cunningham Lake Road
Conti 293 9610071 Shady Acres and Fairgrove MHP 11 Shady Acres Lane
GMAC 294 WHSE1790 Rosewood Court Apartments 3500 & 3510 West 53rd; 4508 S.
Tennis Lane
GMAC 295 GMAC1350 Pine Garden Apartments 6414 Baseline Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 296 9510132 Comfort Inn -Waxahachie 200 Interstate Highway 35 East
GMAC 297 GMAC1170 Blue Mountain Convalescent Home 1200 South East 12th Street
Conti 298 9410208 Dandy Trail Self Storage 8051 Windham Lake Drive
Conti 299 9510163 51 Federal Street 51 Federal Street
Conti 300 97-S015 Rite Aid 1631-1643 Pitkin Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 301 NY0015 Grand Union Store 501 West Harford Street
GMAC 302 GMAC1340 Trotter's Alley 30-34 South Second Street
Boston Capital 303 1698 Park Row West Shopping Center 2221 West Park Row
Boston Capital 304 1512 1215 Zerega Avenue 1215 Zerega Avenue
GMAC 305 GMAC3310 Avalon Apartments 814-820 Southern Avenue, SE
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 306 GMAC1080 Pineview Apartments East 1405 30th Avenue
Conti 307 97-LO15 Center Point Business Park 1331 Highway 80
Conti 308 97-S001 Kissimmee Business Center US 441 & Fletcher Street
Conti 309 96-S030 Halilani Apartments 1050 South J Street
Conti 310 96-S010 Sunset Shopping Center 5123 -5137 1/2 W. Sunset
Boulevard
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
GMAC 311 GMAC1440 Havana Plaza Shopping Center 2222 South Havana Street
Conti 312 9510153 Casa Grande and La Casa Apartments 119 West Young Avenue/2908 Lake
Road
GMAC 313 GMAC1010 Teton Meadows Apartments 820 East Hansen Avenue
Conti 314 96-S028 147 Spring Street 147 Spring Street
Conti 315 96-S019 Ramada Inn PO Box 429, US Hwy 17 and I-95
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
<PAGE>
Conti 316 9410212 Sunshine Self Storage 3125 W. Superstition Blvd
Conti 317 9510112 Platte Canyon Square Shopping Center 5950 Platte Canyon Road
Conti 318 9510169 Lincoln/Anaheim Strip Center 2405 & 2415 West Lincoln Avenue
GMAC 319 GMAC1670 Atherton Plaza 1006 -1020 -1030 West Atherton
Drive
Conti 320 97-S013 1561-1567 Pitkin Avenue 1561-1567 Pitkin Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 321 P0-S0736 Southgate Village II 8215-8225 Long Beach Blvd.
Conti 322 9410204 Alpine Personal Storage 856 Tavern Road
Conti 323 9410202 Rancier Mini Storage 1003 North 38th Street
Conti 324 96-S021 2060/2070 Post Road 2060/2070 Post Road
Conti 325 97-S046 Crestwood Apartments 3612 -3620 Crest Avenue SE
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 326 9410211 Hawn Freeway Self Storage 7979 C.F. Hawn Freeway
Conti 327 97-S002 Plaza Del Sol Apartments 304 1/2 Montclaire Drive SE
Conti 328 9410194 Peachtree City Self Storage 126 Huddleston Drive
Conti 329 97-S049 Ramblin Rows Mobile Home Park 4902 West Bethany Home Road
Conti 330 96-LO03 5000 Angola Road 5000 Angola Road
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 331 97-S006 757-761A Flatbush Avenue 757-16A Flatbush Avenue
Conti 332 96-S042 Royal Center 10650-10668 Zelzah Avenue
Conti 333 99-S004 Steve's Auto Detailing 1645 Superior Avenue
Conti 334 96-S038 91 North 5th Street 91 North 5th Street
Conti 335 97-S019 29-16 21st Avenue 29-16 21st Avenue
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 336 97-S018 Calabro Chevrolet 2549 Whitehaven Road
Conti 337 97-S007 763-767 Flatbush Avenue 763-767 Flatbush Avenue
Conti 338 96-S047 Southwest Hood 3611 S.W. Hood
Conti 339 96-S036 Eugenie Apartments 21-26 Menahan Street
Conti 340 96-S033 Leung Retail Center 1161 N. Avalon Boulevard
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 341 96-S046 Blue Tiplit Inc. (Poseidon Plaza) Route 6
Conti 342 97-S027 Pine Hill Apartments 365 -395 Holly Street NW
Conti 343 96-S044 Congo River Gift Shop 4775 State Road 192
Conti 344 97-S008 University Place Apartments 575-615 Atlantic Street
Conti 345 96-S005 Bank Street Brewing Co. 65 Bank Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 346 97-S033 Beverly Court Apartments 511 West Evergreen Boulevard
Conti 347 96-S001 Reseda Industrial 5969-6007 Reseda Blvd.
Conti 348 97-S016 185 N. Robertson Blvd. 185 N. Robertson Blvd.
Conti 349 96-S029 Socci 24 -26 Locust Avenue
Conti 350 P0-S0662 Luxor Enterprises 104 West Cedar Street
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 351 97-S005 Courts of Lakewood 5511 Columbia Avenue
Conti 352 P0-S6732 South Yale/Santa Ana Industrial 2601 South Yale Street
Conti 353 96-S023 391 Pacific Street 391 Pacific Street AKA 101-109
Bond Street
Conti 354 97-S012 Lake Breeze Mobile Home Park 8704 Lake Road
Conti 355 97-S024 Hollywood Market 4434 NE Sandy Boulevard
- -------------- ------- ---------------- --------------------------------------------- ---------------------------------
Conti 356 96-S050 Atlantic Townhouses 833 E. University Blvd.
</TABLE>
<PAGE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
CUT-OFF
LOAN ZIP CROSSED LOAN ORIGINAL DATE ACCRUAL
SOURCE CITY STATE CODE CONTROL NUMBERS BALANCE BALANCE METHOD
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
<S> <C> <C> <C> <C> <C> <C>
GACC Queens New York 11415 $40,000,000 $39,956,047 30 / 360
GACC Richmond Virginia 23233 39,951,500 39,902,840 Actual / 360
GACC Various Various Various 31,000,000 31,000,000 30 / 360
GACC Manchester Connecticut 06040
GACC Manchester Connecticut 06040
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC Manchester Connecticut 06040
GACC Meriden Connecticut 06460
GACC Waterbury Connecticut 06708
GACC Farmington Connecticut 06032
GACC Detroit Michigan 48233 26,000,000 25,983,949 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Various Various Various 23,835,000 23,817,711 Actual / 360
GMAC Perth Amboy New Jersey 08861
GMAC Maple Shade New Jersey 08052
GMAC Teaneck New Jersey 07666
GACC New York New York 10003 22,500,000 22,485,446 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Farmington Connecticut 06032 22,000,000 22,000,000 30 / 360
GMAC Bensalem Township Pennsylvania 19020 21,500,000 21,461,645 30 / 360
Paul Revere Exton Pennsylvania 19341 20,000,000 20,349,066 30 / 360
GACC Oklahoma City Oklahoma 73120 20,000,000 20,000,000 30 / 360
GACC Northville Michigan 48152 19,900,000 19,886,634 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Denver Colorado 80202 19,250,000 19,184,680 30 / 360
GMAC Various Various Various 19,165,000 19,151,103 Actual / 360
GMAC Manahawkin, New Jersey 08050
Stafford Township
GMAC Carney's Point New Jersey 08069
GMAC Trenton New Jersey 08618
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Sacramento California 95814 18,900,000 18,880,836 30 / 360
Conti Modesto California 95356 18,500,000 18,500,000 30 / 360
Paul Revere Various Various Various 16,90 18,900,000 16,986,421 30 / 360
Paul Revere Woodridge Illinois 60517 16,90
Paul Revere Woodridge Illinois 60517 16,90
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Paul Revere Woodridge Illinois 60517 16,90
Paul Revere Woodridge Illinois 60517 16,90
Paul Revere New York New York 10017 16,000,000 15,564,632 30 / 360
GACC Washington District of Columbia 20006 15,250,000 15,240,762 30 / 360
Conti Encino California 91316 15,000,000 14,984,545 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC New York New York 10023 14,000,000 14,000,000 30 / 360
GMAC Sacramento California 95816 14,000,000 13,983,821 30 / 360
GMAC New York New York 10017 13,750,000 13,703,512 30 / 360
GMAC San Mateo California 94403 13,400,000 13,381,576 Actual / 360
Paul Revere Overland Park Kansas 66212 13,250,000 12,957,539 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Arlington Virginia 22203 12,650,000 12,593,295 30 / 360
GACC Reading Pennsylvania 19606 12,500,000 12,484,550 30 / 360
Boston Capital Richmond California 94804 11,950,000 11,950,000 30 / 360
Conti Clinton Township Michigan 48236 12,000,000 11,946,597 30 / 360
GACC Avon Massachusetts 02322 11,800,000 11,770,878 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Glenview Illinois 60093 11,600,000 11,526,288 30 / 360
Conti Various Various Various 11,400,000 11,390,041 30 / 360
Conti Hamilton Township New Jersey 08619
Conti Hamilton Township New Jersey 08619
GACC Mount Pocono Pennsylvania 18344 11,400,000 11,385,367 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Paul Revere Norwalk Connecticut 06854 12,500,000 11,355,169 30 / 360
Paul Revere Union Township Ohio 45245 12,000,000 11,233,714 30 / 360
(Cincinnati)
GACC Dallas Texas 75205 11,000,000 11,000,000 30 / 360
GACC Mayaguez Puerto Rico UAV 36,53,54 10,600,000 10,600,000 30 / 360
GACC Fontana California 92335 10,400,000 10,387,668 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC Stockbridge Georgia 30281 10,360,460 10,347,272 Actual / 360
Paul Revere Avon Connecticut 06001 10,700,000 10,320,419 30 / 360
GACC Houston Texas 77007 10,300,000 10,300,000 30 / 360
GACC Washington District of Columbia 20008 10,230,000 10,223,803 30 / 360
Conti Bethesda Maryland 20815 10,050,000 10,029,860 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Fishkill New York 12524 10,000,000 9,942,406 30 / 360
Paul Revere Kennett Square Pennsylvania 19348 10,400,000 9,598,750 30 / 360
GACC Las Vegas Nevada 89121 9,500,000 9,500,000 30 / 360
GMAC Washington District of Columbia 20009 46,56 9,500,000 9,482,633 30 / 360
GACC Houston Texas 77034 9,223,220 9,211,479 Actual / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC San Francisco California 94102 9,275,000 9,202,845 30 / 360
Conti San Diego California 92123 9,000,000 8,990,131 30 / 360
Boston Capital Lancaster Pennsylvania 17603 8,250,000 8,250,000 30 / 360
Paul Revere Various Various Various 9,000,000 8,229,463 30 / 360
Paul Revere Manchester Connecticut 06040
<PAGE>
CUT-OFF
LOAN ZIP CROSSED LOAN ORIGINAL DATE ACCRUAL
SOURCE CITY STATE CODE CONTROL NUMBERS BALANCE BALANCE METHOD
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------
Paul Revere East Hartford Connecticut 06108
Paul Revere East Granby Connecticut 06103 $8,700,000 $8,121,757 30 / 360
GACC Carolina Puerto Rico 00985 36,53,54 8,000,000 8,000,000 30 / 360
GACC Carolina Puerto Rico 00985 36,53,54 8,000,000 8,000,000 30 / 360
Boston Capital Del Mar California 92014 8,000,000 7,994,444 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Washington District of Columbia 20007 46,56 8,000,000 7,985,375 30 / 360
GACC Houston Texas 77090 7,939,485 7,929,379 Actual / 360
GACC Durango Colorado 81301 7,800,000 7,775,874 30 / 360
GACC New York New York 10019 7,650,000 7,591,909 30 / 360
GACC Philadelphia Pennsylvania 19114 7,500,000 7,500,000 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Sunnyvale California 94087 7,400,000 7,392,452 30 / 360
GMAC Upland California 91786 7,385,000 7,385,000 30 / 360
Boston Capital Marlborough/SouthboroughMassachusetts 01752 7,300,000 7,300,000 30 / 360
Paul Revere Union New Jersey 07083 8,500,000 7,220,808 30 / 360
Boston Capital Phoenix Arizona 85016 7,250,000 7,181,567 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Covington Georgia 30209 7,070,000 7,058,327 30 / 360
GMAC Denville New Jersey 07834 7,000,000 6,925,800 30 / 360
Conti Yorba Linda California 92686 6,800,000 6,781,667 30 / 360
Paul Revere Kansas City Missouri 64151 6,900,000 6,720,868 30 / 360
GACC Atlanta Georgia 30315 6,700,000 6,692,230 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC San Antonio Texas 78209 6,700,000 6,669,668 30 / 360
Boston Capital Atlanta Georgia 30329 6,700,000 6,657,772 30 / 360
GACC Bradenton Florida 34668 6,550,000 6,550,000 30 / 360
GACC Various Various Various 6,420,000 6,408,273 30 / 360
GACC Jersey City New Jersey 07303
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC Jersey City New Jersey 07303
GACC Jersey City New Jersey 07303
GACC North Bergen New Jersey 07047
GACC Jersey City New Jersey 07303
GACC Jersey City New Jersey 07302
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC Jersey City New Jersey 07303
GACC Jersey City New Jersey 07302
GMAC Garden Grove California 92841 6,420,000 6,391,126 30 / 360
Paul Revere New York New York 10016 7,600,000 6,361,856 30 / 360
Conti Bossier City Louisiana 78201 6,350,000 6,338,956 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Paul Revere Clay New York 13088 6,825,000 6,295,493 30 / 360
Paul Revere Albany New York 12206 79,96 6,235,000 6,064,716 30 / 360
GACC Fairborn Ohio 45324 6,000,000 5,987,320 30 / 360
Conti La Mesa California 91941 6,000,000 5,984,321 30 / 360
Paul Revere Countryside Illinois 60525 6,191,036 5,936,402 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Indianapolis Indiana 46219 5,875,000 5,842,768 30 / 360
GMAC Santa Maria California 93454 5,700,000 5,688,043 30 / 360
Paul Revere Various Various Various 6,500,000 5,679,933 Silent
Paul Revere Gastonia North Carolina 28054
Paul Revere Charlotte North Carolina 28212
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Los Angeles California 90046 5,540,000 5,540,000 30 / 360
Paul Revere Miami Florida 33189 5,767,000 5,530,024 30 / 360
GACC Port Richey Florida 34668 5,500,000 5,500,000 30 / 360
GMAC Pitman New Jersey 08071 5,500,000 5,490,438 30 / 360
Paul Revere Woodridge Illinois 60517 16,90 5,750,000 5,450,198 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC Atlanta Georgia 30339 5,500,000 5,447,478 30 / 360
GMAC Hampton Virginia 23669 5,400,000 5,393,789 30 / 360
GMAC Fairfield New Jersey 07004 5,400,000 5,388,130 30 / 360
Conti Herndon Virginia 22070 94,231 5,400,000 5,380,708 30 / 360
Paul Revere Various Various Various 95,250,254,287 5,535,000 5,370,374 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Paul Revere Bensalem Pennsylvania 19020 95,250,254,287
Paul Revere Bensalem Pennsylvania 19020 95,250,254,287
Paul Revere Dunmore Pennsylvania 18512 79,96 5,465,000 5,315,834 30 / 360
Paul Revere Altamonte Springs Florida 32714 5,450,000 5,299,306 Actual / 360
Conti Madison Heights Michigan 48071 5,200,000 5,171,179 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Paul Revere Englewood Colorado 80111 5,250,000 5,139,177 30 / 360
GMAC Glendale Arizona 85302 5,130,000 5,122,102 30 / 360
GMAC Huntington New York 11746 5,100,000 5,096,089 Actual / 360
Conti San Diego California 92111 5,100,000 5,095,109 30 / 360
GACC Various Various Various 5,089,671 5,089,671 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC Portage Wisconsin 53901
GACC Waseca Minnesota 56093
GMAC Brooklyn New York 11201 5,050,000 5,046,560 Actual / 360
GMAC Williston Vermont 05495 5,000,000 4,992,593 30 / 360
GMAC New York New York 10016 5,000,000 4,968,331 30 / 360
<PAGE>
CUT-OFF
LOAN ZIP CROSSED LOAN ORIGINAL DATE ACCRUAL
SOURCE CITY STATE CODE CONTROL NUMBERS BALANCE BALANCE METHOD
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Aliso Viejo California 92656 $5,000,000 $4,966,465 30 / 360
GMAC Las Vegas Nevada 89117 4,990,000 4,914,892 30 / 360
Paul Revere Boulder Colorado 80302 5,030,000 4,900,251 30 / 360
GACC Antigo Wisconsin 54409 4,883,776 4,883,776 30 / 360
GMAC Fort Worth Texas 76102 4,850,000 4,829,830 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Paul Revere Garner North Carolina 27529 4,900,000 4,825,532 30 / 360
GMAC Bangor Maine 04401 4,800,000 4,800,000 30 / 360
Conti Pacoima California 91331 4,760,000 4,760,000 30 / 360
GMAC Golden Colorado 80401 4,745,000 4,739,313 30 / 360
GMAC Vallejo California 94589 4,735,000 4,735,000 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Chula Vista California 91911 4,700,000 4,695,352 30 / 360
Paul Revere Minnetonka Minnesota 55305 4,862,959 4,662,949 30 / 360
GMAC Bronx New York 10453 4,650,000 4,644,381 30 / 360
Paul Revere Clearwater Florida 32463 4,700,000 4,582,964 30 / 360
Boston Capital Burleson Texas 76028 4,578,000 4,557,411 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Daly City California 94015 4,550,000 4,538,232 30 / 360
Conti Plainview New York 11791 4,500,000 4,500,000 30 / 360
Conti Los Angeles California 90015 4,500,000 4,495,503 30 / 360
GMAC Lindenwold Borough New Jersey 08021 4,500,000 4,492,095 30 / 360
GMAC LaVerne California 91750 4,350,000 4,338,187 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Long Beach California 90802 4,300,000 4,280,533 30 / 360
Boston Capital Tucson Arizona 85701 4,300,000 4,275,650 30 / 360
GMAC Fairfax Virginia 22030 4,250,000 4,239,458 30 / 360
GACC Houston Texas 77035 4,130,000 4,122,215 30 / 360
Paul Revere Guilderland New York 12203 4,215,000 4,109,550 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Paul Revere Broadview Illinois 60153 4,200,000 4,074,444 30 / 360
GACC Jessup Maryland 20794 4,195,000 4,062,686 30 / 360
Paul Revere South Fayette Pennsylvania 15017 4,300,000 4,038,735 30 / 360
GACC Mauston Wisconsin 53948 4,028,181 4,028,181 30 / 360
GMAC Chino California 91710 4,009,000 4,009,000 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC Baltimore Maryland 21224 4,140,000 4,009,421 30 / 360
GACC Medford Wisconsin 54451 3,998,372 3,998,372 30 / 360
GMAC Phoenix Arizona 85040 4,000,000 3,996,175 30 / 360
GMAC Prescott Arizona 86301 4,000,000 3,996,175 30 / 360
Boston Capital Sebring Florida 33872 4,000,000 3,985,351 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC Brooklyn New York 11211 3,937,000 3,903,376 30 / 360
GMAC Colorado Springs Colorado 80916 3,925,000 3,900,549 30 / 360
GMAC Studio City California 91604 3,900,000 3,897,770 30 / 360
Paul Revere Somerville Massachusetts 02167 4,350,000 3,878,059 Actual / 360
GACC Coos Bay Oregon 97420 3,850,000 3,838,925 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Boston Capital Athens Township Pennsylvania 18840 3,800,000 3,783,062 30 / 360
(Sayre)
GMAC Colorado Springs Colorado 80916 3,800,000 3,776,337 30 / 360
GACC Portland Maine 04103 3,750,000 3,741,171 30 / 360
GACC Lexington Kentucky 40511 3,750,000 3,739,437 30 / 360
Conti Colorado Springs Colorado 80905 3,747,000 3,737,048 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Laurel Maryland 20708 3,725,000 3,718,799 30 / 360
Conti Mission Viejo California 92691 3,700,000 3,696,014 30 / 360
GMAC Brooklyn New York 11234 3,710,000 3,692,813 30 / 360
GMAC Los Angeles California 90036 3,690,000 3,690,000 30 / 360
Paul Revere Independence Missouri 64057 156,164 3,854,419 3,695,889 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Flagstaff Arizona 86001 3,600,000 3,600,000 30 / 360
Boston Capital North Smithfield Rhode Island 02917 3,600,000 3,596,546 30 / 360
Conti Upper Marlboro Maryland 20772 159,166 3,600,000 3,594,443 30 / 360
GMAC Orange Connecticut 06477 3,600,000 3,590,232 30 / 360
Conti Atlanta Georgia 30310 3,562,000 3,558,404 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Salt Lake City Utah 84111 3,550,000 3,533,822 30 / 360
GACC Houston Texas 77055 3,540,000 3,527,251 30 / 360
Paul Revere Lafayette Louisiana 70503 156,164 3,674,679 3,529,134 30 / 360
Conti Brooklyn New York 11209 3,500,000 3,496,467 30 / 360
Conti Upper Marlboro Maryland 20772 159,166 3,500,000 3,494,591 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Sioux Falls South Dakota 57106 167,205,228,264,294 3,565,000 3,452,688 30 / 360
Conti Rockford Illinois 61109 3,450,000 3,443,152 30 / 360
Paul Revere Baltimore Maryland 21230 3,500,000 3,416,700 30 / 360
Paul Revere Warwick Rhode Island 02886 3,500,000 3,407,767 Actual / 360
Conti Hillside New Jersey 07205 3,400,000 3,400,000 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC Newark New Jersey 07112 3,400,000 3,387,893 30 / 360
GMAC Basalt Colorado 81621 3,400,000 3,387,873 30 / 360
Conti Sarasota Florida 34234 174,175,246 3,400,000 3,382,857 30 / 360
Conti Sarasota Florida 34232 174,175,246 3,400,000 3,382,857 30 / 360
Conti Beaumont Texas 77703 176,210,218 3,350,000 3,350,000 30 / 360
<PAGE>
CUT-OFF
LOAN ZIP CROSSED LOAN ORIGINAL DATE ACCRUAL
SOURCE CITY STATE CODE CONTROL NUMBERS BALANCE BALANCE METHOD
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC West Covina California 91790 $3,321,000 $3,321,000 30 / 360
GMAC Stockton California 95207 3,260,000 3,256,929 30 / 360
Paul Revere Tampa Florida 33612 3,350,000 3,239,827 30 / 360
GMAC Essex Maryland 21221 3,200,000 3,179,565 30 / 360
Paul Revere Bristol Pennsylvania 19007 95,250,254,287 3,265,000 3,167,890 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Layton Utah 84041 3,175,000 3,155,229 30 / 360
Conti Cameron Park California 95682 3,120,000 3,120,000 30 / 360
GACC Orlando Florida 32804 3,100,000 3,097,060 30 / 360
Conti Las Vegas Nevada 89121 3,000,000 2,990,245 30 / 360
Conti Huntington Beach California 92647 3,000,000 2,988,918 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Surfside South Carolina 29575 3,000,000 2,988,580 30 / 360
Boston Capital East Providence Rhode Island 02914 3,000,000 2,986,441 30 / 360
GMAC Murray Utah 84107 189,198,207,214,233,234,239,241,248,3192,955,0002,949,967 30
/ 360
GACC Baltimore Maryland 20794 3,030,000 2,934,431 30 / 360
GMAC New York New York 10003 2,925,000 2,923,228 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC Dixon California 95620 2,925,000 2,920,120 30 / 360
Boston Capital Plano Texas 75093 2,900,000 2,900,000 30 / 360
GACC West Covina California 91790 2,900,000 2,896,934 30 / 360
Conti Templeton California 93465 2,900,000 2,894,914 30 / 360
Conti Bessemer Alabama 35023 2,900,000 2,892,500 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Willimantic Connecticut 06226 2,900,000 2,878,858 30 / 360
GMAC Murray Utah 84107 189,198,207,214,233,234,239,241,248,3192,870,0002,865,112 30
/ 360
Boston Capital Marlborough Massachusetts 01752 2,850,000 2,844,448 30 / 360
Conti Orange Park Florida 32073 200,286 2,825,000 2,809,689 30 / 360
Boston Capital Penfield New York 14580 2,768,000 2,768,000 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Gardena California 90247 2,740,000 2,727,595 30 / 360
GMAC Augusta Georgia 30909 2,656,000 2,653,088 30 / 360
GMAC Chino California 91710 2,640,000 2,640,000 30 / 360
GMAC Williston North Dakota 58801 167,205,228,264,294 2,700,000 2,614,939 30 / 360
GACC Baltimore Maryland 20794 2,700,000 2,614,840 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Salt Lake City Utah 84117 189,198,207,214,233,234,239,241,248,3192,605,0002,600,563 30
/ 360
GMAC Missoula Montana 59801 2,539,260 2,524,768 30 / 360
Conti Staten Island New York 10301 2,524,800 2,514,920 30 / 360
Conti Beaumont Texas 77707 176,210,218 2,500,000 2,500,000 30 / 360
Conti Seymour Indiana 47274 2,500,000 2,500,000 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Boston Capital Syracuse New York 13201 2,500,000 2,498,519 30 / 360
GACC Plantation Florida 33313 2,500,000 2,497,540 30 / 360
GMAC Murray Utah 84123 189,198,207,214,233,234,239,241,248,3192,400,0002,395,913 30
/ 360
Conti University Place Washington 98466 2,400,000 2,395,703 30 / 360
Conti Ft. Myers Florida 33901 2,400,000 2,395,333 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Grand Prairie Texas 75050 2,400,000 2,393,516 30 / 360
Conti Houston Texas 77042 176,210,218 2,350,000 2,350,000 30 / 360
Conti Los Angeles California 90038 2,300,000 2,295,970 30 / 360
Boston Capital Avon Colorado 81620 2,300,000 2,295,963 30 / 360
GACC Cicero New York 13039 2,264,845 2,261,962 Actual / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Albuquerque New Mexico 87109 2,265,000 2,259,019 30 / 360
Paul Revere Fredericksburg Virginia 23233 2,356,587 2,259,662 30 / 360
Conti Greeley Colorado 80634 2,250,000 2,243,781 30 / 360
GMAC Sheperdstown West Virginia 25443 2,250,000 2,237,363 30 / 360
Boston Capital Henrietta New York 14623 2,230,000 2,230,000 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Bermuda Dunes California 92201 2,200,000 2,194,543 30 / 360
GMAC Sioux Falls South Dakota 57106 167,205,228,264,294 2,250,000 2,179,116 30 / 360
Boston Capital Cambridge Massachusetts 02139 2,130,000 2,116,403 30 / 360
Boston Capital San Diego California 92122 2,100,000 2,100,000 30 / 360
Conti Herndon Virginia 22070 94,231 2,100,000 2,092,742 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Dallas Texas 75237 2,100,000 2,078,843 30 / 360
GMAC Murray Utah 84107 189,198,207,214,233,234,239,241,248,3192,040,0002,036,526 30
/ 360
GMAC Taylorsville Utah 84123 189,198,207,214,233,234,239,241,248,3192,000,0002,000,000 30
/ 360
Conti Cincinnati Ohio 45202 2,000,000 1,998,289 30 / 360
GMAC Phoenix Arizona 85008 2,000,000 1,998,030 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Westtown Township Pennsylvania 19382 2,000,000 1,994,381 30 / 360
GACC Philadelphia Pennsylvania 19118 1,975,000 1,975,000 30 / 360
GMAC Salt Lake City Utah 84117 189,198,207,214,233,234,239,241,248,3191,975,0001,971,636 30
/ 360
GMAC Philadelphia Pennsylvania 19147 1,950,000 1,947,711 30 / 360
GMAC Salt Lake City Utah 84117 189,198,207,214,233,234,239,241,248,3191,930,0001,926,713 30
/ 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Santa Ana California 92704 1,925,000 1,921,762 30 / 360
Conti Oceanside California 92054 1,875,000 1,868,257 30 / 360
GMAC Seabrook Texas 77586 244,295 1,860,000 1,852,343 30 / 360
GMAC Various Various Various 1,850,000 1,847,871 Actual / 360
GMAC Long Beach California 90813
<PAGE>
CUT-OFF
LOAN ZIP CROSSED LOAN ORIGINAL DATE ACCRUAL
SOURCE CITY STATE CODE CONTROL NUMBERS BALANCE BALANCE METHOD
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------
GMAC Baldwin Park California 91706
Conti Bradenton Florida 34210 174,175,246 $1,850,000 $1,841,071 30 / 360
Conti Cerritos California 90703 1,850,000 1,835,309 30 / 360
GMAC Murray Utah 84107 189,198,207,214,233,234,239,241,248,3191,800,0001,796,934 30
/ 360
Conti Fairfield Connecticut 06430 1,770,000 1,758,303 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Paul Revere Bristol Pennsylvania 19007 95,250,254,287 1,810,000 1,756,166 30 / 360
GMAC Harrisburg Pennsylvania 17102 1,760,000 1,751,374 30 / 360
Conti Sun Valley California 91352 1,750,000 1,747,462 30 / 360
Conti Hyde Park New York 12538 1,730,000 1,728,520 30 / 360
Paul Revere Burlington New Jersey 08016 95,250,254,287 1,780,000 1,727,058 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti St. George Utah 84770 1,725,000 1,721,964 30 / 360
Conti Tucson Arizona 85715 1,700,000 1,700,000 30 / 360
Conti Glendale California 91205 1,700,000 1,698,452 30 / 360
Boston Capital Woburn Massachusetts 01801 1,700,000 1,695,421 30 / 360
GMAC Minot North Dakota 58701 1,750,000 1,694,868 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GACC Lindenwold New Jersey 08021 1,650,000 1,644,418 30 / 360
Conti Irving Texas 75061 1,616,000 1,616,000 30 / 360
Conti Okeechobee Florida 34974 1,600,000 1,600,000 30 / 360
GACC Philadelphia Pennsylvania 19118 1,550,000 1,550,000 30 / 360
GMAC Dickinson North Dakota 58602 167,205,228,264,294 1,595,000 1,544,751 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Torrington Connecticut 06790 1,530,000 1,523,367 Actual / 360
Conti Vallejo California 94589 1,525,000 1,519,516 30 / 360
GMAC Hamilton Township New Jersey 08609 1,500,000 1,494,738 30 / 360
Conti Orlando Florida 32819 1,490,000 1,440,333 Actual / 360
GMAC Highlandtown Maryland 21224 1,462,500 1,457,395 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Bismarck North Dakota 58501 1,470,000 1,423,689 30 / 360
GMAC Spokane Washington 99208 1,421,830 1,413,715 30 / 360
GMAC Porterville California 93257 1,400,000 1,400,000 30 / 360
Conti Boise Idaho 83705 1,400,000 1,400,000 30 / 360
Boston Capital La Jolla California 92037 1,400,000 1,400,000 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Boston Capital Provo Utah 84606 1,400,000 1,400,000 30 / 360
Conti Dallas Texas 75229 1,400,000 1,398,725 30 / 360
Conti Sacramento California 95842 1,400,000 1,397,545 30 / 360
GMAC Fort Worth Texas 76133 1,400,000 1,397,596 30 / 360
Conti Chico California 95973 1,400,000 1,397,555 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Van Nuys California 91401 1,400,000 1,396,670 30 / 360
Conti Federal Way Washington 98003 1,400,000 1,396,226 30 / 360
GMAC Des Moines Iowa 50317 1,395,000 1,378,320 30 / 360
Paul Revere Laurel Maryland 20707 1,800,000 1,375,215 Actual / 360
Boston Capital McKinney Texas 75069 1,375,000 1,368,713 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Orange Park Florida 32073 200,286 1,375,000 1,367,548 30 / 360
Paul Revere West Whiteland Pennsylvania 19380 95,250,254,287 1,410,000 1,368,063 30 / 360
Conti Rensselaer Indiana 47978 1,360,000 1,356,843 30 / 360
Paul Revere Billerica Massachusetts 01821 1,500,000 1,358,319 Actual / 360
Conti Baldwin Park California 91706 1,350,000 1,347,796 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Brooklyn New York 11229 1,350,000 1,347,532 30 / 360
Conti Little Rock Arkansas 72205 1,340,000 1,323,189 30 / 360
Conti Reidsville North Carolina 27320 1,300,000 1,298,022 30 / 360
GMAC Sioux Falls South Dakota 57106 167,205,228,264,294 1,323,000 1,294,071 30 / 360
GMAC Little Rock Arkansas 72209 244,295 1,260,000 1,255,198 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Waxahachie Texas 75165 1,250,000 1,245,020 30 / 360
GMAC College Place Washington 99324 1,250,000 1,245,022 Actual / 360
Conti Indianapolis Indiana 46214 1,250,000 1,244,940 30 / 360
Conti San Francisco California 94107 1,200,000 1,198,938 30 / 360
Conti Brooklyn New York 11212 1,200,000 1,198,314 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Milford Pennsylvania 18337 1,200,000 1,197,963 30 / 360
GMAC Philadelphia Pennsylvania 19106 1,200,000 1,195,543 30 / 360
Boston Capital Pantego Texas 76013 1,160,000 1,154,809 30 / 360
Boston Capital Bronx New York 10462 1,152,000 1,150,122 30 / 360
GMAC Washington District of Columbia 20032 1,150,000 1,147,854 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Spokane Washington 99203 1,140,000 1,133,494 30 / 360
Conti Mesquite Texas 75150 1,125,000 1,123,997 30 / 360
Conti Kissimmee Florida 34741 1,100,000 1,094,703 30 / 360
Conti Oxnard California 93030 1,100,000 1,090,292 30 / 360
Conti Los Angeles California 90027 1,100,000 1,085,873 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
GMAC Aurora Colorado 80014 1,068,000 1,064,253 30 / 360
Conti Killeen Texas 76541 1,050,000 1,048,351 30 / 360
GMAC Jackson Wyoming 83001 1,000,000 991,879 30 / 360
Conti New York New York 10012 1,000,000 991,672 30 / 360
Conti Richmond Hill Georgia 31324 1,000,000 988,127 30 / 360
<PAGE>
CUT-OFF
LOAN ZIP CROSSED LOAN ORIGINAL DATE ACCRUAL
SOURCE CITY STATE CODE CONTROL NUMBERS BALANCE BALANCE METHOD
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Apache Junction Arizona 85220 $975,000 $973,493 30 / 360
Conti Littleton Colorado 80123 975,000 972,582 30 / 360
Conti Anaheim California 92804 934,500 932,756 30 / 360
GMAC Taylorsville Utah 84123 189,198,207,214,233,234,239,241,248,319925,000923,425 30 /
360
Conti Brooklyn New York 11212 825,000 822,853 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Southgate California 90280 825,000 812,224 30 / 360
Conti Alpine California 91901 800,000 798,137 30 / 360
Conti Killeen Texas 76543 800,000 797,956 30 / 360
Conti Fairfield Connecticut 06430 767,000 761,931 30 / 360
Conti Albuquerque New Mexico 87108 750,000 750,000 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Dallas Texas 75217 750,000 748,186 30 / 360
Conti Albuquerque New Mexico 87108 750,000 746,075 30 / 360
Conti Peachtree City Georgia 30269 740,000 738,277 30 / 360
Conti Glendale Arizona 85301 715,000 714,362 30 / 360
Conti Toledo Ohio 43615 700,000 698,119 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Brooklyn New York 11226 647,000 639,811 Actual / 360
Conti Granada Hills California 91344 630,000 624,139 30 / 360
Conti Costa Mesa California 92627 625,000 612,034 30 / 360
Conti Brooklyn New York 11211 615,000 610,187 30 / 360
Conti Astoria New York 11105 600,000 598,697 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Grand Island New York 14072 575,000 573,429 30 / 360
Conti Brooklyn New York 11226 558,000 551,800 Actual / 360
Conti Portland Oregon 97201 535,000 522,413 30 / 360
Conti Ridgewood New York 11385 500,000 497,060 30 / 360
Conti Wilmington California 90744 490,000 486,165 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Scranton Pennsylvania 18503 450,000 448,264 30 / 360
Conti Atlanta Georgia 30318 435,000 434,338 30 / 360
Conti Kissimmee Florida 34746 434,000 430,554 30 / 360
Conti Bridgeport Connecticut 06604 425,000 422,820 30 / 360
Conti Stamford Connecticut 06901 400,000 394,052 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Vancouver Washington 98660 370,000 369,677 30 / 360
Conti Tarzana California 91356 375,000 369,538 30 / 360
Conti Beverly Hills California 90211 350,000 348,976 30 / 360
Conti New Canaan Connecticut 06840 350,000 347,318 30 / 360
Conti Norwalk Connecticut 06854 300,000 294,513 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Dallas Texas 75206 290,000 287,931 30 / 360
Conti Santa Ana California 92704 282,000 276,908 30 / 360
Conti Brooklyn New York 11217 257,000 247,814 30 / 360
Conti Somerset New York 14012 225,000 225,000 30 / 360
Conti Portland Oregon 97213 185,000 184,760 30 / 360
- -------------- ------------------- -------------------- ------- ------------------- ----------- ----------- ------------ -
Conti Melbourne Florida 32901 165,000 162,976 30 / 360
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ORIGINAL REMAINING
TERM TO TERM TO ORIGINAL REMAINING MATURITY MATURITY
MORTGAGE SERVICING MATURITY MATURITY AMORTIZATION AMORTIZATION ORIGINATION DATE OR ARD
RATE FEE RATE OR ARD OR ARD TERM TERM DATE OR ARD BALANCE
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
8.99000% 0.0300% 120 118 360 358 6/10/97 7/1/07 35,765,474
7.83000% 0.1550% 270 269 270 269 7/30/97 1/31/20 0
9.01000% 0.0300% 120 120 300 300 8/29/97 9/1/07 25,655,045
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.40800% 0.0300% 120 119 360 359 7/24/97 8/1/07 22,995,665
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.54000% 0.1350% 120 119 312 311 7/24/97 8/1/07 19,991,038
8.18000% 0.0300% 120 119 360 359 8/1/97 8/1/07 19,810,494
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.35000% 0.1350% 120 118 300 300 6/30/97 7/1/07 18,500,078
8.62500% 0.1350% 120 117 360 357 5/30/97 6/1/07 19,095,020
7.80000% 0.1000% 338 276 338 276 6/25/92 9/1/20 793,297
8.47000% 0.0300% 132 129 360 360 5/29/97 6/1/08 17,710,390
7.99500% 0.0300% 120 119 360 359 7/17/97 8/1/07 17,455,416
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.37000% 0.1350% 120 116 300 296 4/30/97 5/1/07 16,060,516
8.54000% 0.1350% 120 119 312 311 7/24/97 8/1/07 16,038,315
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.23000% 0.1350% 120 119 300 299 7/9/97 8/1/07 15,348,664
8.46000% 0.1400% 300 300 300 300 8/5/97 9/1/22 0
9.50000% 0.1550% 121 62 244 185 9/25/92 10/31/02 13,809,030
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.85000% 0.1000% 119 92 300 273 5/1/95 4/30/05 13,262,330
8.50000% 0.0300% 120 119 360 359 7/28/97 8/1/07 13,511,888
8.12500% 0.1400% 120 119 300 299 7/31/97 8/1/07 12,152,811
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.70300% 0.0300% 120 115 360 360 3/25/97 4/1/07 12,877,231
7.99000% 0.1350% 180 179 288 287 7/28/97 8/1/12 8,406,321
8.94000% 0.1350% 120 114 360 354 2/28/97 3/1/07 12,283,302
8.76000% 0.1350% 180 178 313 311 7/1/97 7/1/12 9,323,112
8.10000% 0.1000% 156 136 300 280 12/5/95 1/1/09 9,480,729
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.06000% 0.1350% 240 235 300 295 3/21/97 4/1/17 5,131,862
8.42000% 0.0300% 120 118 360 358 6/4/97 7/1/07 11,058,215
8.01000% 0.0650% 120 120 360 360 8/14/97 9/1/07 10,485,260
8.36700% 0.1400% 84 77 360 353 1/2/97 2/1/04 11,150,761
9.53000% 0.0300% 120 117 300 297 5/13/97 6/1/07 9,879,433
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.91000% 0.1400% 60 49 360 349 9/16/96 10/1/01 11,114,209
9.12500% 0.1400% 84 83 300 299 7/18/97 8/1/04 10,235,037
8.23500% 0.0300% 120 118 360 358 6/18/97 7/1/07 10,048,464
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.65000% 0.1000% 240 191 240 191 7/14/93 8/1/13 0
7.65000% 0.1000% 180 160 180 160 12/15/95 1/1/11 0
8.09200% 0.0300% 117 117 300 300 8/20/97 6/1/07 8,980,221
8.13000% 0.0300% 120 120 360 360 8/28/97 9/1/07 9,323,536
8.62200% 0.0300% 120 118 360 358 6/4/97 7/1/07 9,236,135
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.88000% 0.1550% 264 263 264 263 7/30/97 7/31/19 0
9.65000% 0.1000% 228 202 252 226 5/31/95 6/10/14 0
7.68000% 0.0300% 120 120 360 360 8/27/97 10/1/07 8,974,980
8.50000% 0.0300% 120 119 360 359 7/22/97 8/1/07 9,064,040
9.00000% 0.1400% 120 117 336 333 5/15/97 6/1/07 8,760,593
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.62500% 0.1350% 120 113 300 293 1/30/97 2/1/07 8,389,595
8.37500% 0.1000% 120 75 252 207 11/30/93 12/1/03 7,557,070
8.10000% 0.0300% 120 120 300 300 8/5/97 9/1/07 7,691,945
8.87500% 0.1350% 240 238 300 298 6/12/97 7/1/17 3,812,595
7.88000% 0.1550% 264 263 264 263 7/30/97 7/31/19 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.37500% 0.1350% 84 75 300 291 11/15/96 12/1/03 8,357,381
9.00000% 0.1400% 84 82 360 358 6/17/97 7/1/04 8,427,641
8.51000% 0.0650% 96 96 300 300 8/8/97 9/1/05 7,157,606
9.55000% 0.1000% 180 153 180 153 5/22/95 6/1/10 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
<PAGE>
9.78000% 0.1000% 120 89 240 209 12/29/94 1/15/05 5,976,924
8.13000% 0.0300% 120 120 360 360 8/28/97 9/1/07 7,036,631
8.13000% 0.0300% 120 120 360 360 8/28/97 9/1/07 7,036,631
7.83000% 0.0650% 120 119 360 359 7/29/97 8/1/07 6,993,159
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.87500% 0.1350% 240 238 300 298 6/12/97 7/1/17 3,210,604
7.88000% 0.1550% 264 263 264 263 7/30/97 7/31/19 0
9.92200% 0.0300% 120 116 300 296 4/25/97 5/1/07 6,585,128
8.78000% 0.0300% 120 112 300 292 12/4/96 1/1/07 6,297,309
7.80000% 0.0300% 120 120 360 360 8/21/97 9/1/07 6,551,932
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.18700% 0.1400% 120 119 300 299 7/31/97 8/1/07 6,004,696
7.97000% 0.1350% 120 119 360 360 7/23/97 8/1/07 6,718,477
8.03000% 0.0650% 120 120 324 324 8/28/97 9/1/07 6,134,220
7.50000% 0.1000% 193 62 437 306 9/29/86 11/1/02 6,336,361
8.86000% 0.0650% 84 74 300 290 11/1/96 11/1/03 6,483,447
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.00000% 0.1400% 120 117 360 357 5/19/97 6/1/07 6,322,638
9.09000% 0.1350% 120 113 240 233 1/15/97 2/1/07 4,984,656
9.00000% 0.1400% 120 117 300 297 5/16/97 6/1/07 5,626,268
8.80000% 0.1000% 291 267 291 267 7/13/95 11/15/19 0
8.73000% 0.0300% 180 178 360 358 6/9/97 7/1/12 5,270,455
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.00000% 0.1350% 120 115 300 295 3/18/97 4/1/07 5,543,528
9.08000% 0.0650% 120 113 300 293 1/31/97 2/1/07 5,553,672
8.10000% 0.0300% 120 120 300 300 8/5/97 9/1/07 5,303,394
8.88000% 0.0300% 119 117 300 298 6/5/97 6/1/07 5,311,206
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.04000% 0.1350% 120 115 300 295 3/24/97 4/1/07 5,316,727
8.70000% 0.1000% 180 130 180 130 6/10/93 7/1/08 0
9.17500% 0.1400% 120 118 300 298 6/26/97 7/1/07 5,274,892
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.85000% 0.1000% 252 209 252 209 2/1/94 2/1/15 0
8.88000% 0.1000% 299 272 299 272 4/28/95 5/1/20 0
8.72000% 0.0300% 120 117 336 333 5/29/97 6/1/07 5,200,743
9.18750% 0.1400% 120 117 300 297 5/14/97 6/1/07 4,985,609
8.90000% 0.1000% 264 234 264 234 2/27/95 3/1/17 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.66000% 0.1400% 60 49 359 348 9/16/96 10/1/01 5,626,056
9.25000% 0.1350% 120 116 360 356 4/24/97 5/1/07 5,120,013
7.85000% 0.1000% 192 150 192 150 2/9/94 3/1/10 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.97000% 0.1350% 120 119 360 360 7/23/97 8/1/07 5,039,995
8.80000% 0.1000% 290 253 290 253 7/29/94 10/1/18 0
8.10000% 0.0300% 120 120 300 300 8/5/97 9/1/07 4,453,232
8.75000% 0.1350% 120 117 360 357 5/28/97 6/1/07 4,896,232
7.62500% 0.1000% 103 62 300 259 3/17/94 10/31/02 4,831,963
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
10.25400% 0.0300% 120 116 180 176 4/17/97 5/1/07 2,805,549
8.77000% 0.1350% 120 118 360 358 6/11/97 7/1/07 4,808,994
9.03000% 0.1350% 120 117 324 321 5/15/97 6/1/07 4,638,752
9.06000% 0.1400% 120 116 300 296 4/7/97 5/1/07 4,474,056
7.50000% 0.1000% 120 102 258 240 2/20/96 3/1/06 3,992,413
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.88000% 0.1000% 299 272 299 272 4/28/95 5/1/20 0
9.17000% 0.1000% 84 53 300 269 12/29/94 12/29/01 4,925,815
8.81000% 0.1400% 84 73 359 348 9/16/96 10/1/03 4,865,495
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.27000% 0.1000% 120 103 300 283 3/7/96 4/1/06 4,159,238
8.78000% 0.1350% 240 239 240 239 7/23/97 8/1/17 0
8.32000% 0.1350% 120 119 311 310 7/3/97 8/1/07 4,241,709
8.56250% 0.1400% 120 119 300 299 7/9/97 8/1/07 4,176,582
8.66000% 0.0300% 180 178 360 360 6/13/97 7/1/12 4,233,855
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.78000% 0.1350% 120 119 313 312 7/2/97 8/1/07 4,253,722
8.95000% 0.1350% 120 118 324 322 6/4/97 7/1/07 4,287,974
9.05000% 0.1350% 84 77 300 293 1/15/97 2/1/04 4,484,087
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
<PAGE>
8.70000% 0.1350% 120 113 300 293 1/13/97 2/1/07 4,108,133
9.05000% 0.1350% 84 72 264 252 8/12/96 9/1/03 4,289,688
7.75000% 0.1000% 120 98 300 278 10/18/95 11/1/05 4,036,335
8.66000% 0.0300% 180 178 360 360 6/13/97 7/1/12 4,062,580
8.70000% 0.1350% 120 113 360 353 1/29/97 2/1/07 4,313,563
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.26000% 0.1000% 240 232 240 232 12/19/96 1/1/17 0
9.25000% 0.1350% 120 120 300 300 8/13/97 9/1/07 3,994,037
8.67000% 0.1400% 120 120 300 300 8/19/97 9/1/07 3,908,162
8.57000% 0.1350% 120 118 360 358 6/30/97 7/1/07 4,209,829
7.97000% 0.1350% 120 119 360 360 7/23/97 8/1/07 4,307,649
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.37500% 0.1400% 120 119 300 299 7/25/97 8/1/07 3,831,551
8.90000% 0.1000% 264 234 264 234 2/27/97 3/1/17 0
8.53000% 0.1350% 360 358 360 358 6/30/97 7/1/27 0
8.81000% 0.1000% 252 235 252 235 3/29/96 4/1/17 0
9.04000% 0.0650% 120 115 300 295 4/1/97 4/1/07 3,791,272
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.25000% 0.1350% 120 117 300 297 5/21/97 6/1/07 3,786,016
8.00000% 0.1400% 120 120 360 360 8/22/97 9/1/07 3,947,611
8.31200% 0.1400% 120 119 300 299 7/30/97 8/1/07 3,662,836
8.70000% 0.1350% 120 117 360 357 5/28/97 6/1/07 4,002,275
9.10000% 0.1350% 84 79 360 355 2/28/97 4/1/04 4,078,041
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.00000% 0.1350% 120 115 300 295 3/18/97 4/1/07 3,557,788
8.77000% 0.0650% 120 114 300 294 2/27/97 3/1/07 3,538,833
9.50000% 0.1350% 120 117 300 297 5/2/97 6/1/07 3,555,950
8.69000% 0.0300% 84 82 300 298 6/12/97 7/1/04 3,683,720
7.95000% 0.1000% 120 98 300 278 10/6/95 11/1/05 3,399,838
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.74000% 0.1000% 240 215 266 241 6/21/95 7/15/15 431,598
7.55000% 0.0300% 179 159 264 244 12/18/95 12/1/10 2,142,583
9.12500% 0.1000% 120 84 240 204 8/31/94 9/1/04 3,065,061
8.66000% 0.0300% 180 178 360 360 6/13/97 7/1/12 3,350,852
7.97000% 0.1350% 120 119 360 360 7/23/97 8/1/07 3,647,173
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.55000% 0.0300% 179 159 264 244 12/18/95 12/1/10 2,114,504
8.66000% 0.0300% 180 178 360 360 6/13/97 7/1/12 3,326,057
8.58000% 0.1350% 120 119 300 299 7/23/97 8/1/07 3,277,126
8.58000% 0.1350% 120 119 300 299 7/23/97 8/1/07 3,277,126
8.91000% 0.0650% 120 116 300 296 4/30/97 5/1/07 3,302,708
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.68000% 0.0300% 168 165 168 165 5/30/97 6/1/11 0
8.52000% 0.1350% 144 134 360 350 10/17/96 11/1/08 3,334,720
8.78000% 0.1350% 120 119 360 359 7/24/97 8/1/07 3,473,805
7.40000% 0.1000% 114 97 114 97 3/11/96 10/1/05 0
8.60700% 0.0300% 120 117 300 297 5/15/97 6/1/07 3,156,273
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.12000% 0.0650% 240 237 240 237 5/21/97 6/1/17 0
7.98000% 0.1350% 144 135 360 351 11/25/96 12/1/08 3,185,120
9.81000% 0.0300% 120 117 300 297 5/20/97 6/1/07 3,158,509
8.92300% 0.0300% 120 115 360 355 3/10/97 4/1/07 3,348,959
9.09000% 0.1400% 180 177 300 297 5/16/97 6/1/12 2,490,964
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.96000% 0.1350% 120 117 360 357 5/21/97 6/1/07 3,328,862
7.85000% 0.1400% 120 119 300 299 7/25/97 8/1/07 2,976,783
8.86000% 0.1350% 120 115 300 295 3/3/97 4/1/07 3,059,707
7.97000% 0.1350% 120 119 360 360 7/23/97 8/1/07 3,356,964
8.90000% 0.1000% 264 234 264 234 2/27/95 3/1/17 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.52500% 0.1400% 120 120 300 300 8/26/97 9/1/07 2,945,517
8.56000% 0.0650% 94 93 300 299 7/30/97 6/1/05 3,139,715
8.75000% 0.1400% 180 179 240 239 7/8/97 8/1/12 1,542,314
9.20000% 0.1350% 120 116 330 326 4/10/97 5/1/07 3,127,524
8.25000% 0.1400% 120 119 300 299 7/11/97 8/1/07 2,894,900
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.96000% 0.1350% 120 115 300 295 4/1/97 4/1/07 2,934,542
9.01120% 0.0300% 84 80 300 296 4/18/97 5/1/04 3,172,905
8.90000% 0.1000% 264 234 264 234 2/27/95 3/1/17 0
8.25000% 0.1400% 120 119 300 299 7/31/97 8/1/07 2,844,511
8.75000% 0.1400% 180 179 240 239 7/8/97 8/1/12 1,498,741
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.88130% 0.1350% 120 103 240 223 3/4/96 4/1/06 2,447,133
8.37500% 0.1400% 120 118 300 298 6/27/97 7/1/07 2,812,522
7.95000% 0.1000% 120 99 300 279 11/21/95 12/1/05 2,823,114
9.37500% 0.1000% 283 254 288 259 3/3/95 11/1/18 272,418
9.21400% 0.1400% 180 180 180 180 8/26/97 9/1/12 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.08000% 0.0300% 120 116 300 296 4/18/97 5/1/07 2,818,282
9.07000% 0.1350% 119 115 300 296 4/18/97 4/1/07 2,824,984
8.75000% 0.1400% 120 115 300 295 3/11/97 4/1/07 2,795,918
8.75000% 0.1400% 120 115 300 295 3/11/97 4/1/07 2,795,918
8.37500% 0.1400% 120 120 300 300 8/7/97 9/1/07 2,731,000
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
<PAGE>
7.97000% 0.1350% 120 119 360 360 7/23/97 8/1/07 3,021,268
8.67000% 0.1350% 120 119 300 299 7/18/97 8/1/07 2,676,598
9.02000% 0.1000% 294 264 294 264 3/6/95 9/1/19 0
9.00000% 0.1350% 120 113 300 293 1/16/97 2/1/07 2,647,655
7.50000% 0.1000% 120 102 258 240 2/20/96 3/1/06 2,355,106
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.98000% 0.1350% 144 135 360 351 11/25/96 12/1/08 2,661,252
7.46000% 0.1400% 120 120 360 360 8/22/97 9/1/07 2,705,612
8.63000% 0.0300% 116 115 300 299 7/29/97 4/1/07 2,570,106
9.62500% 0.1400% 120 116 300 296 4/25/97 5/1/07 2,516,879
9.94000% 0.1400% 120 114 298 292 2/4/97 3/1/07 2,532,043
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.36000% 0.1350% 120 114 360 354 2/4/97 3/1/07 2,650,857
9.01000% 0.0650% 120 115 300 295 3/24/97 4/1/07 2,482,746
8.85000% 0.1350% 120 117 360 357 5/19/97 6/1/07 2,635,471
7.55000% 0.0300% 179 159 264 244 12/18/95 12/1/10 1,547,570
8.50000% 0.1350% 120 119 360 359 7/17/97 8/1/07 2,591,624
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.95000% 0.0300% 120 117 360 357 5/29/97 6/1/07 2,613,465
8.30000% 0.0650% 120 120 300 300 8/27/97 10/1/07 2,359,797
7.96700% 0.0300% 120 119 300 299 7/14/97 8/1/07 2,340,169
9.12500% 0.1400% 180 178 300 298 6/30/97 7/1/12 1,930,489
9.25000% 0.1400% 120 117 300 297 5/19/97 6/1/07 2,413,064
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.33000% 0.1350% 240 235 240 235 3/20/97 4/1/17 0
8.85000% 0.1350% 120 117 360 357 5/19/97 6/1/07 2,559,662
8.49000% 0.0650% 120 118 300 298 7/1/97 7/1/07 2,329,898
9.87500% 0.1400% 120 116 240 236 4/22/97 5/1/07 2,056,018
7.83000% 0.0650% 120 120 360 360 8/25/97 9/1/07 2,419,633
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.00000% 0.1400% 120 115 300 295 3/26/97 4/1/07 2,267,055
9.00000% 0.1350% 120 118 360 358 6/19/97 7/1/07 2,375,254
7.97000% 0.1350% 120 119 360 360 7/23/97 8/1/07 2,401,730
7.88130% 0.1350% 120 103 240 223 3/4/96 4/1/06 1,853,369
7.55000% 0.0300% 179 159 264 244 12/18/95 12/1/10 1,379,020
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.85000% 0.1350% 120 117 360 357 5/19/97 6/1/07 2,323,317
7.81000% 0.1350% 144 136 360 352 12/23/96 1/1/09 2,118,914
9.87500% 0.1400% 84 79 300 295 3/20/97 4/1/04 2,290,822
8.37500% 0.1400% 120 120 300 300 8/7/97 9/1/07 2,038,060
9.50000% 0.1400% 120 120 240 240 8/25/97 9/1/07 1,800,906
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.61000% 0.0650% 120 119 360 359 7/22/97 8/1/07 2,219,721
8.40500% 0.0300% 116 115 300 299 7/7/97 4/1/07 2,061,903
8.85000% 0.1350% 120 117 360 357 5/19/97 6/1/07 2,140,484
9.00000% 0.1400% 120 118 300 298 6/9/97 7/1/07 1,985,742
8.50000% 0.1400% 120 118 300 298 6/26/97 7/1/07 1,962,494
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.12500% 0.1350% 120 115 360 355 3/27/97 4/1/07 2,151,091
8.37500% 0.1400% 120 120 300 300 8/7/97 9/1/07 1,915,776
9.13000% 0.1400% 120 118 300 298 6/9/97 7/1/07 1,908,650
9.12000% 0.0650% 120 118 300 298 6/9/97 7/1/07 1,908,217
7.88000% 0.1550% 264 263 264 263 7/30/97 7/31/19 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.12500% 0.1400% 120 117 300 297 5/21/97 6/1/07 1,879,393
8.90000% 0.1000% 264 234 264 234 2/27/95 3/1/17 0
8.50000% 0.1400% 180 179 180 179 7/30/97 8/1/12 0
8.82000% 0.1350% 119 113 300 294 2/13/97 2/1/07 1,858,829
7.95000% 0.0650% 120 120 360 360 8/27/97 9/1/07 1,954,240
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.50000% 0.1400% 84 81 300 297 5/13/97 6/1/04 1,985,856
7.88130% 0.1350% 120 103 240 223 3/4/96 4/1/06 1,544,474
8.89000% 0.0650% 78 75 204 201 5/27/97 12/1/03 1,657,286
8.36000% 0.0650% 120 120 360 360 8/29/97 9/1/07 1,855,600
9.26000% 0.1400% 120 116 300 296 4/7/97 5/1/07 1,747,782
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.62500% 0.1400% 84 72 300 288 8/7/96 9/1/03 1,898,899
8.85000% 0.1350% 120 117 360 357 5/19/97 6/1/07 1,819,411
8.21000% 0.1350% 117 117 360 360 8/19/97 6/1/07 1,770,617
9.25000% 0.1400% 84 83 300 299 7/29/97 8/1/04 1,798,896
8.40000% 0.1350% 120 119 300 299 7/22/97 8/1/07 1,631,443
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.75000% 0.1350% 84 81 300 297 5/29/97 6/1/04 1,785,541
7.74000% 0.0300% 120 120 264 264 8/20/97 9/1/07 1,459,903
8.85000% 0.1350% 120 117 360 357 5/19/97 6/1/07 1,761,440
8.67000% 0.1350% 120 118 360 358 6/18/97 7/1/07 1,733,343
8.85000% 0.1350% 120 117 360 357 5/19/97 6/1/07 1,721,306
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.37500% 0.1400% 84 82 300 298 6/30/97 7/1/04 1,734,551
9.02000% 0.1400% 120 116 300 296 4/2/97 5/1/07 1,552,072
8.75000% 0.1350% 120 113 360 353 1/23/97 2/1/07 1,655,816
9.40000% 0.1350% 119 117 315 313 6/2/97 6/3/07 1,588,097
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
<PAGE>
8.75000% 0.1400% 120 115 300 295 3/11/97 4/1/07 1,521,638
9.25000% 0.1400% 84 75 300 291 11/18/96 12/1/03 1,663,979
8.85000% 0.1350% 120 117 360 357 5/19/97 6/1/07 1,605,363
9.62500% 0.1400% 119 111 300 292 12/19/96 12/1/06 1,488,637
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.50000% 0.1000% 120 102 258 240 2/20/96 3/1/06 1,305,559
8.83000% 0.1350% 120 113 336 329 1/31/97 2/1/07 1,528,971
9.25000% 0.1400% 240 239 240 239 7/11/97 8/1/17 0
9.25000% 0.1400% 120 119 300 299 7/24/97 8/1/07 1,439,518
7.50000% 0.1000% 120 102 258 240 2/20/96 3/1/06 1,283,920
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.10300% 0.1400% 120 118 300 298 6/2/97 7/1/07 1,430,611
9.25000% 0.1400% 120 120 300 300 8/12/97 9/1/07 1,414,555
8.87500% 0.1400% 120 119 300 299 7/25/97 8/1/07 1,402,512
8.64000% 0.0650% 120 118 258 256 7/1/97 7/1/07 1,267,447
7.88130% 0.1350% 120 103 240 223 3/4/96 4/1/06 1,201,257
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.38800% 0.0300% 120 116 300 296 4/17/97 5/1/07 1,377,163
8.50000% 0.1400% 120 120 300 300 8/1/97 9/1/07 1,321,412
8.87500% 0.1400% 180 180 300 300 8/8/97 9/1/12 1,054,795
7.74000% 0.0300% 120 120 264 264 8/20/97 9/1/07 1,145,747
7.88130% 0.1350% 120 103 240 223 3/4/96 4/1/06 1,094,860
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.10000% 0.1350% 120 113 313 307 1/31/97 2/28/07 1,304,516
9.02000% 0.1400% 120 116 300 296 4/2/97 5/1/07 1,262,352
9.17000% 0.1350% 180 176 300 296 4/10/97 5/1/12 1,000,257
9.12500% 0.1400% 120 112 240 232 12/27/96 1/1/07 745,000
9.20000% 0.1350% 120 116 300 296 4/28/97 5/1/07 1,215,571
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.88130% 0.1350% 122 105 240 223 3/4/96 6/1/06 997,915
7.81000% 0.1350% 144 136 360 352 12/23/96 1/1/09 1,186,462
8.74000% 0.1350% 84 84 360 360 8/8/97 9/1/04 1,306,948
8.62500% 0.1400% 120 120 240 240 8/29/97 9/1/07 983,554
8.29000% 0.0650% 120 120 300 300 8/26/97 9/1/07 1,138,931
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.93000% 0.0650% 120 120 348 348 8/27/97 9/1/07 1,210,482
8.87500% 0.1400% 120 119 300 299 7/22/97 8/1/07 1,155,010
9.12500% 0.1400% 120 118 300 298 6/12/97 7/1/07 1,161,655
8.81000% 0.1350% 84 81 360 357 5/9/97 6/1/04 1,308,045
9.15000% 0.1400% 120 118 300 298 6/19/97 7/1/07 1,162,312
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.75000% 0.1350% 120 117 300 297 5/5/97 6/1/07 1,177,683
9.00000% 0.1400% 120 117 300 297 5/30/97 6/1/07 1,158,349
9.09000% 0.1350% 84 71 300 287 8/1/96 8/1/03 1,251,801
9.00000% 0.1000% 204 56 360 212 4/25/85 5/1/02 1,196,508
8.94000% 0.0650% 120 115 300 295 3/31/97 4/1/07 1,136,094
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.87500% 0.1400% 120 116 240 236 4/22/97 5/1/07 1,000,717
7.50000% 0.1000% 120 102 258 240 2/20/96 3/1/06 1,017,038
11.00000% 0.1400% 240 238 240 238 6/25/97 7/1/17 0
8.25000% 0.1000% 154 20 180 46 6/23/86 4/19/99 1,266,423
8.31200% 0.1400% 240 239 240 239 7/31/97 8/1/17 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.87500% 0.1400% 120 118 300 298 6/27/97 7/1/07 1,113,759
9.75000% 0.1400% 180 175 180 175 3/27/97 4/1/12 0
8.87500% 0.1400% 240 239 240 239 7/8/97 8/1/17 0
7.81880% 0.1350% 120 108 240 228 8/29/96 9/1/06 906,718
9.12500% 0.1350% 120 113 360 353 1/23/97 2/1/07 1,129,323
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
10.00000% 0.1400% 120 117 240 237 5/13/97 6/1/07 912,804
8.75000% 0.1350% 120 115 313 308 3/7/97 3/31/07 1,054,496
9.87500% 0.1400% 240 237 240 237 5/29/97 6/1/17 0
9.04500% 0.1400% 120 119 300 299 7/9/97 8/1/07 993,894
9.50000% 0.1400% 240 239 240 239 7/16/97 8/1/17 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
8.00000% 0.1400% 120 119 240 239 7/30/97 8/1/07 827,288
9.25000% 0.1350% 120 113 360 353 1/15/97 2/1/07 1,077,896
9.07000% 0.0650% 120 115 300 295 3/19/97 4/1/07 961,313
9.06000% 0.0650% 120 117 360 357 5/13/97 6/1/07 1,031,336
8.75000% 0.1350% 120 118 300 298 6/30/97 7/1/07 945,987
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
7.81000% 0.1350% 144 136 360 352 12/23/96 1/1/09 951,285
9.00000% 0.1400% 120 119 300 299 7/14/97 8/1/07 930,816
9.75000% 0.1400% 240 234 300 294 2/12/97 3/1/17 464,041
9.87500% 0.1400% 120 109 300 289 9/24/96 10/1/06 927,762
10.00000% 0.1400% 84 68 300 284 4/23/96 5/1/03 999,727
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.17000% 0.1350% 120 116 300 296 5/1/97 5/1/07 887,079
8.62500% 0.1400% 180 179 240 239 7/16/97 8/1/12 446,881
8.75000% 0.1350% 120 108 360 348 8/26/96 9/1/06 889,560
9.62500% 0.1400% 180 170 300 290 10/3/96 11/1/11 678,338
10.25000% 0.1400% 180 171 240 231 11/19/96 12/1/11 459,350
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
<PAGE>
9.87500% 0.1400% 120 118 300 298 6/5/97 7/1/07 822,334
9.50000% 0.1400% 120 117 300 297 5/23/97 6/1/07 815,777
8.75000% 0.1400% 120 118 300 298 6/17/97 7/1/07 768,717
8.85000% 0.1350% 120 117 360 357 5/19/97 6/1/07 824,978
10.12500% 0.1400% 240 238 240 238 6/5/97 7/1/17 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.62500% 0.1400% 120 102 300 282 2/27/96 3/1/06 692,142
9.87500% 0.1400% 180 177 300 297 5/13/97 6/1/12 547,639
9.37500% 0.1400% 180 179 180 179 7/21/97 8/1/12 0
9.62500% 0.1400% 119 111 300 292 12/19/96 12/1/06 645,076
8.87500% 0.1400% 180 180 300 300 8/8/97 9/1/12 494,435
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.65000% 0.1400% 120 117 300 297 5/14/97 6/1/07 629,557
9.25000% 0.1400% 180 174 300 294 2/7/97 3/1/12 501,658
9.87500% 0.1400% 120 117 300 297 5/29/97 6/1/07 624,130
9.00000% 0.1400% 240 239 300 299 7/14/97 8/1/17 289,052
9.87500% 0.1400% 120 118 240 238 6/4/97 7/1/07 509,456
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.12500% 0.1400% 120 116 300 296 4/15/97 5/1/07 431,334
10.12500% 0.1400% 240 233 240 233 12/31/96 2/1/17 0
9.75000% 0.1400% 120 96 300 276 8/9/95 9/1/05 525,751
10.00000% 0.1400% 120 110 300 290 10/31/96 11/1/06 520,052
8.62500% 0.1400% 204 203 204 203 8/1/97 8/1/14 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.75000% 0.1400% 120 118 240 238 6/30/97 7/1/07 417,065
9.12500% 0.1400% 120 116 300 296 4/15/97 5/1/07 372,000
9.37500% 0.1400% 120 114 300 294 2/27/97 3/1/07 422,501
9.50000% 0.1400% 300 293 300 293 1/2/97 2/1/22 0
10.00000% 0.1400% 120 110 300 290 10/28/96 11/1/06 414,351
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
10.25000% 0.1400% 240 237 240 237 5/29/97 6/1/17 0
8.87500% 0.1400% 120 119 240 239 7/15/97 8/1/07 307,849
10.12500% 0.1400% 240 234 240 234 2/6/97 3/1/17 0
9.37500% 0.1400% 84 82 180 178 6/27/97 7/1/04 296,788
10.12500% 0.1400% 240 229 240 229 10/1/96 10/1/16 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.12500% 0.1400% 120 119 300 299 7/24/97 8/1/07 307,009
9.62500% 0.1400% 120 103 300 283 3/4/96 4/1/06 314,610
10.25000% 0.1400% 120 116 300 296 4/4/97 5/1/07 297,476
10.12500% 0.1400% 180 170 300 290 10/22/96 11/1/11 241,738
9.62500% 0.1400% 180 159 300 279 11/16/95 12/1/10 203,351
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
9.50000% 0.1400% 120 115 240 235 3/28/97 4/1/07 208,905
9.37500% 0.1400% 120 100 300 280 12/20/95 1/1/06 235,302
10.12500% 0.1400% 156 145 156 145 9/25/96 10/1/09 0
9.50000% 0.1400% 120 120 300 300 8/18/97 9/1/07 189,769
10.12500% 0.1400% 240 239 240 239 7/9/97 8/1/17 0
- --------- --------- -------- --------- ------------ ------------ ----------- -------- ----------
10.00000% 0.1400% 180 175 180 175 3/21/97 4/1/12 0
</TABLE>
<PAGE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
PROPERTY
TYPE PREPAYMENT PROVISIONS
- ------------------------------- -----------------------------------------------
<S> <C>
Office Lock/60_ greater than 1% or YM/54_0%/6
Office Lock/60_Def/210
Lock/36_Def/84
Skilled Nursing NAP
Skilled Nursing NAP
- ------------------------------- -----------------------------------------------
Skilled Nursing NAP
Skilled Nursing NAP
Skilled Nursing NAP
Skilled Nursing NAP
Industrial Lock/36_Def/78_0%/6
- ------------------------------- -----------------------------------------------
greater than 1% or YM/114_0%/6
Skilled Nursing NAP
Skilled Nursing NAP
Skilled Nursing NAP
Office Lock/60_Def/57_0%/3
- ------------------------------- -----------------------------------------------
Hospitality greater than 1% or YM/114_0%/6
Multifamily greater than 1% or YM/114_0%/6
Retail Lock/36_ greater than 1% or YM/299_0%/3
Multifamily Lock/60_ greater than 1% or YM/69_0%/3
Retail Lock/60_Def/55_0%/5
- ------------------------------- -----------------------------------------------
Hospitality greater than 1% or YM/114_0%/6
greater than 1% or YM/114_0%/6
Skilled Nursing NAP
Skilled Nursing NAP
Skilled Nursing NAP
- ------------------------------- -----------------------------------------------
Office greater than 1% or YM/114_0%/6
Retail Lock/60_ greater than 1% or YM/120_0%/120
Lock/59_6%/12_5%/12_4%/12_3%/12_2%/11_0%/3
Industrial NAP
Industrial NAP
- ------------------------------- -----------------------------------------------
Industrial NAP
Industrial NAP
Multifamily Lock/34_ greater than 1% or YM/82_0%/3
Office Lock/60/Def/57_0%/3
Retail Lock/48_ greater than 1% or YM/66_0%/6
- ------------------------------- -----------------------------------------------
Multifamily Lock/36_Def/81_0%/3
Office Lock/1_ greater than 1% or YM/143_0%/36
Office greater than 1% or YM/114_0%/6
Skilled Nursing greater than 1% or YM/96_0%/84
Skilled Nursing Lock/72_ greater than 1% or YM/81_0%/3
- ------------------------------- -----------------------------------------------
Hospitality greater than 1% or YM/180_0%/60
Retail Lock/60_Def/60
Mixed Use Lock/60_YM/54_0%/6
Mobile Home Park YM/24_.75%/12_0%/48
Industrial Lock/60_Def/57_0%/3
- ------------------------------- -----------------------------------------------
Mobile Home Park YM/48_1%/12
Lock/36_ greater than 1% or YM/42_0%/6
Office NAP
Office NAP
Retail Lock/60_Def/60
- ------------------------------- -----------------------------------------------
Retail Lock/59_ greater than 1% or YM/177_0%/4
Retail greater than 1% or YM/175_0%/5
Congregate Care/Assisted Living Lock/48_Def/69
Retail Lock/36_Def/81_0%/3
Retail Lock/60_Def/60
- ------------------------------- -----------------------------------------------
Retail Lock/60_Def/204
Retail Lock/59_ greater than 1% or YM/164_0%/5
Multifamily Lock/60_Def/58_0%/3
Mixed Use Lock/60_Def/57_0%/3
Mixed Use Lock/36_ greater than 1% or YM/78_0%/6
- ------------------------------- -----------------------------------------------
Hospitality greater than 1% or YM/114_0%/6
Retail Lock/59_6%/12_5%/12_4%/12_3%/12_2%/9_0%/4
Multifamily Lock/48_ greater than 1% or YM/69_0%/3
Hospitality greater than 1% or YM/180_0%/60
Retail Lock/60_Def/204
- ------------------------------- -----------------------------------------------
Hospitality greater than 1% or YM/78_0%/6
Self-Storage Lock/48_1%/12_0%/24
Office YM/90_0%/6
Lock/35_ greater than 1% or YM/139_0%/6
Retail NAP
- ------------------------------- -----------------------------------------------
<PAGE>
PROPERTY
TYPE PREPAYMENT PROVISIONS
- ------------------------------- -----------------------------------------------
Industrial NAP
Industrial Lock/60_ greater than 1% or YM/56_0%/4
Retail Lock/36_Def/81_0%/3
Retail Lock/36_Def/81_0%/3
Retail Lock/60_YM/54_0%/6
- ------------------------------- -----------------------------------------------
Hospitality greater than 1% or YM/180_0%/60
Retail Lock/60_Def/204
Hospitality Lock/60_Def/57_0%/3
Office Lock/24_ greater than 1% or YM/93_0%/3
Multifamily Lock/48_Def/72
- ------------------------------- -----------------------------------------------
Hospitality Lock/60_ greater than 1% or YM/54_0%/6
Multifamily greater than 1% or YM/114_0%/6
Industrial Lock/60_YM/54_0%/6
Office 0%/193
Retail YM/78_0%/6
- ------------------------------- -----------------------------------------------
Multifamily Lock/48_ greater than 1% or YM/66_0%/6
Industrial greater than 1% or YM/114_0%/6
Retail Lock/60_ greater than 1% or YM/54_0%/6
Retail Lock/96_ greater than 1% or YM/191_0%/4
Retail Lock/96_Def/81_0%/3
- ------------------------------- -----------------------------------------------
Hospitality YM/114_0%/6
Office Lock/60_YM/54_0%/6
Multifamily Lock/48_ greater than 1% or YM/69_0%/3
Lock/60_Def/56_0%/3
Multifamily NAP
- ------------------------------- -----------------------------------------------
Multifamily NAP
Multifamily NAP
Multifamily NAP
Multifamily NAP
Multifamily NAP
- ------------------------------- -----------------------------------------------
Multifamily NAP
Multifamily NAP
Office greater than 1% or YM/114_0%/6
Multifamily Lock/24_ greater than 1% or YM/153_0%/3
Hospitality Lock/12_ greater than 1% or YM/102_0%/6
- ------------------------------- -----------------------------------------------
Multifamily Lock/60_ greater than 1% or YM/189_0%/3
Retail greater than 1% or YM/299
Multifamily Lock/60_Def/57_0%/3
Mixed Use Lock/60_ greater than 1% or YM/54_0%/6
Retail greater than 1% or YM/260_0%/4
- ------------------------------- -----------------------------------------------
Mobile Home Park YM/36_1%/12_0%/12
Mixed Use greater than 1% or YM/114_0%/6
Lock/59_ greater than 1% or YM/130_0%/3
Multifamily NAP
Multifamily NAP
- ------------------------------- -----------------------------------------------
Multifamily greater than 1% or YM/114_0%/6
Retail Lock/60_ greater than 1% or YM/226_0%/4
Multifamily Lock/48_ greater than 1% or YM/69_0%/3
Multifamily greater than 1% or YM/114_0%/6
Industrial Lock/42_6%/12_5%/12_4%/12_3%/12_2%/10_0%/3
- ------------------------------- -----------------------------------------------
Hospitality Lock/56_Def/61_0%/3
Retail greater than 1% or YM/114_0%/6
Office greater than 1% or YM/114_0%/6
Industrial Lock/48_ greater than 1% or YM/66_0%/6
Lock/22_ greater than 1% or YM/91_0%/7
- ------------------------------- -----------------------------------------------
Office NAP
Office NAP
Retail greater than 1% or YM/299
Multifamily Lock/35_ greater than 1% or YM/46_0%/3
Mobile Home Park YM/48_1%/12_0%/24
- ------------------------------- -----------------------------------------------
Office Lock/47_ greater than 1% or YM/66_0%/7
Skilled Nursing greater than 1% or YM/228_0%/12
Office Lock/60_ greater than 1% or YM/54_0%/6
Retail Lock/60_ greater than 1% or YM/54_0%/6
Lock/96_Def/81_0%/3
- ------------------------------- -----------------------------------------------
Retail NAP
Retail NAP
Office Lock/60_ greater than 1% or YM/54_0%/6
Office Lock/60_ greater than 1% or YM/57_0%/3
Office greater than 1% or YM/78_0%/6
- ------------------------------- -----------------------------------------------
<PAGE>
PROPERTY
TYPE PREPAYMENT PROVISIONS
- ------------------------------- -----------------------------------------------
Retail greater than 1% or YM/114_0%/6
Office greater than 1% or YM/78_0%/6
Mixed Use Lock/35_ greater than 1% or YM/81_0%/4
Retail Lock/96_Def/81_0%/3
Multifamily greater than 1% or YM/114_0%/6
- ------------------------------- -----------------------------------------------
Retail Lock/116_ greater than 1% or YM/106_0%/18
Hospitality greater than 1% or YM/114_0%/6
Self-Storage greater than 1% or YM/114_0%/6
Multifamily greater than 1% or YM/114_0%/6
Multifamily greater than 1% or YM/114_0%/6
- ------------------------------- -----------------------------------------------
Industrial Lock/60_ greater than 1% or YM/54_0%/6
Retail greater than 1% or YM/260_0%/4
Multifamily greater than 1% or YM/354_0%/6
Retail Lock/60_ greater than 1% or YM/188_0%/4
Retail Lock/60_YM/54_0%/6
- ------------------------------- -----------------------------------------------
Retail greater than 1% or YM/114_0%/6
Industrial Lock/60_ greater than 1% or YM/54_0%/6
Mixed Use Lock/60_ greater than 1% or YM/54_0%/6
Multifamily greater than 1% or YM/114_0%/6
Retail greater than 1% or YM/78_0%/6
- ------------------------------- -----------------------------------------------
Hospitality YM/114_0%/6
Mobile Home Park Lock/60_YM/54_0%/6
Hospitality greater than 1% or YM/114_0%/6
Multifamily Lock/60_Def/21_0%/3 ( greater than 1% or YM
during earnout period only)
Multifamily Lock/35_ greater than 1% or YM/78_0%/7
- ------------------------------- -----------------------------------------------
Retail Lock/120_ greater than 1% or YM/115_0%/5
Industrial Lock/48_5%/24_4%/12_3%/12_2%/12_1%/65_0%/6
Industrial Lock/36_2%/11_1%/10_0%/02_Lock/37_2%/12_1%/9_0%/03
Retail Lock/96_Def/81_0%/3
Multifamily greater than 1% or YM/114_0%/6
- ------------------------------- -----------------------------------------------
Industrial Lock/48_5%/24_4%/12_3%/12_2%/12_1%/65_0%/6
Retail Lock/96_Def/81_0%/3
Skilled Nursing greater than 1% or YM/108_0%/12
Skilled Nursing greater than 1% or YM/108_0%/12
Retail Lock/60_YM/54_0%/6
- ------------------------------- -----------------------------------------------
Office Lock/60_ greater than 1% or YM/102_0%/6
Multifamily greater than 1% or YM/138_0%/6
Retail greater than 1% or YM/114_0%/6
Industrial Lock/59_ greater than 1% or YM/51_0%/4
Congregate Care/Assisted Living Lock/48_Def/70_0%/3
- ------------------------------- -----------------------------------------------
Retail Lock/108_YM/126_0%/6
Multifamily greater than 1% or YM/138_0%/6
Hospitality Lock/36_Def/81_0%/3
Industrial Lock/60_Def/57_0%/3
Retail Lock/84_ greater than 1% or YM/90_0%/6
- ------------------------------- -----------------------------------------------
Multifamily greater than 1% or YM/114_0%/6
Mixed Use Lock/60_ greater than 1% or YM/54_0%/6
Office greater than 1% or YM/114_0%/6
Multifamily greater than 1% or YM/114_0%/6
Retail greater than 1% or YM/259_0%/5
- ------------------------------- -----------------------------------------------
Retail Lock/60_ greater than 1% or YM/54_0%/6
Industrial Lock/60_YM/28_0%/6
Industrial greater than 1% or YM/174_0%/6
Retail greater than 1% or YM/114_0%/6
Multifamily Lock/60_ greater than 1% or YM/54_0%/6
- ------------------------------- -----------------------------------------------
Office greater than 1% or YM/114_0%/6
Multifamily Lock/60_Def/21_0%/3 ( greater than 1% or YM
during earnout period only)
Retail greater than 1% or YM/259_0%/5
Retail Lock/60_ greater than 1% or YM/54_0%/6
Industrial greater than 1% or YM/174_0%/6
- ------------------------------- -----------------------------------------------
Multifamily 1%/36_0%/84
Industrial Lock/60_ greater than 1% or YM/54_0%/6
Industrial Lock/35_ greater than 1% or YM/81_0%/4
Retail Lock/60_ greater than 1% or YM/219_0%/4
Industrial Lock/72_ greater than 1% or YM/102_0%/6
- ------------------------------- -----------------------------------------------
Multifamily Lock/60_Def/54_0%/6
Industrial greater than 1% or YM/113_0%/6
Self-Storage greater than 1% or YM/96_0%/24
Self-Storage greater than 1% or YM/96_0%/24
Hospitality Lock/48_ greater than 1% or YM/66_0%/6
- ------------------------------- -----------------------------------------------
<PAGE>
PROPERTY
TYPE PREPAYMENT PROVISIONS
- ------------------------------- -----------------------------------------------
Multifamily greater than 1% or YM/114_0%/6
Retail greater than 1% or YM/114_0%/6
Retail Lock/60_ greater than 1% or YM/230_0%/4
Multifamily greater than 1% or YM/114_0%/6
Industrial Lock/35_ greater than 1% or YM/78_0%/7
- ------------------------------- -----------------------------------------------
Multifamily greater than 1% or YM/138_0%/6
Multifamily Lock/60_ greater than 1% or YM/54_0%/6
Industrial Lock/60_ greater than 1% or YM/50_0%/6
Office Lock/60_ greater than 1% or YM/57_0%/3
Self-Storage greater than 1% or YM/114_0%/6
- ------------------------------- -----------------------------------------------
Retail greater than 1% or YM/114_0%/6
Retail Lock/60_YM/54_0%/6
Office greater than 1% or YM/114_0%/6
Industrial Lock/48_5%/24_4%/12_3%/12_2%/12_1%/65_0%/6
Mixed Use greater than 1% or YM/114_0%/6
- ------------------------------- -----------------------------------------------
Multifamily Lock/60_ greater than 1% or YM/54_0%/6
Retail Lock/60_YM/54_0%/6
Multifamily Lock/60_Def/60
Skilled Nursing Lock/96_ greater than 1% or YM/78_0%/6
Multifamily Lock/60_ greater than 1% or YM/54_0%/6
- ------------------------------- -----------------------------------------------
Retail greater than 1% or YM/234_0%/6
Office greater than 1% or YM/114_0%/6
Industrial Lock/60_YM/54_0%/6
Hospitality Lock/48_4%/12_3%/12_2%/12_1%/12_0%/24
Retail Lock/60_YM/54_0%/6
- ------------------------------- -----------------------------------------------
Multifamily Lock/60_ greater than 1% or YM/54_0%/6
Office Lock/12_ greater than 1% or YM/105_0%/3
Multifamily greater than 1% or YM/114_0%/6
Multifamily 1%/36_0%/84
Industrial Lock/48_5%/24_4%/12_3%/12_2%/12_1%/65_0%/6
- ------------------------------- -----------------------------------------------
Office greater than 1% or YM/114_0%/6
Multifamily greater than 1% or YM/138_0%/6
Mixed Use Lock/48_ greater than 1% or YM/30_0%/6
Hospitality Lock/48_ greater than 1% or YM/66_0%/6
Hospitality Lock/60_ greater than 1% or YM/54_0%/6
- ------------------------------- -----------------------------------------------
Industrial Lock/60_YM/54_0%/6
Office Lock/48_Def/68
Office greater than 1% or YM/114_0%/6
Retail Lock/48_ greater than 1% or YM/66_0%/6
Multifamily Lock/60_ greater than 1% or YM/54_0%/6
- ------------------------------- -----------------------------------------------
Multifamily greater than 1% or YM/114_0%/6
Hospitality Lock/48_ greater than 1% or YM/66_0%/6
Office greater than 1% or YM/114_0%/6
Retail Lock/60_2%/54_0%/6
Industrial Lock/60_Def/204
- ------------------------------- -----------------------------------------------
Multifamily Lock/48_ greater than 1% or YM/66_0%/6
Retail greater than 1% or YM/260_0%/4
Mobile Home Park Lock/96_ greater than 1% or YM/72_1%/12
Retail greater than 1% or YM/113_0%/6
Retail Lock/60_YM/54_0%/6
- ------------------------------- -----------------------------------------------
Self-Storage greater than 1% or YM/78_0%/6
Multifamily 1%/36_0%/84
Office Lock/60_YM/12_0%/6
Office Lock/60_YM/54_0%/6
Self-Storage Lock/48_ greater than 1% or YM/66_0%/6
- ------------------------------- -----------------------------------------------
Self-Storage greater than 1% or YM/78_0%/6
Office greater than 1% or YM/114_0%/6
Office greater than 1% or YM/111_0%/6
Retail Lock/36_0%/48
Multifamily greater than 1% or YM/72_3%/12_2%/12_1%/18_0%/6
- ------------------------------- -----------------------------------------------
Multifamily greater than 1% or YM/78_0%/6
Multifamily Lock/60_Def/57_0%/3
Office greater than 1% or YM/114_0%/6
Multifamily greater than 1% or YM/114_0%/6
Office greater than 1% or YM/114_0%/6
- ------------------------------- -----------------------------------------------
Self-Storage Lock//36_2%/24_1%/12_0%/12
Self-Storage greater than 1% or YM/114_0%/6
Multifamily greater than 1% or YM/117_0%/3
Skilled Nursing Lock/36_5%/12_4%/12_3%/12_2%/12_1%/12_0%/23
NAP
- ------------------------------- -----------------------------------------------
<PAGE>
PROPERTY
TYPE PREPAYMENT PROVISIONS
- ------------------------------- -----------------------------------------------
Skilled Nursing NAP
Self-Storage greater than 1% or YM/96_0%/24
Self-Storage greater than 1% or YM/78_0%/6
Office greater than 1% or YM/114_0%/6
Mixed Use greater than 1% or YM/113_0%/6
- ------------------------------- -----------------------------------------------
Industrial Lock/22_ greater than 1% or YM/91_0%/7
Mixed Use greater than 1% or YM/114_0%/6
Congregate Care/Assisted Living greater than 1% or YM/234_0%/6
Hospitality Lock/48_ greater than 1% or YM/66_0%/6
Industrial Lock/34_ greater than 1% or YM/79_0%/7
- ------------------------------- -----------------------------------------------
Mobile Home Park Lock/60_ greater than 1% or YM/54_0%/6
Self-Storage Lock/60_ greater than 1% or YM/54_0%/6
Retail greater than 1% or YM/114_0%/6
Industrial Lock/60_YM/54_0%/6
Multifamily 1%/36_0%/84
- ------------------------------- -----------------------------------------------
Multifamily Lock/60_Def/57_0%/3
Multifamily greater than 1% or YM/114_0%/6
Mixed Use Lock/96_ greater than 1% or YM/60_0%/24
Multifamily Lock/60_Def/57_0%/3
Multifamily 1%/36_0%/84
- ------------------------------- -----------------------------------------------
Skilled Nursing Lock/36_5%/12_4%/12_3%/12_2%/12_1%/12_0%/24
Self-Storage greater than 1% or YM/114_0%/6
Multifamily greater than 1% or YM/174_0%/6
Retail 5%/12_4%/12_3%/12_2%/24_1%/24_0%/36
Retail greater than 1% or YM/114_0%/6
- ------------------------------- -----------------------------------------------
Multifamily 1%/36_0%/86
Multifamily greater than 1% or YM/138_0%/6
Retail greater than 1% or YM/78_0%/6
Mixed Use Lock/60_ greater than 1% or YM/54_0%/6
Mixed Use Lock/60_YM/54_0%/6
- ------------------------------- -----------------------------------------------
Multifamily Lock/60_YM/54_0%/6
Retail Lock/60_ greater than 1% or YM/54_0%/6
Retail Lock/60_ greater than 1% or YM/54_0%/6
Multifamily greater than 1% or YM/78_0%/6
Self-Storage Lock/60_5%/12_4%/12_3%/12_2%/12_1%/6_0%/6
- ------------------------------- -----------------------------------------------
Industrial greater than 1% or YM/114_0%/6
Retail Lock/48_ greater than 1% or YM/66_0%/6
Multifamily greater than 1% or YM/78_0%/6
Office Lock/60_5%/12_4%/12_3%/12_2%/12_1%/96
Multifamily Lock/60_YM/54_0%/6
- ------------------------------- -----------------------------------------------
Hospitality Lock/48_4%/12_3%/12_2%/12_1%/12_0%/24
Industrial Lock/22_ greater than 1% or YM/91_0%/7
Other Lock/84_ greater than 1% or YM/144_0%/12
Industrial Lock/60_5%/12_4%/12_0%/70
Industrial Lock/120_ greater than 1% or YM/60_0%/60
- ------------------------------- -----------------------------------------------
Office Lock/60_ greater than 1% or YM/54_0%/6
Self-Storage Lock/60_ greater than 1% or YM/114_0%/6
Mobile Home Park Lock/120_ greater than 1% or YM/114_0%/6
Multifamily 1%/36_0%/84
Multifamily greater than 1% or YM/114_0%/6
- ------------------------------- -----------------------------------------------
Hospitality Lock/60_ greater than 1% or YM/54_0%/6
Skilled Nursing Lock/36_5%/12_4%/12_3%/12_2%/12_1%/12_0%/24
Self-Storage Lock/60_ greater than 1% or YM/156_0%/24
Office greater than 1% or YM/114_0%/6
Retail greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/12_0%/60
- ------------------------------- -----------------------------------------------
Retail Lock/60_ greater than 1% or YM/54_0%/6
Multifamily Lock/12_ greater than 1% or YM/105_0%/3
Retail Lock/60_YM/54_0%/6
Office Lock/60_YM/54_0%/6
Multifamily greater than 1% or YM/114_0%/6
- ------------------------------- -----------------------------------------------
Multifamily greater than 1% or YM/138_0%/6
Office greater than 1% or YM/114_0%/6
Retail YM/120_5%/12_4%/12_3%/12_2%/12_1%/12_0%/60
Multifamily greater than 1% or YM/114_0%/6
Retail greater than 1% or YM/78_0%/6
- ------------------------------- -----------------------------------------------
Retail greater than 1% or YM/114_0%/6
Multifamily Lock/96_ greater than 1% or YM/60_0%/24
Multifamily greater than 1% or YM/84_1%/30_0%/6
Mixed Use greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/6_0%/6
Hospitality greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/12
- ------------------------------- -----------------------------------------------
<PAGE>
PROPERTY
TYPE PREPAYMENT PROVISIONS
- ------------------------------- -----------------------------------------------
Self-Storage Lock/60_1% or YM/54_0%/6
Retail Lock/48_1% or YM/66_0%/6
Retail Lock/60_1% or YM/54_0%/6
Office greater than 1% or YM/114_0%/6
Mixed Use greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/12_0%/60
- ------------------------------- -----------------------------------------------
Retail greater than 1% or YM/114_0%/6
Self-Storage greater than 1% or YM/156_0%/24
Self-Storage Lock/48_1% or YM/120_0%/12
Retail greater than 1% or YM/113_0%/6
Multifamily greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/6_0%/6
- ------------------------------- -----------------------------------------------
Self-Storage Lock/60_1% or YM/54_0%/6
Multifamily greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/6_0%/6
Self-Storage greater than 1% or YM/114_0%/6
Mobile Home Park greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/12_0%/60
Industrial Lock/48_1% or YM/66_0%/6
- ------------------------------- -----------------------------------------------
Retail 5%/12_4%/12_3%/12_2%/24_1%/24_0%/36
Retail greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/12_0%/60
Retail greater than 1% or YM/114_0%/6
Industrial greater than 1% or YM/114_0%/6
Multifamily greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/12_0%/24
- ------------------------------- -----------------------------------------------
Retail greater than 1% or YM/114_0%/6
Retail 5%/12_4%/12_3%/12_2%/24_1%/24_0%/36
Office greater than 1% or YM/114_0%/6
Multifamily greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/12_0%/120
Retail greater than 1% or YM/114_0%/6
- ------------------------------- -----------------------------------------------
Retail greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/12_0%/60
Multifamily greater than 1% or YM/120
Retail greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/12_0%/60
Multifamily greater than 1% or YM/78_0%/6
Other greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/12_0%/60
- ------------------------------- -----------------------------------------------
Multifamily greater than 1% or YM/114_0%/6
Industrial greater than 1% or YM/114_0%/6
Retail greater than 1% or YM/114_0%/6
Mixed Use greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/6_0%/6
Retail greater than 1% or YM/174_0%/6
- ------------------------------- -----------------------------------------------
Multifamily greater than 1% or YM/114_0%/6
Industrial greater than 1% or YM/114_0%/6
Mixed Use greater than 1% or YM/120_5%/12_4%/12_3%/6_0%/6
Mobile Home Park greater than 1% or YM/114_0%/6
Retail greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/12_0%/60
- ------------------------------- -----------------------------------------------
Multifamily greater than 1% or
YM/120_5%/12_4%/12_3%/12_2%/12_1%/6_0%/6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SQ FT, LOAN PER
ANNUAL CUT-OFF MATURITY UNITS, SQ FT, UNITS,
DEBT UNDERWRITTEN UNDERWRITTEN APPRAISED APPRAISAL DATE DATE OR BED, PAD BED, PAD
SERVICE CASH FLOW DSCR VALUE DATE LTV ARD LTV OR ROOM UNIT TYPE OR ROOM
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3,858,735 5,177,250 1.34 55,600,000 11/20/96 72 64 376,933 Sq Ft 106
3,816,400 NAP 1.00 44,100,000 7/14/97 90 0 382,579 Sq Ft 104
3,124,358 4,106,321 1.31 38,900,000 8/1/97 80 66 938 Beds 33,049
725,289 7,600,000 8/1/97 231 Beds
749,358 6,300,000 8/1/97 156 Beds
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
677,211 6,200,000 8/1/97 110 Beds
784,618 6,900,000 8/1/97 173 Beds
664,057 6,600,000 8/1/97 148 Beds
505,788 5,300,000 8/1/97 120 Beds
2,378,697 3,016,992 1.27 32,600,000 4/15/97 80 71 1,196,630 Sq Ft 22
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
2,310,825 3,251,462 1.41 30,040,000 5/1/97 79 67 458 Beds 52,004
1,291,579 10,840,000 5/1/97 179 Beds
975,755 10,560,000 5/1/97 172 Beds
984,128 8,640,000 5/1/97 107 Beds
2,015,148 2,537,059 1.26 42,200,000 7/15/97 53 47 288,735 Sq Ft 78
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
2,099,180 3,021,278 1.44 31,700,000 6/1/97 69 58 381 Rooms 57,743
2,006,697 2,504,984 1.25 29,750,000 5/6/97 72 64 703 Units 30,529
1,896,000 2,472,674 1.30 27,800,000 10/23/95 73 3 295,999 Sq Ft 69
1,840,284 2,187,085 1.19 24,300,000 3/28/97 82 73 896 Units 22,321
1,751,398 2,228,535 1.27 25,200,000 6/17/97 79 69 180,965 Sq Ft 110
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
1,997,404 2,795,448 1.40 29,000,000 3/1/97 66 55 244 Rooms 78,626
1,858,065 2,576,706 1.39 24,130,000 5/1/97 79 66 430 Beds 44,537
1,558,272 10,700,000 5/1/97 120 Beds
637,509 7,590,000 5/1/97 204 Beds
380,925 5,840,000 5/1/97 106 Beds
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
1,785,439 2,435,227 1.36 25,200,000 5/1/97 75 61 218,272 Sq Ft 87
1,781,624 2,231,467 1.25 26,500,000 5/1/97 70 0 299,238 Sq Ft 62
2,102,369 2,338,204 1.11 25,650,000 4/22/92 66 54 627,966 Sq Ft 27
748,831 265,057 Sq Ft
723,748 97,964 Sq Ft
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
370,621 116,529 Sq Ft
495,004 148,416 Sq Ft
1,591,581 1,971,703 1.24 27,000,000 2/22/95 58 49 236 Units 65,952
1,407,112 1,784,583 1.27 21,500,000 6/19/97 71 63 154,077 Sq Ft 99
1,404,207 2,202,567 1.57 27,000,000 3/13/97 56 45 140,321 Sq Ft 107
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
1,316,021 1,650,349 1.25 18,900,000 1/8/97 74 68 181 Units 77,348
1,312,751 1,451,559 1.11 17,520,000 6/2/97 80 48 123,736 Sq Ft 113
1,320,510 1,491,308 1.13 19,300,000 10/17/96 71 64 132,534 Sq Ft 103
1,323,100 2,023,807 1.53 21,000,000 3/17/97 64 44 222 Beds 60,277
1,237,739 1,635,347 1.32 17,700,000 10/10/95 73 54 202 Beds 64,146
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
1,280,143 1,698,823 1.33 19,500,000 2/1/97 65 26 221 Rooms 56,983
1,144,875 1,493,547 1.30 16,600,000 12/27/96 75 67 258,013 Sq Ft 48
1,053,218 1,316,863 1.25 16,200,000 7/17/97 74 65 127,174 Sq Ft 94
1,093,691 1,291,780 1.18 18,600,000 11/6/96 64 60 576 Pads 20,741
1,240,109 1,733,899 1.40 16,500,000 3/12/97 71 60 167,500 Sq Ft 70
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
1,111,032 1,279,044 1.15 16,600,000 7/2/96 69 67 518 Pads 22,252
1,159,753 1,499,064 1.29 16,000,000 10/9/96 71 64 191,922 Sq Ft 59
514,758 4,600,000 10/9/96 76,458 Sq Ft
984,306 11,400,000 10/9/96 115,464 Sq Ft
1,026,285 1,318,591 1.28 14,700,000 5/12/97 77 68 194,973 Sq Ft 58
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
1,316,010 2,055,748 1.56 22,000,000 7/1/93 52 0 119,459 Sq Ft 95
1,347,202 1,663,784 1.23 18,000,000 11/16/95 62 0 225,416 Sq Ft 50
1,026,855 1,485,858 1.45 13,900,000 7/25/97 79 65 184 Units 59,783
944,902 1,211,981 1.28 13,500,000 7/22/97 79 69 109,800 Sq Ft 97
970,415 1,213,091 1.25 14,200,000 5/15/97 73 65 179,459 Sq Ft 58
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
1,001,876 NAP 1.00 11,600,000 7/11/97 89 0 53,042 Sq Ft 195
1,190,765 1,487,234 1.25 15,800,000 4/24/95 65 0 74,351 Sq Ft 139
879,514 1,024,359 1.16 12,470,000 7/30/97 83 72 356 Units 28,933
943,918 1,176,746 1.25 14,100,000 6/18/97 73 64 139,704 Sq Ft 73
984,457 1,157,814 1.18 13,000,000 2/11/97 77 67 74,140 Sq Ft 135
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
1,058,882 1,493,502 1.41 14,000,000 10/28/96 71 60 156 Rooms 63,733
1,053,606 1,479,916 1.40 15,295,000 6/7/93 63 49 129,360 Sq Ft 74
887,436 1,272,278 1.43 12,600,000 6/12/97 75 61 173 Units 54,913
946,945 1,336,611 1.41 15,000,000 3/17/97 63 25 170 Rooms 55,780
891,903 NAP 1.00 10,300,000 7/11/97 89 0 53,072 Sq Ft 174
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
962,771 1,290,500 1.34 13,200,000 10/1/96 70 63 141 Rooms 65,268
868,992 1,055,420 1.21 11,300,000 10/30/96 80 75 192,367 Sq Ft 47
797,842 1,085,366 1.36 11,000,000 5/16/97 75 65 219,525 Sq Ft 38
1,167,840 1,285,931 1.10 14,180,000 various 58 0 152,698 Sq Ft 54
1,146,279 12,640,000 3/15/95 112,416 Sq Ft
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
<PAGE>
139,652 1,540,000 3/27/95 40,282 Sq Ft
992,313 1,001,009 1.01 11,800,000 12/8/94 69 51 86,400 Sq Ft 94
713,133 897,394 1.26 10,000,000 7/22/97 80 70 118,242 Sq Ft 68
713,133 923,065 1.29 9,600,000 7/22/97 83 73 109,800 Sq Ft 73
693,070 947,479 1.37 10,900,000 5/8/97 73 64 60,131 Sq Ft 133
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
797,427 890,788 1.12 13,000,000 3/19/97 61 25 145 Rooms 55,072
767,763 767,763 1.00 8,900,000 7/11/97 89 0 53,042 Sq Ft 149
845,403 1,200,820 1.42 11,000,000 3/10/97 71 60 138 Rooms 56,347
756,600 990,809 1.31 11,000,000 9/5/96 69 57 75,400 Sq Ft 101
647,883 788,268 1.22 9,000,000 7/14/97 83 73 260 Units 28,846
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
696,409 1,302,772 1.87 14,800,000 5/1/97 50 41 180 Rooms 41,069
648,410 771,100 1.19 9,500,000 12/20/96 78 71 232 Units 31,832
662,529 828,156 1.25 10,220,000 7/8/97 71 60 203,743 Sq Ft 36
682,242 861,968 1.26 12,000,000 7/15/86 60 53 96,679 Sq Ft 75
721,778 934,449 1.29 11,465,000 10/1/96 63 57 47,454 Sq Ft 151
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
682,642 879,306 1.29 9,250,000 11/15/96 76 68 246 Units 28,692
760,639 890,715 1.17 11,200,000 8/8/96 62 45 214,765 Sq Ft 32
684,784 886,895 1.30 9,600,000 12/1/96 71 59 69,988 Sq Ft 97
689,442 774,021 1.12 9,300,000 6/4/95 72 0 113,533 Sq Ft 59
631,359 839,982 1.33 8,950,000 1/10/97 75 59 161,965 Sq Ft 41
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
674,714 1,004,807 1.49 9,300,000 2/1/97 72 60 120 Rooms 55,581
679,124 903,558 1.33 9,600,000 12/27/96 69 58 121,451 Sq Ft 55
611,864 955,831 1.57 8,800,000 2/4/97 74 60 167 Units 39,222
640,198 917,143 1.43 8,320,000 4/3/97 77 64 162 Units
241,181 2,200,000 4/3/97 50 Units
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
68,333 510,000 4/3/97 8 Units
131,887 1,140,000 4/3/97 18 Units
221,769 1,830,000 4/3/97 37 Units
52,371 505,000 4/3/97 10 Units
72,531 915,000 4/3/97 17 Units
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
58,549 495,000 4/3/97 8 Units
70,522 725,000 4/3/97 14 Units
648,628 814,075 1.26 9,740,000 2/14/97 66 55 172,246 Sq Ft 37
908,806 2,398,030 2.64 18,600,000 12/21/92 34 0 364 Units 17,478
648,624 1,029,858 1.59 11,600,000 3/14/97 55 45 212 Rooms 29,901
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
664,201 731,952 1.10 12,000,000 11/18/93 52 0 534 Units 11,789
622,316 810,656 1.30 8,500,000 4/19/95 71 0 94,808 Sq Ft 64
573,552 702,536 1.22 7,800,000 4/25/97 77 67 240 Units 24,947
613,493 790,734 1.29 8,300,000 1/16/97 72 60 91,041 Sq Ft 66
642,320 642,239 1.00 6,200,000 11/30/94 96 0 33,225 Sq Ft 179
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
550,413 662,340 1.20 7,900,000 8/27/96 74 71 337 Pads 17,338
562,710 701,310 1.25 7,900,000 3/11/97 72 65 156,385 Sq Ft 36
714,600 1,172,711 1.64 10,500,000 Various 54 0 300 Units 18,933
774,555 6,800,000 11/23/93 172 Units
398,156 3,700,000 12/10/93 128 Units
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
486,417 602,550 1.24 7,100,000 6/17/97 78 71 112 Units 49,464
576,807 789,302 1.37 8,200,000 7/1/94 67 0 107,388 Sq Ft 51
513,779 730,888 1.42 7,600,000 6/12/97 72 59 133 Units 41,353
519,222 687,956 1.32 7,525,000 5/6/97 73 65 188 Units 29,204
515,527 692,256 1.34 7,700,000 10/1/93 71 63 261,400 Sq Ft 21
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
719,530 1,316,291 1.83 12,400,000 2/24/97 44 23 222 Rooms 24,538
510,708 644,570 1.26 7,200,000 3/4/97 75 67 181,309 Sq Ft 30
534,746 587,487 1.10 7,400,000 4/7/97 73 63 110,791 Sq Ft 49
546,464 714,311 1.31 8,000,000 3/7/97 67 56 228,702 Sq Ft 24
519,160 746,873 1.44 7,675,000 11/30/95 70 52 71,629 Sq Ft 75
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
533,228 5,100,000 11/30/95 42,472 Sq Ft
213,645 2,575,000 11/30/95 29,157 Sq Ft
545,462 679,140 1.25 7,425,000 3/13/95 72 0 77,000 Sq Ft 69
556,468 539,734 0.97 8,100,000 10/19/94 65 61 168 Units 31,543
493,742 575,591 1.17 7,100,000 8/23/96 73 69 253 Pads 20,439
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
456,180 539,727 1.18 7,000,000 2/5/96 73 59 92,866 Sq Ft 55
545,191 1,653,738 3.03 7,500,000 6/25/97 68 0 196 Beds 26,133
485,398 588,112 1.21 8,200,000 4/1/97 62 52 98,266 Sq Ft 52
495,379 637,523 1.29 6,500,000 4/8/97 78 64 44,069 Sq Ft 116
476,565 608,015 1.28 6,650,000 Various 77 64 175,369 Sq Ft 29
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
334,015 3,450,000 4/27/97 96,479 Sq Ft
274,000 3,200,000 5/1/97 78,890 Sq Ft
499,455 644,634 1.29 7,400,000 2/12/97 68 57 79,298 Sq Ft 64
491,778 724,779 1.47 7,430,000 3/17/97 67 58 69,996 Sq Ft 71
505,574 601,672 1.19 7,500,000 10/9/96 66 60 111,128 Sq Ft 45
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
<PAGE>
491,250 532,385 1.08 7,900,000 6/25/96 63 52 38,600 Sq Ft 129
523,639 554,654 1.06 7,200,000 5/14/96 68 60 45,120 Sq Ft 109
455,916 690,584 1.51 7,750,000 9/7/94 63 52 52,888 Sq Ft 93
457,286 582,583 1.27 6,200,000 5/1/97 79 66 159,283 Sq Ft 31
455,783 548,144 1.20 6,300,000 11/19/96 77 68 106 Units 45,564
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
465,097 1,008,242 2.17 10,600,000 10/1/95 46 0 163,320 Sq Ft 30
493,276 691,245 1.40 6,700,000 4/1/97 72 60 207 Rooms 23,188
466,508 597,826 1.28 6,600,000 7/11/97 72 59 112,815 Sq Ft 42
440,647 518,058 1.18 6,100,000 4/23/97 78 69 153 Units 30,976
415,737 567,131 1.36 6,200,000 6/21/97 76 69 180 Units 26,306
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
449,407 595,193 1.32 6,425,000 5/9/97 73 60 145,459 Sq Ft 32
504,532 NAP 1.00 4,900,000 12/1/94 95 0 32,873 Sq Ft 142
430,241 550,681 1.28 5,900,000 5/21/97 79 0 147 Units 31,594
491,938 NAP 1.23 7,300,000 3/14/96 63 0 43,684 Sq Ft 105
462,527 600,248 1.30 6,650,000 1/25/97 69 57 132,969 Sq Ft 34
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
467,584 675,538 1.44 6,970,000 2/12/97 65 54 34,455 Sq Ft 132
396,233 531,528 1.34 7,500,000 6/20/97 60 53 100,000 Sq Ft 45
428,003 829,129 1.94 8,000,000 5/27/97 56 46 37,495 Sq Ft 120
422,891 547,282 1.29 6,160,000 5/6/97 73 65 208 Units 21,597
423,774 524,768 1.24 5,800,000 1/27/97 75 70 62,316 Sq Ft 70
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
433,025 593,412 1.37 9,500,000 1/1/97 45 37 216 Rooms 19,817
424,927 563,326 1.33 6,300,000 8/7/96 68 56 503 Pads 8,500
445,585 551,255 1.24 5,700,000 1/24/97 74 62 86 Rooms 49,296
405,438 506,308 1.25 5,190,000 4/20/97 79 71 380 Units 10,848
388,711 537,032 1.38 5,900,000 8/30/95 70 58 98 Units 41,934
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
463,082 477,559 1.03 5,600,000 2/1/95 73 8 35,512 Sq Ft 115
391,470 478,345 1.22 5,400,000 9/21/95 75 40 130,740 Sq Ft 31
468,415 657,156 1.40 7,050,000 5/23/94 57 43 102,500 Sq Ft 39
377,174 483,090 1.28 4,950,000 4/27/97 81 68 125,796 Sq Ft 32
351,994 454,979 1.29 6,200,000 6/17/97 65 59 150 Units 26,727
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
386,337 474,660 1.23 5,200,000 10/9/95 77 41 56,000 Sq Ft 72
374,382 478,268 1.28 5,300,000 5/1/97 75 63 141,273 Sq Ft 28
389,100 751,104 1.93 5,400,000 6/23/97 74 61 124 Beds 32,227
389,100 1,180,494 3.03 5,000,000 6/18/97 80 66 128 Beds 31,220
399,860 514,498 1.29 5,500,000 1/30/97 72 60 153,636 Sq Ft 26
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
514,517 838,986 1.63 5,600,000 9/20/96 70 0 63,720 Sq Ft 61
362,826 492,974 1.36 5,650,000 8/20/96 69 59 121 Units 32,236
369,179 499,910 1.35 5,450,000 5/8/97 72 64 37,268 Sq Ft 105
638,903 675,771 1.06 6,050,000 1/10/96 64 0 84,500 Sq Ft 46
375,352 622,360 1.66 5,250,000 4/19/97 73 60 61 Units 62,933
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
413,801 530,371 1.28 5,685,000 2/10/97 67 0 165,834 Sq Ft 23
333,961 443,472 1.33 4,850,000 8/20/96 78 66 121 Units 31,209
402,904 563,897 1.40 5,200,000 2/25/97 72 61 119 Rooms 31,438
359,590 463,728 1.29 5,300,000 12/27/96 71 63 184,000 Sq Ft 20
380,111 453,400 1.19 5,500,000 1/22/97 68 45 86,944 Sq Ft 43
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
358,380 438,086 1.22 5,000,000 4/5/97 74 67 141 Units 26,374
338,286 616,011 1.82 7,990,000 4/3/97 46 37 67,826 Sq Ft 54
369,351 506,313 1.37 5,300,000 10/11/96 70 58 33,324 Sq Ft 111
323,865 415,689 1.28 5,000,000 10/9/96 74 67 58 Units 63,621
399,896 NAP 1.00 3,900,000 11/30/94 95 0 32,857 Sq Ft 112
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
348,586 444,470 1.28 5,245,000 5/10/97 69 56 99,061 Sq Ft 36
349,607 469,554 1.34 4,830,000 4/14/97 74 65 490,000 Sq Ft 7
381,763 463,091 1.21 4,850,000 3/7/97 74 32 105,384 Sq Ft 34
360,169 438,609 1.22 4,800,000 12/5/96 75 65 35,416 Sq Ft 101
337,015 563,347 1.67 4,750,000 11/5/96 75 61 250 Units 14,237
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
356,331 480,449 1.35 6,400,000 11/15/96 55 46 97,604 Sq Ft 36
356,817 396,555 1.11 4,450,000 3/8/98 79 71 324 Units 10,887
381,248 NAP 1.00 3,700,000 1/4/95 95 0 34,205 Sq Ft 103
331,149 456,779 1.38 6,100,000 4/10/97 57 47 29,508 Sq Ft 118
371,158 442,260 1.19 4,800,000 3/7/97 73 31 102,000 Sq Ft 34
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
354,446 499,455 1.41 5,400,000 9/1/95 64 45 120 Units 28,772
329,884 432,341 1.31 4,600,000 4/1/97 75 61 502,950 Sq Ft 7
322,773 441,149 1.37 5,300,000 10/17/95 64 53 232,381 Sq Ft 15
367,175 478,946 1.30 5,230,000 1/3/95 65 5 42,442 Sq Ft 80
419,031 573,334 1.37 5,500,000 1/24/97 62 0 517,016 Sq Ft 7
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
344,630 485,813 1.41 4,900,000 3/17/97 69 58 248 Units 13,661
344,350 544,692 1.58 6,500,000 1/8/97 52 43 71,960 Sq Ft 47
335,325 421,563 1.26 5,000,000 10/12/96 68 56 102,996 Sq Ft 33
335,325 515,598 1.54 5,400,000 10/12/96 63 52 73,250 Sq Ft 46
320,322 530,634 1.66 5,350,000 6/24/97 63 51 152 Rooms 22,039
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
<PAGE>
291,587 347,751 1.19 4,500,000 6/16/97 74 67 120 Units 27,675
319,499 419,376 1.31 4,510,000 5/13/97 72 59 42,467 Sq Ft 77
339,754 390,443 1.15 4,150,000 3/9/94 78 0 42,886 Sq Ft 76
322,251 438,752 1.36 4,600,000 11/4/96 69 58 354 Units 8,982
306,240 354,600 1.16 4,500,000 11/30/95 70 52 91,960 Sq Ft 34
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
279,033 332,932 1.19 4,000,000 8/31/96 79 67 100 Units 31,552
260,761 316,627 1.21 4,050,000 7/25/97 77 67 64 Units 48,750
302,810 417,436 1.38 5,600,000 6/11/97 55 46 298,977 Sq Ft 10
317,665 423,076 1.33 5,150,000 9/8/96 58 49 49,142 Sq Ft 61
326,190 499,399 1.53 4,250,000 9/17/96 70 60 80,096 Sq Ft 37
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
273,245 363,409 1.33 4,015,000 11/20/96 74 66 36,900 Sq Ft 81
302,357 446,453 1.48 5,400,000 12/31/96 55 46 194,572 Sq Ft 15
281,500 409,516 1.45 4,300,000 4/2/97 69 61 50,983 Sq Ft 58
282,754 338,652 1.20 3,950,000 10/2/95 74 39 86,053 Sq Ft 34
269,889 327,729 1.21 3,900,000 5/21/97 75 66 6,575 Sq Ft 445
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
281,161 354,006 1.26 3,880,000 2/17/97 75 67 95 Units 30,738
275,544 394,923 1.43 4,000,000 5/29/97 73 59 18,843 Sq Ft 154
267,832 341,919 1.28 3,900,000 6/12/97 74 60 106 Units 27,330
295,025 491,944 1.67 4,500,000 4/10/97 64 43 99 Beds 29,242
298,021 413,736 1.39 3,660,000 1/22/97 79 66 168 Units 17,226
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
320,528 433,879 1.35 5,000,000 12/16/96 58 0 50,688 Sq Ft 57
273,403 418,679 1.53 4,500,000 4/7/97 64 57 59,926 Sq Ft 48
275,157 350,167 1.27 4,200,000 4/7/97 68 55 80,654 Sq Ft 35
324,340 473,700 1.46 4,150,000 1/22/97 68 50 119 Rooms 23,611
239,802 331,523 1.38 3,700,000 7/28/97 75 65 35,365 Sq Ft 78
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
275,928 398,711 1.45 3,780,000 12/10/96 72 60 90 Units 30,307
256,449 310,689 1.21 4,150,000 5/9/97 64 57 75,430 Sq Ft 35
231,794 270,335 1.17 3,200,000 10/29/96 83 75 80 Units 33,000
268,444 422,436 1.57 4,400,000 8/24/95 59 42 192 Units 13,619
251,959 357,743 1.42 3,600,000 10/2/95 73 38 83,862 Sq Ft 31
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
248,159 337,150 1.36 3,700,000 4/1/97 70 63 44,532 Sq Ft 58
219,564 274,106 1.25 3,450,000 8/23/96 73 61 96 Units 26,300
272,649 391,513 1.44 4,200,000 8/23/96 60 55 40,960 Sq Ft 61
239,046 367,323 1.54 4,100,000 6/24/97 61 50 120 Rooms 20,833
279,639 458,686 1.64 3,350,000 4/3/97 75 54 117 Rooms 21,368
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
233,017 301,971 1.30 3,400,000 4/15/97 73 65 67,592 Sq Ft 37
239,651 309,403 1.29 3,600,000 6/9/97 69 57 52,419 Sq Ft 48
228,630 333,584 1.46 3,700,000 4/2/97 65 58 36,788 Sq Ft 65
241,689 379,567 1.57 4,500,000 1/12/97 53 44 72,773 Sq Ft 33
231,905 310,979 1.34 3,250,000 5/19/97 74 60 161 Units 14,878
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
234,326 248,326 1.06 3,000,000 2/4/97 80 72 148 Units 16,172
224,703 313,732 1.40 3,100,000 6/27/97 76 62 61 Rooms 38,525
234,080 351,087 1.50 3,800,000 3/17/97 60 50 23,400 Sq Ft 98
233,890 310,801 1.33 3,600,000 1/20/97 64 53 24,449 Sq Ft 94
219,015 219,015 1.00 2,500,000 7/12/97 90 0 32,400 Sq Ft 70
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
230,425 313,594 1.36 3,030,000 3/18/97 75 62 124 Units 18,218
244,495 244,496 1.00 2,400,000 2/22/95 94 0 15,258 Sq Ft 148
265,880 368,074 1.38 3,275,000 4/23/97 69 0 195 Pads 11,507
223,264 248,392 1.11 3,000,000 11/19/96 75 62 45,954 Sq Ft 49
195,423 251,195 1.29 2,950,000 7/28/97 76 66 21,938 Sq Ft 102
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
230,656 387,559 1.68 3,070,000 2/10/96 71 65 92,654 Sq Ft 24
223,704 244,681 1.09 3,480,000 8/15/95 63 44 100 Units 21,791
243,344 316,162 1.30 3,160,000 3/10/97 67 52 35,000 Sq Ft 60
191,271 248,558 1.30 2,800,000 5/9/97 75 66 30,852 Sq Ft 68
215,982 315,649 1.46 3,100,000 2/25/97 68 56 46,900 Sq Ft 45
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
222,365 275,175 1.24 3,000,000 5/27/96 69 63 78,800 Sq Ft 26
194,335 309,712 1.59 3,200,000 4/1/97 64 57 40,306 Sq Ft 51
179,630 249,268 1.39 3,200,000 3/4/97 63 55 38,507 Sq Ft 52
205,532 267,627 1.30 2,900,000 2/12/97 69 62 18,344 Sq Ft 109
191,640 237,441 1.24 2,625,000 6/2/97 76 62 126 Units 15,857
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
197,314 256,226 1.30 2,550,000 4/11/97 78 70 81 Units 24,622
187,145 229,810 1.23 2,330,000 7/25/97 85 63 60 Units 32,917
188,143 275,547 1.46 3,300,000 4/4/97 60 53 43,740 Sq Ft 45
182,753 246,992 1.35 2,600,000 6/3/97 75 67 50 Units 38,954
183,856 247,032 1.34 2,950,000 4/3/97 65 58 33,104 Sq Ft 58
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
199,820 270,917 1.36 2,700,000 11/20/96 71 64 44,854 Sq Ft 43
189,127 253,386 1.34 2,650,000 2/3/97 71 59 67,092 Sq Ft 28
175,592 225,693 1.29 2,620,000 12/6/96 71 63 128 Units 14,471
192,420 430,220 2.24 4,400,000 Various 42 36 150 Beds 12,319
156,765 1,700,000 3/6/97 52 Beds
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
<PAGE>
273,455 2,700,000 3/5/97 98 Beds
182,496 242,770 1.33 3,120,000 10/12/96 59 49 60,700 Sq Ft 30
190,117 258,951 1.36 2,400,000 5/1/96 76 69 74,855 Sq Ft 25
171,472 220,962 1.29 2,450,000 4/2/97 73 66 28,595 Sq Ft 63
187,422 279,307 1.49 2,575,000 6/7/96 68 58 21,769 Sq Ft 81
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
169,771 209,948 1.24 2,500,000 11/30/95 70 52 43,226 Sq Ft 41
169,873 233,076 1.37 2,250,000 12/5/96 78 68 46,434 Sq Ft 38
192,332 435,466 2.26 2,600,000 2/27/97 67 0 74 Beds 23,614
177,785 246,594 1.39 2,500,000 2/18/97 69 58 61 Rooms 28,336
166,957 207,570 1.24 2,625,000 11/30/95 66 49 64,000 Sq Ft 27
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
175,176 206,088 1.18 2,530,000 3/11/97 68 57 151 Pads 11,404
174,702 251,327 1.44 2,530,000 4/9/97 67 56 43,665 Sq Ft 39
169,453 231,777 1.37 2,400,000 2/18/97 71 58 19,777 Sq Ft 86
174,253 225,468 1.29 2,750,000 4/3/97 62 46 52,400 Sq Ft 32
173,992 257,893 1.48 2,500,000 8/24/95 68 48 66 Units 25,680
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
171,453 231,668 1.35 2,100,000 4/2/97 78 66 126 Units 13,051
156,150 190,867 1.22 2,020,000 4/16/97 80 65 130 Units 12,431
159,485 209,894 1.32 2,100,000 10/22/96 76 50 77,480 Sq Ft 21
146,873 178,605 1.22 2,050,000 7/25/97 76 56 39 Units 39,744
158,581 276,078 1.74 2,400,000 8/23/95 64 46 120 Units 12,873
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
155,328 250,506 1.61 3,300,000 1/10/97 46 40 90 Beds 16,926
153,824 212,341 1.38 2,200,000 2/20/97 69 57 47,185 Sq Ft 32
153,156 283,230 1.85 3,550,000 1/6/97 42 28 154 Units 9,706
162,311 290,068 1.79 2,700,000 11/22/96 53 28 11,300 Sq Ft 130
149,690 182,029 1.22 1,950,000 1/17/97 75 62 16,620 Sq Ft 88
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
146,153 200,707 1.37 2,340,000 8/23/95 61 43 96 Units 14,830
122,942 142,721 1.16 2,050,000 9/4/96 69 58 68 Units 20,790
132,046 177,793 1.35 2,080,000 5/27/97 67 63 10,250 Sq Ft 137
147,126 193,282 1.31 1,950,000 6/12/97 72 50 18,840 Sq Ft 74
132,909 170,300 1.28 2,000,000 6/24/97 70 57 18,694 Sq Ft 75
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
123,500 148,361 1.20 1,960,000 7/17/97 71 62 39 Units 35,897
139,550 200,940 1.44 2,100,000 1/1/97 67 55 37,382 Sq Ft 37
142,426 183,429 1.29 2,000,000 2/7/97 70 58 25,777 Sq Ft 54
132,886 142,608 1.07 1,900,000 2/26/97 74 69 116 Units 12,048
142,715 187,969 1.32 2,300,000 3/5/97 61 51 75,260 Sq Ft 19
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
149,711 196,472 1.31 2,450,000 3/6/97 57 48 36,521 Sq Ft 38
140,985 219,630 1.56 2,280,000 1/15/97 61 51 23,697 Sq Ft 59
141,515 167,127 1.18 2,020,000 11/3/95 68 62 72 Units 19,143
155,413 222,827 1.43 2,425,000 3/5/85 57 49 34,715 Sq Ft 40
137,790 172,113 1.25 2,000,000 11/18/96 68 57 60 Units 22,812
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
157,864 308,405 1.95 1,950,000 1/22/97 70 51 62 Rooms 22,057
132,252 158,995 1.20 1,975,000 12/5/95 69 51 26,179 Sq Ft 52
168,453 260,148 1.54 1,800,000 10/3/96 75 0 6,298 Sq Ft 215
166,591 170,026 1.02 2,400,000 8/1/85 57 53 30,500 Sq Ft 45
138,666 202,082 1.46 1,820,000 5/28/97 74 0 65,687 Sq Ft 21
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
134,566 228,421 1.70 2,300,000 3/7/97 59 48 15,000 Sq Ft 90
170,346 214,573 1.26 2,000,000 12/5/96 66 0 65,931 Sq Ft 20
139,106 190,267 1.37 1,750,000 9/1/97 74 0 131 Pads 9,909
130,972 137,540 1.05 2,000,000 7/1/96 65 45 60 Units 21,568
123,021 155,900 1.27 1,680,000 11/20/96 75 67 138 Units 9,096
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
144,753 175,183 1.21 1,900,000 1/20/97 66 48 61 Rooms 20,422
123,322 439,079 3.56 2,700,000 1/9/97 46 39 117 Beds 10,641
143,513 176,322 1.23 1,850,000 2/21/97 67 0 47,389 Sq Ft 26
121,288 161,152 1.33 1,850,000 5/12/97 65 54 23,344 Sq Ft 51
134,227 177,604 1.32 1,600,000 5/8/97 75 0 8,600 Sq Ft 139
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
120,447 159,278 1.32 1,885,000 6/4/97 64 44 21,600 Sq Ft 55
118,465 153,365 1.29 1,600,000 10/15/96 75 67 25 Units 47,822
117,484 155,770 1.33 2,100,000 1/23/97 55 46 93,240 Sq Ft 12
111,828 148,341 1.33 1,600,000 2/24/97 72 64 11,408 Sq Ft 101
113,456 142,261 1.25 1,600,000 4/21/97 72 59 62 Units 18,514
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
98,573 136,581 1.39 1,900,000 9/4/96 60 50 54 Units 20,991
113,292 150,926 1.33 1,670,000 3/21/97 67 56 72,287 Sq Ft 16
117,630 187,368 1.59 1,575,000 1/9/97 70 29 30,360 Sq Ft 36
118,787 164,383 1.38 1,500,000 7/25/96 73 62 33 Units 33,039
119,949 253,364 2.11 1,750,000 3/7/96 62 57 22,770 Sq Ft 48
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
109,047 127,132 1.17 1,680,000 3/20/97 63 53 25,500 Sq Ft 42
110,345 160,191 1.45 1,330,000 4/15/97 79 34 85 Units 12,334
94,404 174,197 1.85 2,350,000 3/26/96 42 38 40 Units 24,797
105,888 128,500 1.21 1,570,000 7/12/96 63 43 7,875 Sq Ft 126
117,797 288,062 2.45 1,800,000 6/4/96 55 26 110 Rooms 8,983
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
<PAGE>
105,289 136,809 1.30 1,220,000 3/20/97 80 67 43,925 Sq Ft 22
102,222 131,756 1.29 1,540,000 7/19/96 63 53 43,374 Sq Ft 22
92,195 128,183 1.39 1,350,000 5/13/97 69 57 14,152 Sq Ft 66
88,118 136,563 1.55 1,850,000 4/3/97 50 45 31,090 Sq Ft 30
96,358 151,817 1.58 1,200,000 5/7/98 69 0 27,000 Sq Ft 30
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
87,358 128,920 1.48 1,365,000 11/6/96 60 51 8,600 Sq Ft 94
86,391 111,688 1.29 1,270,000 2/15/97 63 43 31,802 Sq Ft 25
99,523 135,395 1.36 1,250,000 4/10/97 64 0 46,690 Sq Ft 17
81,216 135,439 1.67 850,000 6/7/96 90 76 6,442 Sq Ft 118
74,759 115,070 1.54 1,000,000 6/24/97 75 49 40 Units 18,750
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
79,573 98,523 1.24 1,000,000 3/6/97 75 63 30,780 Sq Ft 24
77,074 110,721 1.44 1,030,000 1/27/97 72 49 39 Units 19,130
79,911 111,079 1.39 1,150,000 11/7/96 64 54 33,825 Sq Ft 22
72,003 98,114 1.36 1,000,000 6/11/97 71 29 50 Pads 14,287
80,367 99,276 1.24 1,000,000 1/29/97 70 51 30,450 Sq Ft 23
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
65,821 103,952 1.58 980,000 2/11/97 65 44 4,400 Sq Ft 147
73,583 120,275 1.63 1,170,000 11/13/96 53 0 12,300 Sq Ft 51
66,839 80,538 1.20 1,035,000 5/10/95 59 51 10,850 Sq Ft 56
67,062 93,134 1.39 880,000 7/29/96 69 59 15,000 Sq Ft 41
67,383 85,856 1.27 940,000 4/3/97 64 0 37 Units 16,181
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
65,448 115,071 1.76 975,000 4/8/97 59 43 20,886 Sq Ft 27
56,767 90,395 1.59 950,000 2/11/97 58 39 7,610 Sq Ft 73
55,534 85,061 1.53 885,000 12/10/96 59 48 8,779 Sq Ft 61
52,422 77,560 1.48 780,000 9/27/96 64 0 21 Units 23,670
53,432 75,373 1.41 825,000 8/29/96 59 50 8,042 Sq Ft 60
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
53,009 126,325 2.38 1,065,000 1/10/97 42 0 20,400 Sq Ft 22
46,547 75,675 1.63 700,000 5/9/97 62 44 40 Units 10,858
50,690 69,435 1.37 620,000 12/4/96 69 0 4,000 Sq Ft 108
52,871 104,438 1.98 625,000 2/10/97 68 47 32 Units 13,213
46,719 79,410 1.70 900,000 3/25/96 44 0 6,560 Sq Ft 60
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
37,641 77,265 2.05 825,000 5/23/97 45 37 32 Units 11,552
39,708 55,064 1.39 650,000 10/26/95 57 48 11,822 Sq Ft 31
38,908 50,759 1.30 570,000 1/15/97 61 52 2,847 Sq Ft 123
38,536 48,243 1.25 560,000 8/6/96 62 43 4,105 Sq Ft 85
31,766 43,944 1.38 560,000 7/17/95 53 36 7,181 Sq Ft 41
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
32,438 56,539 1.74 475,000 2/3/97 61 44 24 Units 11,997
29,272 36,869 1.26 435,000 9/18/95 64 54 6,380 Sq Ft 43
35,627 45,951 1.29 475,000 5/31/96 52 0 4,445 Sq Ft 56
23,590 33,512 1.42 300,000 2/20/97 75 63 24 Pads 9,375
21,608 27,083 1.25 335,000 4/22/97 55 0 3,544 Sq Ft 52
- --------- ------------ ------------ ---------- --------- ------- -------- --------- --------- -------------
21,277 41,687 1.96 265,000 1/17/97 62 0 22 Units 7,408
</TABLE>
<PAGE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
UNDERWRITTEN LARGEST
TOTAL CAPITAL TENANT CREDIT
OCCUPANCY OCCUPANCY UNDERWRITTEN RESERVES AREA LEASED LEASE LEASE
PERCENTAGE AS OF DATE RESERVES PER UNIT/SQ FT LARGEST TENANT NAME (SQ. FT.) EXP. DATE LOAN
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
<C> <C> <C> <C> <C> <C> <C> <C>
87 6/3/97 818,750 0.20 NYC Dept Gnrl Svcs, Queens 67,147 2/6/07
100 7/14/97 0 0.00 Circuit City Stores, Inc. 382,579 1/31/20 Yes
281,400 300.00
97 6/30/97
98 6/30/97
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
98 6/30/97
99 6/30/97
99 6/30/97
98 6/30/97
96 7/21/97 438,932 0.14 Technicolor Videocassette 749,700 6/30/03
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
114,504 250.01
99 12/31/96
97 12/31/96
94 12/31/96
98 7/1/97 646,987 0.20 BIMC 30,000 10/1/05
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 844,043 2215.34
96 3/20/97 175,750 250.00
99 1/15/97 184,173 0.00 Giant Food Store 53,800 10/30/10
86 5/15/97 239,832 267.67
100 1/1/97 71,944 0.15 Farmer Jack 58,128 12/1/16
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 280,000 1147.54 Sulamaria, LLC 1,548 7/31/06
122,508 284.90
99 12/31/96
86 12/31/96
95 12/31/96
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 6/1/97 234,954 0.10 State of California-Health 218,272 9/30/01
Service
100 8/1/97 80,534 0.10 Wal Mart 114,760 10/28/10
408,436 0.11
100 12/10/96 Sportmart Inc. 140,920 5/31/02
96 12/10/96 Argonne National 94,304 4/19/01
Laboratory
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 12/10/96 BKDA Corp. 91,111 3/26/01
100 12/10/96 VSA, Inc. 148,416 3/19/02
99 12/1/96 0.00
94 7/8/97 435,391 0.22 Wyatt Company 25,872 6/30/98
93 6/1/97 225,852 0.15 Laemmle Theatre 15,147 3/31/03
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
96 3/3/97 44,000 243.09 Broadway Love, Inc. 3,280 4/30/20
100 6/1/97 129,508 0.10 Dept. of General 123,736 6/30/09
Services-State of CA
100 2/28/97 232,643 0.25 Private Label 11,842 12/31/06
Manufacturers Assn.
86 4/30/97 0 0.00
99 12/30/96 50,500 250.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 355,000 1606.33
97 5/28/97 167,667 0.15 Kmart 108,928 9/30/13
100 6/30/97 88,753 0.25 QuikResponse Services, 63,360 6/30/10
Inc.
81 3/1/97 28,800 50.00
100 5/13/97 25,125 0.15 Condyne Freezers, Inc. 167,500
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
86 3/1/97 25,900 50.00 Schlotzky's Deli 23,600 6/30/05
337,253 0.35 0
87 6/4/97 New Jersey Dept of Health 40,000 1/31/98
100 6/4/97 Unisys 41,736
100 1/7/97 87,285 0.16 Kmart 86,479 7/31/15
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
98 1/7/97 29,897 0.10 Shop Rite 62,000 4/27/08
100 4/24/97 42,511 0.10 Dick's Clothing& Sporting 60,000 9/30/15
91 7/31/97 46,000 250.00
100 7/8/97 64,991 0.10 Builders Square #1310 109,800 7/31/19
85 6/16/97 94,672 0.19 Food 4 Less 62,501 1/1/17
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 7/11/97 0 0.00 Car Max Auto Superstores, 53,042 7/31/19 Yes
Inc.
100 3/31/97 84,611 0.15 Express #764 8,999 11/30/09
97 5/20/97 85,440 240.00
94 7/1/97 277,509 0.22 Algerian Embassy 15,614 4/30/98
100 2/1/97 72,759 0.15 Strouds, Inc. 32,743 10/31/06
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 300,000 1923.08
100 1/15/97 66,262 0.10 Super Fresh 40,184 8/31/12
99 7/18/97 36,636 211.77
NAP NAP 198,000 1164.71
100 7/31/97 0 0.00 Circuit City Stores, Inc. 53,072 7/31/19 Yes
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 210,000 1489.36
97 7/3/97 28,885 0.15
100 7/25/97 194,104 0.25 Armstrong World Industries 219,525 3/31/05
57,800 0.14
100 4/28/97 Christmas Tree Shops 57,776 9/30/13
<PAGE>
UNDERWRITTEN LARGEST
TOTAL CAPITAL TENANT CREDIT
OCCUPANCY OCCUPANCY UNDERWRITTEN RESERVES AREA LEASED LEASE LEASE
PERCENTAGE AS OF DATE RESERVES PER UNIT/SQ FT LARGEST TENANT NAME (SQ. FT.) EXP. DATE LOAN
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
88 1/16/97 Staveley Sensors, Inc. 20,000 3/31/97
77 1/1/97 49,244 0.20 Federal Express 29,700 9/30/02
100 7/8/97 51,241 0.10 K-Mart Corporation 118,242 11/30/19
100 7/7/97 51,062 0.10 Builders Square #1002 109,800 9/30/20
98 6/30/97 70,722 0.35 Bank of America 8,118 10/31/05
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 168,096 1159.28
100 7/21/97 0 0.00 Circuit City Stores, Inc. 53,042 7/31/19 Yes
NAP NAP 114,552 0.00
95 11/18/96 77,810 0.24 The Hit Factory, Inc. 33,950 10/31/03
94 5/2/97 71,612 275.43
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 174,050 966.94
96 6/17/97 51,040 220.00
100 7/7/97 67,439 0.10 CompUSA f/k/a PC's 47,129 1/1/02
Compleat
84 2/17/97 118,103 0.20 Union Physical Therapy 3,000 11/30/99
86 3/26/97 19,272 0.10 Just For Feet 16,564 11/18/09
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
95 4/16/97 43,050 175.00
98 1/1/97 248,072 0.10 CNS, Inc. 37,754 3/31/98
100 5/1/97 96,318 0.25 Bank of Yorba Linda 9,000 6/30/02
98 4/22/97 72,704 0.20 Associates Wholesale 65,968 11/30/19
Grocery
99 5/16/97 96,628 0.25 Kroger 86,500 11/30/06
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 159,000 1325.00
98 1/17/97 104,656 0.15 Federal Express 60,963 2/28/04
100 6/12/97 39,674 237.57
60,698 374.68
94 2/14/97
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 2/14/97 Nicholas Fitzgerald Law 1,590 1/31/98
Office
95 4/3/97 Presto Inc. Italian 1,200 1/31/00
Restaurant
81 2/14/97
100 2/14/97
82 2/14/97 Renee A. Wilson-Frederick 2,000 2/28/98
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
82 2/17/97 1,590
100 2/14/97 J. C. Video 1,100 1/31/04
100 3/24/97 33,108 0.08 Techmedia Computer Systems 172,246 3/13/09
Corporation
100 5/22/97 141,232 388.00
NAP NAP 172,744 814.83
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
89 12/2/96 133,500 250.00
100 9/1/97 0 0.00 Price Chopper 94,808 5/31/20 Yes
97 6/1/97 64,800 270.00
92 4/7/97 104,840 0.15 SRS Medical(A) 8,872 12/7/00
100 1/13/97 0 0.00 Circuit City 33,255 3/1/17 Yes
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
88 12/1/96 16,850 50.00
98 1/1/97 53,629 0.15 Golden State 67,618 5/31/99
Porcelain/Togyo
83,600 192.67
97 2/15/97
98 7/14/97
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
93 6/17/97 25,872 231.00
100 3/12/97 0 0.00 Builder's Square 107,388 12/9/17
100 7/18/97 38,437 289.00
98 5/23/97 47,940 255.00
100 3/27/97 93,792 0.10 Dollar Tree Stores, Inc. 261,400 6/17/05
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 321,962 0.00
91 3/1/97 107,819 0.18 West Telemarketing 54,855 10/1/06
100 4/8/97 105,353 0.15 Shaw Data Services 39,358 12/31/05
90 3/1/97 95,750 0.15 GSA 48,200 12/31/01
119,519 0.20
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 4/29/97 Pen-Del Directory 47,472 12/13/00
100 1/31/96 Questpoint 14,983 2/28/01
100 9/1/97 0 0.00 Price Chopper 77,000 5/31/20 Yes
98 1/31/96 33,600 200.00
98 4/30/97 12,650 50.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 5/6/97 140,680 0.15 US West, Inc. 26,450 2/28/01
96 6/25/97 49,000 250.00
95 5/21/97 128,870 0.15 Continental Security 5,490 9/30/98
100 4/18/97 26,974 0.15 The Pep Boys 11,700 5/31/02
67,480 0.31
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 5/14/97 Kmart Corporation 86,479 4/30/14
100 2/6/97 Wal Mart 41,304 2/27/07
96 5/21/97 127,963 0.15 Bklyn. Psychiatric Centers 8,862 6/30/98
95 3/6/97 70,255 0.16 Vermont Federal Bank 34,086 8/31/00
91 4/29/97 234,202 0.15 Peoples Americana, Inc. 26,950 4/1/09
<PAGE>
UNDERWRITTEN LARGEST
TOTAL CAPITAL TENANT CREDIT
OCCUPANCY OCCUPANCY UNDERWRITTEN RESERVES AREA LEASED LEASE LEASE
PERCENTAGE AS OF DATE RESERVES PER UNIT/SQ FT LARGEST TENANT NAME (SQ. FT.) EXP. DATE LOAN
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
90 6/5/97 34,132 0.27 Top Nails 3,300 6/30/00
100 12/31/96 34,539 0.10 The Developers of Nevada & 22,560 9/30/00
ESI
97 1/29/97 42,343 0.20
100 2/13/97 64,361 0.32 Kmart 88,872 5/1/14
97 3/31/97 21,200 200.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 12/17/96 0 0.00 Lowe's Stores 125,360 10/31/16
NAP NAP 143,920 695.27
94 7/5/97 16,949 0.15
98 5/5/97 34,425 225.00
91 6/10/97 36,000 200.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
93 4/4/97 81,310 0.20 Acme Bag Company (2528-A) 7,770 8/31/01
100 12/31/96 0 0.00 Circuit City 32,873 2/28/17 Yes
100 5/15/97 29,400 200.00
100 2/19/97 0 0.00 Circuit City 43,684 1/31/18
93 1/16/97 75,168 0.23 Winn Dixie 41,071 4/4/99
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 5/8/97 27,273 0.18 Big 5 Sporting Goods 9,625 1/1/06
100 5/31/97 73,958 0.20 Citibank 40,000 7/31/05
100 5/27/97 50,874 0.20 Zoompy Fashion 6,394 3/31/98
97 5/5/97 52,000 250.00
90 2/20/97 46,426 0.15 Millers Outpost (4-103) 15,000 1/31/98
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 210,000 972.22
97 1/24/97 26,071 51.83
NAP NAP 85,000 988.37
89 3/1/97 95,000 250.00
100 12/31/96 24,500 250.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 6/1/95 13,196 0.10 Office Max 23,282 7/1/15
100 6/4/97 56,946 0.15 Domino's Pizza 37,580 9/30/00
Distributing
100 5/2/97 105,575 0.10 Nextel 15,000 3/1/07
100 6/10/96 44,305 0.29 Kmart 67,332 10/1/13
89 6/19/97 38,250 255.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 6/4/97 22,400 0.15 MS Desserts, Inc. 56,000 8/26/05
100 4/16/97 57,910 0.30 K Mart 86,479 5/31/14
24 6/25/97 31,000 250.00
88 6/18/97 32,000 250.00
98 8/7/97 86,944 0.19 J. Byron 44,000 7/31/03
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
92 5/23/97 63,500 0.20 City of New York 40,000 12/1/10
92 3/27/97 24,200 200.00
88 5/21/97 35,504 0.15 11301 -Bally's Fitness 15,000 5/1/99
Center
100 9/1/97 0 0.00 General Hospital Corp. 84,500 9/30/05
92 4/17/97 15,250 250.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 3/13/97 23,547 0.06 K-Mart Corporation 99,992 6/30/14
99 3/26/97 18,513 153.00
NAP NAP 83,970 0.00
89 3/1/97 85,164 0.15 Thiel Audio 28,940 8/31/99
100 1/1/97 34,778 0.15 Wal-Mart* 86,944 1/31/10
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
87 3/25/97 32,430 230.00
87 3/1/97 59,105 0.15 Vista Paint Store 11,640 5/1/07
100 8/1/96 7,409 0.20 South Brooklyn Nephrology 8,978 12/31/07
Center, Inc.
97 6/20/97 14,732 254.00
100 1/1/97 0 0.00 Circuit City 32,587 2/28/17 Yes
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 8/15/97 67,244 0.25 Old America 25,400 5/30/05
100 7/25/97 71,250 0.15 Holson-Burnes Group 409,406 5/31/05
100 5/20/97 53,394 0.20 Matress Discounters 105,384 6/21/04
97 3/31/97 30,619 0.12 B. Dalton Bookseller, Inc. 14,318 6/30/02
100 7/7/97 62,500 250.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
94 4/2/97 120,041 0.20 Snow Christensen & 52,726 3/31/02
Martineau 1000
90 1/27/97 81,000 250.00
100 1/13/97 0 0.00 Circuit City 33,225 2/28/17 Yes
100 4/10/97 27,614 0.20 Modell's 15,000 3/31/17
100 5/20/97 27,764 0.10 Mattress Discounters 102,160 11/30/06
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
99 12/13/96 19,200 160.00
92 3/1/97 102,477 0.10 MGF Industries 308,490 9/30/99
88 4/28/97 90,987 0.11 Barton Cotton, Inc. 50,588 3/31/99
100 5/8/97 0 0.00 The Sports Authority 42,442 11/30/18
91 8/1/97 77,552 0.15 All Jays/Cappy Transport 103,000 9/30/00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
85 4/18/97 85,751 345.77
100 3/31/97 62,707 0.10 Federal Express 24,016 10/31/06
Corporation
85 2/18/97 15,449 0.15
92 2/16/97 10,988 0.15
NAP NAP 78,724 517.92
<PAGE>
UNDERWRITTEN LARGEST
TOTAL CAPITAL TENANT CREDIT
OCCUPANCY OCCUPANCY UNDERWRITTEN RESERVES AREA LEASED LEASE LEASE
PERCENTAGE AS OF DATE RESERVES PER UNIT/SQ FT LARGEST TENANT NAME (SQ. FT.) EXP. DATE LOAN
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
93 6/18/97 33,600 280.00
91 7/1/97 47,326 0.20 Goodwill Industries 13,000 7/31/05
100 9/1/97 0 0.00 Sports Authority 42,886 8/31/19
84 1/30/97 91,332 258.00
100 4/29/97 23,167 0.10 Gieseck & Devrient 40,600 8/1/06
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
91 3/27/97 20,000 200.00
100 7/14/97 12,800 200.00
100 7/29/97 130,164 0.18 Orlando Shader Public Whs. 100,000 12/31/20
96 6/30/97 61,488 0.15 Century 21 6,663 2/21/99
90 6/15/97 11,790 0.15
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 5/27/97 32,740 0.10 The CATO Corporation 6,000 1/31/04
93 7/23/97 65,239 0.16 Burlington Coat Factory 60,000 7/31/08
94 6/2/97 51,328 0.15 Surety Title -JM 4,844 5/31/97
94 6/4/97 39,369 0.15 Pavsner Press, Inc. 21,600 12/31/98
96 7/1/97 8,425 1.28 Village Crown 1,750 7/31/06
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
94 5/31/97 23,750 250.00
100 10/1/97 8,400 0.15 Just For Feet, Inc. 14,708 2/28/17
94 6/10/97 30,422 287.00
95 5/22/97 24,750 250.00
100 6/25/97 42,000 250.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 3/13/97 38,650 0.15 State of CT-Dept. of Labor 35,600 12/1/98
100 1/8/97 61,331 0.15 W/E Savage Industries 20,687 1/31/01
100 3/17/97 25,858 0.10 VWR Corporation 15,940 3/12/00
NAP NAP 159,883 1343.55
100 6/30/97 23,129 0.15 The Association for the 9,950 5/31/02
Blind
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 6/1/97 27,000 300.00
97 5/1/97 99,809 0.13 AT&T 32,480 1/14/02
99 6/1/97 18,400 230.00
77 12/13/96 44,160 230.00
100 6/4/97 37,824 0.15 Lauman's Furniture 23,800 2/28/99
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
99 6/6/97 62,025 0.20 Learn America / Silver 4,000 1/31/99
Creek
94 3/26/97 19,200 200.00
100 11/5/96 51,625 0.15 Society for Seamen's 35,300 10/31/06
Children
NAP NAP 62,884 524.03
NAP NAP 56,955 486.79
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 4/1/97 18,723 0.10 Northeast Distributors 40,000 5/31/99
79 7/1/97 34,851 0.31 PEICO Engineering 7,600 4/30/02
100 6/2/97 43,885 0.15 GEAC / Promotion, Inc 10,511 7/31/97
100 3/26/97 55,060 0.15 Golds Gym 27,914 10/31/05
96 4/25/97 40,250 250.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
91 3/13/97 35,816 242.00
NAP NAP 43,485 712.87
100 5/1/97 27,907 0.15 Los Angeles County Mental 23,400 2/1/07
Heal
93 5/1/97 33,717 0.35 CASSIDY'S 6,000 6/30/01
100 7/12/97 0 0.00 Circuit City Stores, Inc. 32,400 7/31/19 Yes
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
91 3/1/97 31,000 250.00
100 12/30/96 0 0.00 Circuit City 15,258 2/28/17 Yes
98 3/1/97 9,750 50.00
100 10/1/96 38,456 0.15 Food Lion, Inc. 25,000 9/11/10
100 7/15/97 13,909 0.15 Shaw's CarpetSmart 16,013 1/15/07
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
96 4/30/97 13,898 0.15
88 12/13/96 25,000 250.00
100 2/25/97 6,650 0.19 Vertex Parmaceuticals, 35,000 12/31/03
Inc.
100 5/9/97 34,156 0.26 SCME Mortgage Bankers 12,508 5/31/04
100 3/1/97 7,035 0.15
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
75 6/24/97 11,820 0.15
98 6/2/97 46,027 0.15 Wasatch / Paragon #1,#2, & 11,111
#3
100 6/30/97 39,161 0.06 Cusa 32,663 2/1/05
100 1/6/97 20,813 0.15 Cincinnati Innkeepers 4,575 9/1/00
98 4/30/97 40,320 320.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
96 4/24/97 18,800 232.10
98 6/11/97 15,000 250.00
100 2/18/97 40,259 0.08 Proswood Companies 10,920 2/28/99
100 6/18/97 15,350 307.00
98 6/4/97 45,484 0.18 Wardley Corp 9,112 6/30/98
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
83 4/21/97 6,728 0.15
78 5/30/97 10,064 0.15
92 8/25/97 32,000 250.00
0 0.00
85 8/31/96
<PAGE>
UNDERWRITTEN LARGEST
TOTAL CAPITAL TENANT CREDIT
OCCUPANCY OCCUPANCY UNDERWRITTEN RESERVES AREA LEASED LEASE LEASE
PERCENTAGE AS OF DATE RESERVES PER UNIT/SQ FT LARGEST TENANT NAME (SQ. FT.) EXP. DATE LOAN
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
86 8/31/96 0 0
88 2/17/97 9,105 0.15
98 6/26/97 11,228 0.15
85 6/6/97 30,961 0.15 Pulte Home Corp. 4,855 7/31/00
100 12/1/96 14,058 0.15 Norwalk Savings 3,808 10/1/06
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 4/29/97 15,372 0.10 Catalink Direct, Inc. 33,204 12/31/97
93 5/31/97 10,542 0.23 Crabtree, Rolthbaugh & 1,475 1/31/97
Associates
99 12/31/96 18,500 250.00 Sun Valley Child Care 19,079 12/31/01
Center
NAP NAP 37,260 610.82
100 4/29/97 21,120 0.10 Graphic Data 51,200 9/30/99
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 5/1/97 7,550 50.00
96 6/6/97 6,550 0.15
100 2/18/97 15,408 0.16 Radio Shack 3,190 6/30/00
100 3/17/97 15,481 0.10 Tower Glass/Design 32,400 1/31/00
Services
98 1/15/97 14,895 225.68
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
89 3/31/97 31,500 250.00
98 4/1/97 39,000 300.00
100 12/1/96 15,496 0.20
100 7/25/97 8,775 225.00
93 12/13/96 30,000 250.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
98 6/9/97 0 0.00
87 5/30/97 7,078 0.15
94 4/9/97 46,200 300.00
100 12/17/96 10,390 0.15 Haji Q. Inc. 11,300 2/28/01
100 1/1/97 11,011 0.15 Rite Aid 6,720 11/30/08
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
91 1/15/97 24,864 259.00
94 3/26/97 19,040 280.00
100 1/20/97 15,564 0.20 Lyon's Restaurant 5,250 9/30/12
100 6/1/97 5,840 0.31
98 6/26/97 15,712 0.25 Nautilus Pharmacy 3,658 11/30/98
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 6/1/97 11,700 300.00
80 4/30/97 33,026 0.31 Royal Gym (211) 5,047 10/31/99
100 4/1/97 11,499 0.15 San Francisco Furniture 15,341 10/31/01
Outlet
91 4/30/97 29,000 250.00
98 6/4/97 11,289 0.15
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 2/28/97 13,102 0.10 Paul/Georgia Christopher 21,840 8/31/98
(14333 Bessemer
100 3/19/97 9,876 0.15 Chinese Buffet (Azteca) 6,500 12/30/00
92 6/1/97 14,760 205.00
96 4/1/97 34,138 0.20 Bio Serve 7,802 11/30/01
97 3/18/97 18,180 303.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 34,975 564.11
100 4/29/97 39,369 0.10 Valley Forse Technical 14,922 2/29/00
100 10/3/96 38,487 6.11
100 4/19/96 11,303 0.15 Memtek Corp 30,500 11/30/05
85 6/5/97 27,545 0.20 TOMOCO 10,474 monthly
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
93 5/12/97 3,000 0.20 Attendant Vendor Agency, 7,000 10/31/00
Inc
88 6/1/97 9,890 0.15
99 6/1/97 6,550 50.00
92 7/10/96 18,000 300.00
99 3/25/97 42,780 310.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
NAP NAP 36,380 596.39
88 1/9/97 0 0.00
97 6/30/97 7,108 0.15
99 4/11/97 26,978 0.15 Rocket Labs 4,945 5/31/99
100 9/1/97 11,748 0.68 Rite Aid of New York,Inc 8,600 10/31/11
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 9/1/97 11,304 0.15 The Grand Union Company 21,600 1/31/28
93 6/3/97 5,000 200.00
84 1/1/97 52,708 0.15 Stripling & Cox 56,964 10/1/00
100 4/28/97 19,736 0.15 State of New York Dept. of 11,408 2/28/07
Ed.
87 4/29/97 15,500 250.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
98 3/26/97 16,038 297.00
94 5/22/97 23,413 0.15 Summers Group, Inc. 9,450 6/14/00
100 1/1/97 4,554 0.15
94 7/31/96 6,600 200.00
96 2/26/96 8,733 0.15 Karate School 2,500 5/31/98
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 5/1/97 27,506 0.18 Candy D.D., Inc. dba 4,030 12/31/97
Arthur Murray Dance
89 4/30/97 29,750 350.00
100 4/30/97 10,000 250.00
100 7/1/96 5,402 0.16 Putumayo 3,500 12/1/00
NAP NAP 42,422 385.65
<PAGE>
UNDERWRITTEN LARGEST
TOTAL CAPITAL TENANT CREDIT
OCCUPANCY OCCUPANCY UNDERWRITTEN RESERVES AREA LEASED LEASE LEASE
PERCENTAGE AS OF DATE RESERVES PER UNIT/SQ FT LARGEST TENANT NAME (SQ. FT.) EXP. DATE LOAN
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 4/30/97 6,589 0.15
100 1/27/97 10,844 0.25 Tabernacle of Praise 7,545 12/31/00
Church
100 5/1/97 14,548 0.20 Movies to You 2,438 6/1/00
100 6/4/97 32,483 0.15 Discovery Dental 7,303 12/31/00
96 5/1/97 7,814 0.29
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 11/1/95 5,367 0.15 Chief Auto Parts 4,200 9/3/00
95 5/31/97 4,770 0.15
87 6/18/97 4,770 0.10
100 10/21/96 11,180 0.30 Sidetracks Restaurant 5,000 8/1/03
95 6/25/97 12,000 300.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
98 4/15/97 4,617 0.15
100 12/1/96 9,750 250.00
85 4/30/97 5,074 0.15
100 6/11/97 3,700 74.00
100 5/31/97 8,365 0.15 Custom Mobile Equipment, 30,450 7/30/11
LTD
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 2/1/97 660 0.15
100 12/1/96 7,389 0.15 Araz Grocery 1,800 6/1/01
100 6/1/95 2,081 0.19 Steve's Hand Car Wash
100 7/1/96 5,884 0.15 Rizzo Trucking 15,000
100 4/3/97 11,100 300.00
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
100 4/1/97 7,101 0.34
100 2/1/97 1,142 0.00
100 10/1/96 1,317 0.15
100 8/17/96 5,250 250.00
85 12/31/96 1,229 0.15 PWS Inc. 2,400 7/6/98
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
80 11/13/96 9,011 0.15
94 12/31/96 10,000 250.00
100 10/17/96 3,683 0.16 Mukdar Trading 4,000 12/31/00
94 6/1/96 8,000 250.00
100 1/26/96 3,182 0.20 Bank Street Brewing Co. 10,718 3/31/11
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
94 4/1/97 9,600 300.00
100 8/15/95 1,773 0.15 Someone's In The Kitchen 6,000
100 2/1/97 1,996 0.15
100 9/26/96 2,308 0.20 S & S Food service 2,271 9/1/16
100 7/1/95 2,397 0.20 Luke's Auto Body 5,141 3/1/12
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
99 12/10/96 6,000 250.00
100 9/1/95 1,016 0.16 Owner 6,380
100 7/24/96 1,286 0.29 Rainbow Dry Cleaners 1,200 2/22/97
100 5/1/97 1,200 50.00
100 4/1/97 2,020 0.57
- ---------- ---------- ------------ -------------- -------------------------- ----------- --------- ------
86 1/1/97 6,050 275.00
</TABLE>
<PAGE>
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of September 25, 1997, 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., Fitch
Investors Service, L.P. 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
September 1, 1997 (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 LaSalle National Bank as trustee (in such capacity,
the "Trustee") and ABN AMRO Bank N.V. as fiscal agent. 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 Deutsche Morgan
Grenfell, Lehman Brothers Inc., Morgan Stanley & Co. Incorporated, Residential
Funding Securities Corp. and Llama Company, L.P. (together, the "Underwriters")
pursuant to an underwriting agreement dated the date hereof (the "Underwriting
Agreement"). The Purchaser intends to sell the remaining Certificates (the
"Non-Registered Certificates") to Deutsche Morgan Grenfell Inc. and Lehman
Brothers Inc. (the "Initial Purchasers"), pursuant to 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:
<PAGE>
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 September 30, 1997
or such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on September 1, 1997 (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
$1,696,984,278.05, subject to a variance of plus or minus 5%. 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 agrees that, at least five (5) Business Days
before the Closing Date, it shall have delivered to and deposited with the
Trustee, the Mortgage File (as described on Exhibit B hereto) for each Mortgage
Loan so assigned. It is further acknowledged and agreed by the Seller that the
Purchaser intends to cause the Trustee to perform a limited review of such
Mortgage Files to enable the Trustee to confirm to the Purchaser on or before
the Closing Date that the Mortgage Note referred to in clause (i) of Exhibit B
has been delivered by the Seller with respect to each such Mortgage File. In
the event Seller fails to so deliver each such Mortgage File to the Trustee,
the Purchaser and its successors and assigns shall be entitled to pursue any
rights or remedies in respect of such failure as may be available under
applicable law. 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
-2-
<PAGE>
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 Trustee, 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 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
Trustee 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 Trustee shall be authorized to release to the
Purchaser or its designee all of the Mortgage Files in the Trustee'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
-3-
<PAGE>
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.
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 organized, 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
-4-
<PAGE>
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, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) 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.
(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 Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller the outcome of which, in the Seller's
good faith and reasonable judgment, could reasonably be expected to
prohibit the Seller from entering into this Agreement or materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers 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.
-5-
<PAGE>
(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-7 through A-12, 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
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.
(x) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any
bulk sale laws), for the execution, delivery and performance of or
compliance by the Seller with this Agreement, or the consummation by
the Seller of any transaction contemplated hereby, other than (1) the
filing or recording of financing statements, instruments of assignment
and other similar documents
-6-
<PAGE>
necessary in connection with Seller's sale of the Mortgage Loans
to the Purchaser, (2) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been
obtained or made and (3) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(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 C 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.
(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
-7-
<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 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, the Initial Purchasers 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),
provided, however, that in lieu of effecting any such repurchase, the Seller
will be permitted to deliver a Qualifying Substitute Mortgage Loan and to pay a
cash amount equal to the applicable Substitution Shortfall Amount, subject to
the terms and conditions of the Pooling and Servicing Agreement.
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
-8-
<PAGE>
Loan Schedule shall be deemed to amend and replace the existing Mortgage Loan
Schedule for all purposes.
(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, or
if a Mortgage is subject to something other than (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, (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 and (D) those
exceptions set forth on Schedule A to Exhibit C hereto (the exceptions set
forth in the foregoing clauses (A), (B),(C) and (D) collectively, "Permitted
Encumbrances"), or if the insurer that issued the Title Policy referred to in
clause (vi) of Exhibit C hereto in respect of any Mortgage Loan was not
qualified to do business in the state in which the related Mortgaged Property
is located, and in either case such failure materially and adversely affects
the interests of holder of Certificates, (any such failure that materially and
adversely affects the interests of holders of Certificates, also a "Material
Breach"), the Seller shall be required, at its option, to either (i) cure such
Material Breach in all material respects or (ii) repurchase the affected
Mortgage Loan, in each case, within the applicable Permitted Cure Period. If
any such Material Breach is not corrected or cured in all material respects
within the applicable Permitted Cure Period, the Seller shall, not later than
the last day of such Permitted Cure Period, (i) repurchase the affected
Mortgage Loan from the Purchaser or its assignee at the applicable Purchase
Price or (ii) if within the three-month period commencing on the closing date
(or within the two-year period commencing on the Closing Date if the related
Mortgage Loan is a "defective obligation" within the meaning of Section
860(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), at
its option, replace such Mortgage Loan with a Qualifying Substitute Mortgage
Loan and pay any corresponding Substitution Shortfall Amount. The Seller agrees
that any such repurchase or substitution shall be completed in accordance with
and subject to the terms and conditions of the Pooling and Servicing Agreement.
For purposes of the foregoing, and subject to the following paragraph,
the "Permitted Cure Period" applicable to any Defect or Material Breach in
respect of any Mortgage Loan shall be the 90-day period immediately following
the earlier of the discovery bye the Seller or receipt by the Seller of notice
of such Defect or Material Breach, as the case may be; provided that if such
Defect or Material Breach, as the case may be, cannot be corrected or cured in
all material respects within such 90-day period, but is reasonably likely that
such Defect or Material Breach, as the case may be, could be corrected or cured
within 180 days of the earlier of discovery by
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the Seller and receipt by the Seller of notice of such Material Documents
Defect or Material Breach, as the case may be, and the Seller is diligently
attempting to effect such correction or cure, then the applicable Permitted
Cure Period shall, with the consent of the Purchaser or its assignee (which
consent shall not be unreasonably withheld), be extended for an additional 90
days.
(c) In connection with any repurchase of or substitution for 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) Except as provided in Section 2(b), 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 or
its successors and assigns 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 Mayer, Brown & Platt, 1675 Broadway, 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 Cutoff Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (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;
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(iii) The Seller shall have delivered and released to the
Trustee, 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;
(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 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 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) Written opinions of counsel for the Seller, substantially in the
form of Exhibits D-3A and D-3B hereto and subject to such reasonable
assumptions and qualifications
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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 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,
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the Loan Detail. This indemnity agreement will be in addition to any liability
which the Seller may otherwise have.
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 September
15, 1997, as supplemented by the prospectus supplement dated September 25, 1997
(the "Prospectus Supplement"), relating to the Registered Certificates;
"Memorandum" shall mean the private placement memorandum dated September 25,
1997, relating to the Non-Registered 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").
(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,
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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, (ii) any investigation made by any
indemnified party, and (iii) acceptance of and payment for any of the
Certificates.
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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:
Structured Finance Manager, facsimile no. (215) 328-1775, with a copy to the
General Counsel, GMAC Commercial Mortgage Corporation, 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: Structured Finance Manager, facsimile no. (215)
328-1775, with a copy to GMAC Commercial Mortgage Corporation, 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 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
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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 WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES EXCEPT THAT 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.
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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 under
Section 12 hereof without the prior consent of that person.
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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: /s/ Elisa George
-------------------------------
Name: Elisa George
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Elisa George
-------------------------------
Name: Elisa George
Title: Senior Vice President
S-1
<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 or a Fixed-Rate
Loan;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity, (B) with respect
to each ARD Loan, the Anticipated Repayment Date and (C)
Stated Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of an 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) whether such Mortgage Loan is an ARD Loan or a Defeasance
Loan; and
(xi) the Master Servicing Fee Rate.
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.
[The Mortgage Loan Schedule consists of those loans marked "GACC" on
Schedule I to the Pooling and Servicing Agreement]
A-1
<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 LaSalle National Bank, as trustee for the
registered holders of GMAC Commercial Mortgage Securities,
Inc., Mortgage Pass-Through Certificates, Series 1997-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;
B-1
<PAGE>
(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 together with (A) if
applicable, the original or copies of any intervening
assignments of such guaranty showing a complete chain of
assignment from the originator of the Mortgage Loan to the
most recent assignee thereof prior to the Trustee, if any,
and (B) an original assignment of such guaranty executed by
the most recent assignee thereof prior to the Trustee or, if
none, by the originator;
(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 Trustee and (B) if any
such security interest is perfected and the earlier UCC
financing statements and continuation statements were in the
possession of the 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,
B-2
<PAGE>
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 or the Trustee, such term shall not be
deemed to include such documents and instruments required to be included
therein unless they are actually so received. The original assignments referred
to in clauses (iii), (v), (vii) and (x)(B), may be in the form of one or more
instruments in recordable form in any applicable filing offices.
B-3
<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) Ownership of Mortgage Loans. 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 directly service such
Mortgage Loan). Such transfer validly assigns ownership of such Mortgage Loan
to the Purchaser free and clear of any pledge, lien, encumbrance or security
interest.
(ii) Authority to Transfer Mortgage Loans. 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) Mortgage Loan Schedule. 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) Payment Record. Such Mortgage Loan was not as of the Cut-off
Date, and has not been during the twelve-month period prior thereto, 30 days or
more delinquent in respect of any debt service payment required thereunder,
without giving effect to any applicable grace period.
(v) Permitted Encumbrances. The Permitted Encumbrances (as defined in
the Mortgage Loan Purchase Agreement of which this Exhibit C forms a part) 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 Mortgaged Property to generate net
operating income sufficient to service the Mortgage Loan. If the Mortgaged
Property is operated as a nursing facility, a hospitality property or a
multifamily property, the Mortgage, together with any separate security
agreement, similar agreement and UCC financing statement, if any, establishes
and creates a first priority, perfected security interest, to the extent such
security interest can be perfected by the recordation of a Mortgage or the
filing of a UCC financing statement, in all personal property owned by the
Mortgagor that is used in, and is reasonably necessary to, the operation of the
related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by
an ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable
C-1
<PAGE>
jurisdiction, issued by a nationally recognized title insurance company,
insuring the originator of such Mortgage Loan, its successors and assigns, as
to the first priority lien of the Mortgage in the original principal amount of
the 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 the Mortgage Loan, a policy meeting the foregoing description is
evidenced by a commitment for title insurance "marked-up" at the closing of
such loan). Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have
been paid and, to the Seller's knowledge, no material claims have been made
thereunder and no claims have been paid thereunder. The Seller has not, by act
or omission, done anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the benefit of the
Trustee without the consent of or notice to the insurer.
(vii) No Waivers by Seller of Material Defaults. The Seller has not
waived any material default, breach, violation or event of acceleration
existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid
offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of
the commencement of a proceeding for the condemnation of all or any material
portion of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage 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
C-2
<PAGE>
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) Insurance. To the Seller's actual knowledge, all improvements
upon the related Mortgaged Property 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 replacement cost of the improvements located on such
Mortgaged Property and 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 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 such
Mortgaged Property. In addition, the Mortgage requires the Mortgagor to
maintain in respect of the Mortgaged Property comprehensive general liability
insurance in amounts generally required by the Seller, and at least six months
rental or business interruption insurance, and all such insurance required by
the Mortgage to be maintained is in full force and effect. Each such insurance
policy re quires prior notice to the holder of the Mortgage of termination or
cancellation, and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured.
(xiv) Environmental Condition. 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 conditions 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. The related Mortgage or
loan documents in the related Mortgage File requires the Mortgagor to comply
with all applicable federal, state and local environmental laws and
regulations.
C-3
<PAGE>
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will not
be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and
the Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage
File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties
would be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. The interest of
the related Mortgagor in the related Mortgaged Property consists of a fee
simple estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. 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 Trustee. The
Assignment of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related
Mortgage, and each assignor thereunder has the full right to assign the same.
The related assignment of any Assignment of Leases, not included in a Mortgage,
executed and delivered in favor of the Trustee is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that
are, as of the Closing Date, required to be deposited with the mortgagee or its
agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. 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.
C-4
<PAGE>
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, 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 lay 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), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel and/or other due diligence customarily performed
by the Seller, the improvements located on or forming part of such Mortgaged
Property comply in all material respects with applicable zoning laws and
ordinances (except to the extent that they may constitute legal non-conforming
uses).
(xxiv) Originator Authorized. 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) No Material Default. (A) To the Seller's knowledge, there exists
no material default, breach or event of acceleration under the related Mortgage
or Mortgage Note, and (B) 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 or addressed by any other representation and warranty made by
the Seller herein.
(xxvi) Adjustable Mortgage Rate. If the Mortgage Loan has an
adjustable Mortgage Rate, all of the terms of the related Mortgage Note
pertaining to interest rate adjustments, payment adjustments and adjustments of
the principal balance are enforceable and such adjustments will not affect the
priority of the lien of the related Mortgage, 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) No Equity Participation or Contingent Interest. The Mortgage
Loan contains no equity participation by the lender, and does not provide for
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. 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.
C-5
<PAGE>
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor or operator of the related Mortgaged Property 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 if a related Mortgaged Property is improved by a skilled
nursing, congregate care or assisted living facility, the most recent
inspection or survey by governmental authorities having jurisdiction in
connection with such licenses, permits and authorizations did not cite such
Mortgaged Property for material violations (which shall include only "Level A"
(or equivalent) violations in the case of skilled nursing facilities) that had
not been cured or as to which a plan of correction had not been submitted to
and accepted by such governmental authorities.
(xxx) Servicing. 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
8.1 of the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. 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) Insurance and Condemnation Proceeds. The related Mortgage
provides 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 holder of the Mortgage.
(xxxiii) LTV. 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)).
C-6
<PAGE>
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it 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) [Intentionally Omitted.]
(xxxvi) Litigation. To the Seller's actual knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the related Mortgagor 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.
(xxxvii) [Intentionally Omitted.]
(xxxviii) Deed of Trust. 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.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment of
a release price, the related Mortgage Note or Mortgage does not require the
holder thereof to release all or any portion of the Mortgaged Property from the
lien of the related Mortgage except upon payment in full of all amounts due
under such Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage without the prior written consent of the
holder thereof or the satisfaction of debt service coverage or similar
conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor
is not a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Due Organization of Mortgagors. As of the date of origination
of each Mortgage, each related Mortgagor which is not a natural person was duly
organized and validly existing under the laws of the state of its jurisdiction.
C-7
<PAGE>
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 and/or the Trustee 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.
C-8
<PAGE>
SCHEDULE A TO EXHIBIT C
1. Willow Oaks Shopping Center (Loan No. GMAC 1040)
Lease to tenant Superfresh is not subordinated to the lien of the
Mortgage.
2. Denville Technical Center (Loan No. GMAC 3150)
Lien of the Mortgage is subject to the terms of an administrative consent
order relating to certain environmental contamination and remediation.
C-9
<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 September 25, 1997
(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.
D-1-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of September __, 1997.
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 September __, 1997.
By:
--------------------------------
Name:
Title:
D-1-2
<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
September 25, 1997 (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 ___st day of September __, 1997.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:
--------------------------------
Name:
Title:
D-2-3
<PAGE>
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
September 30, 1997
To: Persons on Annex A
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C1
Ladies and Gentlemen:
I am General Counsel to GMAC Commercial Mortgage Corporation (the
"Seller"). In that capacity, I am familiar with the issuance of certain
Mortgage Pass-Through Certificates, Series 1997-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 September 1, 1997 (the "Pooling
and Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc. (the
"Company") as depositor, the Seller as master servicer and special servicer and
LaSalle National Bank as trustee (the "Trustee") and ABN AMRO Bank, N.V. as
fiscal agent.
Certain of the Mortgage Loans were purchased by the Company from
ContiTrade Services L.L.C. ("Conti"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of September 25,
1997 (the "Conti Mortgage Loan Purchase Agreement"), between Conti and the
Company. Certain of the Mortgage Loans were purchased by the Company from the
Seller, pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of September 25, 1997 (the "GMACCM Mortgage Loan
Purchase Agreement"), between the Company and the Seller. Certain of the
Mortgage Loans were purchased by the Company from German American Capital
Corporation ("GACC"), pursuant to, and for the consideration described in, the
Mortgage Loan Purchase Agreement, dated as of September 25, 1997 (the "GACC
Mortgage Loan Purchase Agreement"), between GACC and the Company. The Pooling
and Servicing Agreement and the GMACCM Mortgage Loan Purchase Agreement are
referred to herein together as the "Agreements". Capitalized terms not defined
herein have the meanings set forth in the Agreements. This opinion is rendered
pursuant to Section 8(e) of the GMACCM Mortgage Loan Purchase Agreement.
The Company has sold the Class X, Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E and Class F Certificates (collectively, the
"Publicly Offered Certificates") to Deutsche Morgan Grenfell Inc. and Lehman
Brothers Inc. as representatives (the "Representatives") for themselves and the
other underwriters (the "Underwriters") named in the Underwriting Agreement,
D-3A-1
<PAGE>
September 30, 1997 Page 2
dated as of September 25, 1997 (the "Underwriting Agreement"), among the
Company, the Seller, and the Representatives, and sold the Class G, Class H,
Class J, Class K, Class R-I, Class R-II and Class R-III Certificates
(collectively, the "Privately Offered Certificates") to Deutsche Morgan
Grenfell Inc. and Lehman Bothers Inc. as initial purchasers (the "Initial
Purchasers") pursuant to the Certificate Purchase Agreement, dated as of
September 25, 1997 (the "Certificate Purchase Agreement"), among the Company,
the Seller and the Initial Purchasers.
In connection with rendering this opinion letter, I have examined or
have caused persons under my supervision to examine 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, the Seller, 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 Seller 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] the Seller, 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 Seller 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.
D-3A-2
<PAGE>
September 30, 1997 Page 3
2. Each of the Agreements has been duly and validly authorized, executed and
delivered by the Seller and, upon due authorization, execution and delivery by
the other parties thereto, will constitute the valid, legal and binding
agreements of the Seller, enforceable against the Seller 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.
3. No consent, approval, authorization or order of the Commonwealth of
Pennsylvania, or federal court or governmental agency or body is required for
the consummation by the Seller of the transactions contemplated by the terms of
the Agreements, except for those consents, approvals, authorizations or orders
which previously have been obtained.
4. Neither the consummation of any of the transactions contemplated by, nor the
fulfillment by the Seller of any other of the terms of, the Agreements, will
result in a material breach of any term or provision of the charter or bylaws
of the Seller or any Commonwealth of Pennsylvania or federal statute or
regulation or conflict with, result in a material breach, violation or
acceleration of or constitute a material default under the terms of any
indenture or other material agreement or instrument to which the Seller 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 the Seller.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity, except Mayer, Brown & Platt, is entitled
to rely hereon without 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,
Maria Corpora-Buck
General Counsel
D-3A-3
<PAGE>
Annex A
GMAC Commercial Mortgage Securities, Inc.
Deutsche Morgan Grenfell Inc.
Lehman Brothers Inc.
Llama Company, L.P.
Morgan Stanley & Co. Incorporated
Residential Funding Securities Corporation
LaSalle National Bank
ABN AMRO Bank N.V.
Fitch Investors Service, L.P.
Moody's Investor's Service, Inc.
Standard & Poor's Ratings Services
D-3A-4
<PAGE>
September 30, 1997 Page 1
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
September 30, 1997
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C1
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as special
counsel to GMAC Commercial Mortgage Corporation ("GMACCM"), pursuant to Section
8(e) of the Mortgage Loan Purchase Agreement, dated September 25, 1997 (the
"GMACCM Mortgage Loan Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. (the "Purchaser") and GMACCM as the Seller, (in such capacity
the "Seller"), relating to the sale by the Seller of certain mortgage loans
(the "Mortgage Loans"), and pursuant to Section 6.11 of the Underwriting
Agreement, dated September 25, 1997, between the Purchaser and Deutsche Morgan
Grenfell Inc. and Lehman Brothers Inc., relating to that certain Pooling and
Servicing Agreement, dated as of September 1, 1997, among GMACCM as special
servicer and master servicer (in such respective capacities, the "Special
Servicer" and the "Master Servicer"), Purchaser, LaSalle National Bank, as
trustee, and ABN AMRO Bank, N.V., as fiscal agent, (the "Pooling and Servicing
Agreement", and together with the GMACCM Mortgage Loan Purchase Agreement, the
"Agreements"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Agreements.
In rendering this opinion, we have examined and relied upon executed
copies of the Agreements and originals or copies, certified or otherwise
identified to our satisfaction, of such certificates and other documents as we
have deemed appropriate for the purposes of rendering this opinion. We have
examined and relied upon, among other things, the documents and opinions
delivered to you at the closing being held today relating to the Certificates,
as well as (a) the Prospectus and the Memorandum, (b) an executed copy of the
Mortgage Loan Purchase Agreement, and (c) an executed copy of the Pooling and
Servicing Agreement.
D-3B-1
<PAGE>
September 30, 1997 Page 2
In conducting our examination, we have assumed, without
investigation, the legal capacity of all natural persons, the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies and the authenticity of the originals of such
latter documents. We have, with your permission, also relied upon the opinion
of even date herewith of Maria Corpora-Buck, Esq., General Counsel to GMACCM,
addressed to you. As to any facts material to the opinions expressed herein
which were not independently established or verified, we have relied upon oral
or written statements and representations of officers and other representatives
of GMACCM and others.
We are members of the bar of the State of New York and do not
purport to be experts on or to express any opinion herein concerning any laws
other than the laws of the State of New York and the federal laws of the United
States of America. We express no opinion herein as to the laws of any other
jurisdiction.
Based upon the matters stated herein and upon such investigation as
we have deemed necessary, we are of the opinion that the Agreements have been
duly authorized, executed and delivered by GMACCM and, upon due authorization,
execution and delivery by the Purchaser, will each constitute a valid, legal
and binding agreement of GMACCM, enforceable against GMACCM in accordance with
its respective 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 and (b) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law.
In rendering the opinions expressed above, we express no opinion
regarding any severability provision in the Agreements or regarding the legal,
valid and binding effect or the enforceability of any indemnification provision
in the Agreements to the extent that any such provisions may be deemed to cover
matters under the federal securities laws. The opinions expressed above are
subject to the further qualification that certain of the remedial provisions in
the Agreements may be limited or rendered ineffective or unenforceable in whole
or in part under the laws of the State of New York (but the inclusion of such
provisions does not make the remedies provided by the Agreements inadequate for
the practical realization of the rights and benefits purported to be provided
thereby, except for the economic consequences of procedural or other delay).
We have not ourselves checked the accuracy or completeness of, or
otherwise independently verified, the information furnished with respect to the
Prospectus or the Memorandum. In addition, as you are aware, we did not examine
or review the Mortgage Files. However, in the course of the preparation by the
Purchaser of the Prospectus and the Memorandum, we have participated in
conferences with certain officers of GMACCM, the Purchaser, counsel to the
Purchaser and your representatives, during which the contents of
D-3B-2
<PAGE>
September 30, 1997 Page 3
the Prospectus and the Memorandum and related matters were discussed. On the
basis of the discussions referred to above, although we are not passing upon,
and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Prospectus and the Memorandum, and
without independent check or verification except as stated, no facts have come
to our attention that have caused us to believe that either the Prospectus or
the Memorandum (other than financial and statistical data included or not
included therein or incorporated by reference therein, as to which we express
no opinion), as of its issue date, contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Whenever our opinion with respect to the existence or absence of
facts is indicated to be based on our knowledge or awareness, we are referring
to the actual knowledge of the Mayer, Brown & Platt attorneys who have
represented you in connection with the transactions contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation to determine the existence or absence of such facts
and no inference as to our knowledge concerning such facts should be drawn from
the fact that such representation has been undertaken by us.
This letter is limited to the specific issues addressed herein and
the opinion rendered above is limited in all respects to laws and facts
existing on the date hereof. By rendering this opinion, we do not undertake to
advise you with respect to any other matter or of any change in such laws or
facts or in the interpretations of such laws which may occur after the date
hereof.
We are furnishing this opinion to you solely for your benefit. This
opinion is not to be used, circulated, quoted or otherwise referred to for any
other purpose, except that the persons listed on Exhibit A hereto may rely upon
this opinion in connection with their rating of the Certificates to the same
extent as if this opinion had been addressed to them.
Very truly yours,
MAYER, BROWN & PLATT
D-3B-3
<PAGE>
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of September 25, 1997, between German American Capital 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., Fitch
Investors Service, L.P. 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
September 1, 1997 (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 LaSalle National Bank as trustee (in such capacity,
the "Trustee") and ABN AMRO Bank N.V. as fiscal agent. 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 Deutsche Morgan
Grenfell, Lehman Brothers Inc., Morgan Stanley & Co. Incorporated, Residential
Funding Securities Corp. and Llama Company, L.P. (together, the "Underwriters")
pursuant to an underwriting agreement dated the date hereof (the "Underwriting
Agreement"). The Purchaser intends to sell the remaining Certificates (the
"Non-Registered Certificates") to Deutsche Morgan Grenfell Inc. and Lehman
Brothers Inc. (the "Initial Purchasers), pursuant to 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:
<PAGE>
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 September 30, 1997
or such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on September 1, 1997 (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
$1,696,984,278.05, subject to a variance of plus or minus 5%. 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 agrees that, at least five (5) Business Days
before the Closing Date, it shall have delivered to and deposited with the
Trustee, the Mortgage File (as described on Exhibit B hereto) for each Mortgage
Loan so assigned. It is further acknowledged and agreed by the Seller that the
Purchaser intends to cause the Trustee to perform a limited review of such
Mortgage Files to enable the Trustee to confirm to the Purchaser on or before
the Closing Date that the Mortgage Note referred to in clause (i) of Exhibit B
has been delivered by the Seller with respect to each such Mortgage File. In
the event Seller fails to so deliver each such Mortgage File to the Trustee,
the Purchaser and its successors and assigns shall be entitled to pursue any
rights or remedies in respect of such failure as may be available under
applicable law. 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
2
<PAGE>
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 Trustee, 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 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
Trustee 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 Trustee shall be authorized to release to the
Purchaser or its designee all of the Mortgage Files in the Trustee'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
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<PAGE>
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.
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 organized, validly existing
and in good standing under the laws of the State of Maryland, and is
in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure
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<PAGE>
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, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) 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.
(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 Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller the outcome of which, in the Seller's
good faith and reasonable judgment, could reasonably be expected to
prohibit the Seller from entering into this Agreement or materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers, 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.
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<PAGE>
(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-7 through A-12, 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
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.
(x) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any
bulk sale laws), for the execution, delivery and performance of or
compliance by the Seller with this Agreement, or the consummation by
the Seller of any transaction contemplated hereby, other than (1) the
filing or recording of financing statements, instruments of assignment
and other similar documents
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<PAGE>
necessary in connection with Seller's sale of the Mortgage Loans
to the Purchaser, (2) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been
obtained or made and (3) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(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 C 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.
(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
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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 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, the Initial Purchasers 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),
provided, however, that in lieu of effecting any such repurchase, the Seller
will be permitted to deliver a Qualifying Substitute Mortgage Loan and to pay a
cash amount equal to the applicable Substitution Shortfall Amount, subject to
the terms and conditions of the Pooling and Servicing Agreement.
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
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<PAGE>
Loan Schedule shall be deemed to amend and replace the existing Mortgage Loan
Schedule for all purposes.
(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 or substitution for 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) Except as provided in Section 2(b), 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 or
its successors and assigns 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 Mayer, Brown & Platt, 1675 Broadway, 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 Cutoff Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly
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executed and delivered by all signatories as required pursuant to
the respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee, 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;
(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 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 Maryland, 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;
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(e) Written opinions of counsel for the Seller, substantially in the
form of Exhibits D-3A and D-3B 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 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
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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. This indemnity agreement will be
in addition to any liability which the Seller may otherwise have.
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 September
15, 1997, as supplemented by the prospectus supplement dated September 25, 1997
(the "Prospectus Supplement"), relating to the Registered Certificates;
"Memorandum" shall mean the private placement memorandum dated September 25,
1997, relating to the Non-Registered 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").
(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
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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, (ii) any investigation made by any
indemnified party, and (iii) acceptance of and payment for any of the
Certificates.
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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:
Structured Finance Manager, facsimile no. (215) 328-1775, with a copy to the
General Counsel, GMAC Commercial Mortgage Corporation, 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 German American Capital
Corporation, at 31 W. 52nd Street, New York, New York 10019, Attention: Steven
S. Stuart facsimile no. (212) 469-7210, 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 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
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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 WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES EXCEPT THAT 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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manner which would have a material adverse effect on any third party
beneficiary under Section 12 hereof without the prior consent of that person.
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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.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Joel C. Horne
------------------------------------
Name: Joel C. Horne
Title: Authorized Signatory
By: /s/ Robert Burns
------------------------------------
Name: Robert Burns
Title: Vice President
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Elisa George
------------------------------------
Name: Elisa George
Title: Senior Vice President
<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;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity (B) with respect to
each ARD Loan, the Anticipated Repayment Date and (C) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of an 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) whether such Mortgage Loan is an ARD Loan or a Defeasance
Loan; and
(xi) the Master Servicing Fee Rate.
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.
[The Mortgage Loan Schedule consists of those Loans marked "GACC",
"Paul Revere" and "Boston Capital" on Schedule I to the Pooling and Servicing
Agreement]
A-1
<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 LaSalle
National Bank, as trustee for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 1997-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;
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(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 together with (A) if
applicable, the original or copies of any intervening
assignments of such guaranty showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent assignee thereof prior to the Trustee, if any, and (B)
an original assignment of such guaranty executed by the most
recent assignee thereof prior to the Trustee or, if none, by
the originator;
(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 Trustee and (B) if any such security interest
is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the 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,
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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 or the Trustee, such term shall not be
deemed to include such documents and instruments required to be included
therein unless they are actually so received. The original assignments referred
to in clauses (iii), (v), (vii) and (x)(B), may be in the form of one or more
instruments in recordable form in any applicable filing offices.
B-3
<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) Ownership of Mortgage Loans. 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 directly service such
Mortgage Loan). Such transfer validly assigns ownership of such Mortgage Loan
to the Purchaser free and clear of any pledge, lien, encumbrance or security
interest.
(ii) Authority to Transfer Mortgage Loans. 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) Mortgage Loan Schedule. 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) Payment Record. Such Mortgage Loan was not as of the Cut-off
Date, and has not been during the twelve-month period prior thereto, 30 days or
more delinquent in respect of any debt service payment required thereunder,
without giving effect to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes 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"). 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 Mortgaged Property to generate net operating income
sufficient to service the Mortgage Loan. If the Mortgaged Property is operated
as a nursing facility, a hospitality property or a multifamily property, the
Mortgage, together with any separate security agreement, similar agreement and
UCC financing statement, if any, establishes and creates a first priority,
perfected security interest, to the
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extent such security interest can be perfected by the recordation of a Mortgage
or the filing of a UCC financing statement, in all personal property owned by
the Mortgagor that is used in, and is reasonably necessary to, the operation of
the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by
an ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its
successors and assigns, as to the first priority lien of the Mortgage in the
original principal amount of the 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 the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the
coverage under such Title Policy. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee, such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) will inure to
the benefit of the Trustee without the consent of or notice to the insurer. To
the Seller's actual knowledge, the insurer that issued such Title Policy is
qualified to do business in the state in which the related Mortgaged Property
is located,
(vii) No Waivers by Seller of Material Defaults. The Seller has not
waived any material default, breach, violation or event of acceleration
existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid
offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of
the commencement of a proceeding for the condemnation of all or any material
portion of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
C-2
<PAGE>
(xii) Enforceability. The related Mortgage Note and Mortgage 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) Insurance. To the Seller's actual knowledge, except as set
forth on Exhibit C-1 attached hereto, all improvements upon the related
Mortgaged Property 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
replacement cost of the improvements located on such Mortgaged Property and 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 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 such Mortgaged Property. In
addition, except as set forth on Exhibit C-1, the Mortgage requires the
Mortgagor to maintain in respect of the Mortgaged Property comprehensive
general liability insurance in amounts generally required by the Seller, and at
least six months rental or business interruption insurance, and all such
insurance required by the Mortgage to be maintained is in full force and
effect. Each such insurance policy requires prior notice to the holder of the
Mortgage of termination or cancellation, and no such notice has been received,
including any notice of nonpayment of premiums, that has not been cured.
(xiv) Environmental Condition. 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 conditions 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
C-3
<PAGE>
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. The
related Mortgage or loan documents in the related Mortgage File requires the
Mortgagor to comply with all applicable federal, state and local environmental
laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will not
be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and
the Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage
File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties
would be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except in the case
of nine Mortgage Loans as to which the interest of the related Mortgagor in the
related Mortgaged Property is in whole or in part a leasehold estate, the
interest of the related Mortgagor in the related Mortgaged Property consists of
a fee simple estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. 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 Trustee. The
Assignment of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related
Mortgage, and each assignor thereunder has the full right to assign the same.
The related assignment of any Assignment of Leases, not included in a Mortgage,
executed and delivered in favor of the Trustee is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
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<PAGE>
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that
are, as of the Closing Date, required to be deposited with the mortgagee or its
agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. Except as set forth on
Exhibit C-1 attached hereto, 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 Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, 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 lay 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), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel and/or other due diligence customarily performed
by the Seller, the improvements located on or forming part of such Mortgaged
Property comply in all material respects with applicable zoning laws and
ordinances (except to the extent that they may constitute legal non-conforming
uses).
(xxiv) Originator Authorized. 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) No Material Default. (A) To the Seller's knowledge, there exists
no material default, breach or event of acceleration under the related Mortgage
or Mortgage Note, and (B) 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 or addressed by any other representation and warranty made by
the Seller herein.
(xxvi) Adjustable Mortgage Rate. If the Mortgage Loan has an
adjustable Mortgage Rate, all of the terms of the related Mortgage Note
pertaining to interest rate adjustments, payment adjustments and adjustments of
the principal balance are enforceable and such adjustments will not affect the
priority of the lien of the related Mortgage, 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.
C-5
<PAGE>
(xxvii) No Equity Participation or Contingent Interest. The Mortgage
Loan contains no equity participation by the lender, and does not provide for
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. 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) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor or operator of the related Mortgaged Property 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 if a related Mortgaged Property is improved by a skilled
nursing, congregate care or assisted living facility, the most recent
inspection or survey by governmental authorities having jurisdiction in
connection with such licenses, permits and authorizations did not cite such
Mortgaged Property for material violations (which shall include only "Level A"
(or equivalent) violations in the case of skilled nursing facilities) that had
not been cured or as to which a plan of correction had not been submitted to
and accepted by such governmental authorities.
(xxx) Servicing. 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
8.1 of the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. 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) Insurance and Condemnation Proceeds. The related Mortgage
provides 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 holder of the Mortgage,
except that with respect to the Credit Lease Loans, the proceeds will go to the
tenant unless there is an event of default under the Credit Lease.
(xxxiii) LTV. 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
C-6
<PAGE>
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) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it 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) Credit Lease Loans. With respect to each Mortgage Loan which is
a credit lease loan (a "Credit Lease Loan"):
(a) To the Seller's knowledge, each credit lease ("Credit Lease")
contains customary and enforceable provisions which render the
rights and remedies of the lessor thereunder adequate for the
enforcement and satisfaction of the lessor's rights thereunder;
(b) To the Seller's knowledge, in reliance on a tenant estoppel
certificate and representation made by the tenant under the
credit lease or representations made by the related borrower
under the Mortgage Loan documents, as of the closing date of each
Credit Lease Loan (a) each credit lease was in full force and
effect, and no default by the borrower or the tenant has occurred
under the credit lease, nor 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 the Credit
Lease, (b) none of the terms of the credit lease have been
impaired, waived, altered or modified in any respect (except as
described in the related tenant estoppel), (c) no tenant has been
released, in whole or in part, from its obligations under the
credit leases, (d) there is no right of rescission, offset,
abatement, diminution, defense or counterclaim to any credit
lease, nor will the operation of any of the terms of the credit
leases, or the exercise of any rights thereunder, render the
credit lease unenforceable, in whole or in part, or subject to
any right of rescission, offset, abatement, diminution, defense
or counterclaim, and no such right of rescission, offset,
abatement, diminution, defense or
C-7
<PAGE>
counterclaim has been asserted with respect thereto and (e) each
credit lease has a term ending on or after the final maturity of
the related Credit Lease Loan;
(c) To the Seller's knowledge, the Mortgaged Property is not subject
to any lease other than the related Credit Lease, no Person has
any possessory interest in, or right to occupy, the Mortgaged
Property except under and pursuant to such Credit Lease and the
tenant under the related Credit Lease is in occupancy of the
Mortgaged Property;
(d) The lease payments under the related Credit Lease are sufficient
to pay the entire amount of scheduled interest and principal on
the Credit Lease Loan, subject to the rights of the Tenant to
terminate the Credit Lease or offset, abate, suspend or otherwise
diminish any amounts payable by the tenant under the Credit Lease
which have been disclosed to Purchaser, each Credit Lease Loan
fully amortizes over its original term, and, there is no
"balloon" payment of rent due under the Credit Leases;
(e) Under the terms of the Credit Leases, the lessee is not permitted
to assign its interest or obligations under the Credit Lease
unless such lessee remains fully liable thereunder;
(f) The mortgagee is entitled to notice of any event of default from
the tenant under Credit Leases;
(g) Each tenant under a Credit Lease is required to make all rental
payments directly to the mortgagee, its successors and assigns
under the related Credit Lease Loan;
(h) Each Credit Lease Loan provides that the related Credit Lease
cannot be modified without the consent of the mortgages
thereunder; and
(i) Each Credit Lease Loan under which a Credit Lease may be
terminated upon the occurrence of a casualty or condemnation
requires upon such termination the payment in full by the Tenant
of: (a) the principal balance of the loan and (b) all accrued and
unpaid interest on the Mortgage Loan. Under the Credit Lease for
each Credit Lease Loan, upon the occurrence of a casualty or
condemnation the Tenant has no right of rent abatement.
(xxxvi) Litigation. To the Seller's actual knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the related Mortgagor 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.
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<PAGE>
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple estate in real estate or, if the related
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 (a "Ground Lease"), by
the related Mortgagor's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest") or if the Mortgage
Loan is secured in whole or in part by a Ground Lease and a 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 (or the related estoppel letter or lender protection
agreement between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected
in written instruments that are a part of the related Mortgage
File;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than 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;
(d) Such Ground Lease is in full force and effect, and the Seller has
received no notice that an event of default has occurred
thereunder, and, to the Seller's actual knowledge, there exists
no condition that, but for the passage of time or the giving of
notice, or both, would result in an event of default under the
terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease 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 or other agreement, 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;
(f) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee
C-9
<PAGE>
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 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; and
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the
related Mortgage Loan, as commercially unreasonable by the
Seller; 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 subtenant of the lessee, or in any manner, which would
adversely affect the security provided by the related Mortgage.
(j) Such Ground Lease requires the lessor to enter into a new lease
in the event of a termination of the Ground Lease by reason of a
default by the Mortgagor under the Ground Lease, including,
rejection of the ground lease in a bankruptcy proceeding.
(xxxviii) Deed of Trust. 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.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment of
a release price, the related Mortgage Note or Mortgage does not require the
holder thereof to release all or any portion of the Mortgaged Property from the
lien of the related Mortgage except upon payment in full of all amounts due
under such Mortgage Loan.
C-10
<PAGE>
(xl) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage without the prior written consent of the
holder thereof or the satisfaction of debt service coverage or similar
conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor
is not a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Due Organization of Mortgagor. As of the date of origination of
such Mortgage, each related Mortgagor which is not a natural person was duly
organized and validly existing under the laws of the state of its jurisdiction.
(xliii) Defeasance Provisions. Any Mortgage Loan which contains a
provision for any defeasance of mortgage collateral either (A) requires the
consent of the holder of the Mortgage Loan to any defeasance, or (B) permits
defeasance (i) no earlier than two years after the Closing Date (as defined in
the Pooling and Servicing Agreement, dated as of September 1, 1997), (ii) only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii) only to facilitate the
disposition of mortgage real property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
(xliv) With respect to GACC Loan #0089 (Circuit City HQ),
1. The rental payments under the Lease are equal to or greater than
the payments due under the loan documents, and are payable
without notice or demand, and without setoff, counterclaim
recoupment, abatement, reduction or defense.
2. The obligations of Tenant under the Lease, including, but not
limited to, the obligation of Tenant to pay fixed and additional
rent, are not affected by reason of any damage to or destruction
of any portion of the leased property; any taking of the leased
property or any part thereof by condemnation or otherwise; or any
prohibition, limitation, interruption, cessation, restriction,
prevention or interference of Tenant's use, occupancy or
enjoyment of the leased property.
3. Landlord does not have any monetary obligations under the Lease,
and every monetary obligation associated with managing, owning,
developing and operating the leased property, including, but not
limited to, the costs associated with utilities, taxes,
insurance, maintenance and repairs is an obligation on Tenant.
4. Landlord does not have any nonmonetary obligations under the
Lease, except for the delivery of possession of the leased
property.
C-11
<PAGE>
5. Landlord has not made any representation or warranty under the
Lease that would impose any monetary obligation upon Landlord or
result in the termination of the Lease.
6. Tenant cannot terminate the Lease for any reason, prior to the
payment in full of: (a) the principal balance of the loan; (b)
all accrued and unpaid interest on the Loan; and (c) any other
sums due and payable under the loan, as of termination date,
which date is a rent payment date, except for a default by
Landlord under the Lease.
7. In the event Tenant assigns or sublets the leased property,
Tenant remains primarily obligated under the Lease.
8. Tenant has agreed to indemnify Landlord from any claims of any
nature (a) to which Landlord is subject because of Landlord's
estate in the leased property, or (b) arising from (i) injury to
or death of any person or damage to or loss of property on the
leased property or connected with the use, condition or occupancy
of the leased property, (ii) Tenant's violation of the Lease, or
(iii) any act or omission of Tenant.
9. Tenant has agreed to indemnify Landlord from any claims of any
nature arising as a result of any hazardous material affecting
the leased property.
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 and/or the Trustee 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.
C-12
<PAGE>
EXHIBIT C-1
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
(xxxvii)(j) The following Mortgage Loans:
(1) GACC Loan #TA0738/Control #18
(2) Paul Revere Loan #999914/Control #52
(3) Paul Revere Loan #000002/Control #112
(xliv) BCMC Loan #1833, the major tenant, K-Mart self insures against
all risks.
(xlv) BCMC Loan #2048 and Loan #1380 have mechanics and/or
materialmen's liens which have been either bonded over or have title insurance.
C-13
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of German American Capital Corporation ("GACC")
I, _________________, a _________________ of GACC (the "Seller"),
hereby certify as follows:
The Seller is a corporation duly organized and validly existing under
the laws of the State of Maryland.
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 September 25, 1997 (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.
D-1-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of _______ __, 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 _______ __, 1997.
By:
-------------------------------
Name:
Title:
D-1-2
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of German American Capital Corporation
In connection with the execution and delivery by German American
Capital Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
September 25, 1997 (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 ___st day of _______, 1997.
GERMAN AMERICAN CAPITAL CORPORATION
By:
-------------------------------
Name:
Title:
D-2-1
<PAGE>
September 30, 1997 Page 1
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
September 30, 1997
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
[Rating Agencies]
[Trustee]
[Fiscal Agent]
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C1
Ladies and Gentlemen:
I am General Counsel to German American Capital Corporation (the
"Seller"). In that capacity, I am familiar with the issuance of certain
Mortgage Pass-Through Certificates, Series 1997-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 September 1, 1997 (the "Pooling
and Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc. as
depositor (the "Depositor"), GMAC Commercial Mortgage Corporation ("GMACCM") as
master servicer and special servicer, LaSalle National Bank as trustee (the
"Trustee") and ABN AMRO Bank, N.V. as fiscal agent..
Certain of the Mortgage Loans were purchased by the Depositor from
ContiTrade Services, L.L.C., pursuant to, and for the consideration described
in, the Mortgage Loan Purchase Agreement, dated as of September 25, 1997 (the
"Conti Mortgage Loan Purchase Agreement"), between Conti and the Depositor.
Certain of the Mortgage Loans were purchased by the Depositor from the GMACCM,
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of September 25, 1997 (the
D-3A-1
<PAGE>
September 30, 1997 Page 2
"GMACCM Mortgage Loan Purchase Agreement"), between the Depositor and GMACCM.
Certain of the Mortgage Loans were purchased by the Depositor from German
American Capital Corporation ("GACC"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of September 25,
1997 (the "GACC Mortgage Loan Purchase Agreement"), between GACC and the
Depositor. The GACC Mortgage Loan Purchase Agreement is referred to herein
together as the "Agreement". Capitalized terms not defined herein have the
meanings set forth in the Pooling and Servicing Agreement and the Agreement.
This opinion is rendered pursuant to Section 8(e) of the GACC Mortgage Loan
Purchase Agreement.
The Depositor has sold the Class X, Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E and Class F Certificates (collectively, the
"Publicly Offered Certificates") to the underwriters pursuant to the
Underwriting Agreement, dated as of September 25, 1997 (the "Underwriting
Agreement"), among the Depositor, GMACCM, and the underwriters named therein
and sold the Class G, Class H, Class J, Class K, Class R-I, Class R-II and
Class R-III Certificates (collectively, the "Privately Offered Certificates")
to Deutsche Morgan Grenfell Inc. and Lehman Brothers Inc. as initial purchasers
pursuant to the Certificate Purchase Agreement, dated as of September 25, 1997
(the "Certificate Purchase Agreement"), among the Depositor, GMACCM and initial
purchasers.
In connection with rendering this opinion letter, I have examined or
have caused persons under my supervision to examine the Agreement 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 Agreement. As
to matters of fact, I have examined and relied upon representations of parties
contained in the Agreement and, where I have deemed appropriate,
representations and certifications of officers of the Depositor, the Seller,
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 Seller and the conformity to the
originals of all documents submitted to me as copies. I have assumed that all
parties, except for the Seller, 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 Agreement.
In rendering this opinion letter, I do not express any opinion
concerning any law other than the law of the State of New York, 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
D-3A-2
<PAGE>
September 30, 1997 Page 3
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 State of New York 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 Seller is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland
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 Agreement.
2. The Agreement has been duly and validly authorized, executed and
delivered by the Seller and, upon due authorization, execution and
delivery by the other parties thereto, will constitute the valid,
legal and binding agreements of the Seller enforceable against the
Seller 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 Agreement which purport to provide indemnification
with respect to securities law violations.
3. No consent, approval, authorization or order or federal court or
governmental agency or body is required for the consummation by the
Seller of the transactions contemplated by the terms of the Agreement,
except for those consents, approvals, authorizations or orders which
previously have been obtained.
4. Neither the consummation of any of the transactions contemplated by,
nor the fulfillment by the Seller of any other of the terms of, the
Agreement, will result in a material breach of any term or provision
of the charter or bylaws of the Seller or any state or federal statute
or regulation or conflict with, result in a material breach, violation
or acceleration of or constitute a material default under the terms of
any indenture or other material agreement or instrument to which the
Seller is a party or by which it is bound or any order or regulation
of any state or federal court, regulatory body, administrative agency
or governmental body having jurisdiction over the Seller.
D-3A-3
<PAGE>
September 30, 1997 Page 1
This opinion letter is rendered for the sole benefit of each
addressee hereof, and no other person or entity 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,
D-3B-1
<PAGE>
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
September 30, 1997
[GMAC Commercial Mortgage Corporation]
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C1
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as special
counsel to German American Capital Corporation ("GACC"), pursuant to Section
8(e) of the Mortgage Loan Purchase Agreement, dated September 25, 1997 (the
"GACC Mortgage Loan Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. (the "Purchaser") and GACC as the Seller, (in such capacity
the "Seller"), relating to the sale by the Seller of certain mortgage loans
(the "Mortgage Loans"), and pursuant to Section 6.11 of the Underwriting
Agreement, dated as of September 25, 1997, between the Purchaser and Deutsche
Morgan Grenfell Inc. and Lehman Brothers Inc., relating to that certain Pooling
and Servicing Agreement, dated as of September 1, 1997, among GMAC Commercial
Mortgage Corporation ("GMACCM") as special servicer and master servicer (in
such respective capacities, the "Special Servicer" and the "Master Servicer"),
Purchaser, LaSalle National Bank, as trustee, and ABN AMRO Bank, N.V., as
fiscal agent, (the "Pooling and Servicing Agreement" and together with the GACC
Mortgage Loan Purchase Agreement, the "Agreements"). Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Agreements.
In rendering this opinion, we have examined and relied upon executed
copies of the Agreements and originals or copies, certified or otherwise
identified to our satisfaction, of such certificates and other documents as we
have deemed appropriate for the purposes of rendering this opinion. We have
examined and relied upon, among other things, the documents and opinions
delivered to you at the closing being held today relating to the Certificates,
as well as (a) the Prospectus and the Memorandum, (b) an executed copy of the
D-3B-1
<PAGE>
September 30, 1997 Page 2
GACC Mortgage Loan Purchase Agreement, and (c) an executed copy of the Pooling
and Servicing Agreement.
We are members of the bar of the State of New York and do not purport
to be experts on or to express any opinion herein concerning any laws other
than the laws of the State of New York and the federal laws of the United
States of America. We express no opinion herein as to the laws of any other
jurisdiction.
We have not ourselves checked the accuracy or completeness of, or
otherwise independently verified, the information furnished with respect to the
Prospectus or the Memorandum. In addition, as you are aware, we did not examine
or review the Mortgage Files. However, in the course of the preparation by the
Purchaser of the Prospectus and the Memorandum, we have participated in
conferences with certain officers of the Seller, the Purchaser, counsel to the
Purchaser and your representatives, during which the contents of the Prospectus
and the Memorandum and related matters were discussed. On the basis of the
discussions referred to above, although we are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Prospectus and the Memorandum, and without
independent check or verification except as stated, no facts have come to our
attention that have caused us to believe that either the Prospectus or the
Memorandum (other than financial and statistical data included or not included
therein or incorporated by reference therein, as to which we express no
opinion), as of its issue date, contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Whenever our opinion with respect to the existence or absence of facts
is indicated to be based on our knowledge or awareness, we are referring to the
actual knowledge of the [Insert Name of Counsel to Seller] attorneys who have
represented you in connection with the transactions contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation to determine the existence or absence of such facts
and no inference as to our knowledge concerning such facts should be drawn from
the fact that such representation has been undertaken by us.
This letter is limited to the specific issues addressed herein and the
opinion rendered above is limited in all respects to laws and facts existing on
the date hereof. By rendering this opinion, we do not undertake to advise you
with respect to any other matter or of any change in such laws or facts or in
the interpretations of such laws which may occur after the date hereof.
We are furnishing this opinion to you solely for your benefit. This
opinion is not to be used, circulated, quoted or otherwise referred to for any
other purpose, except that the
D-3B-2
<PAGE>
September 30, 1997 Page 3
persons listed on Exhibit A hereto may rely upon this opinion in connection
with their rating of the Certificates to the same extent as if this opinion had
been addressed to them.
Very truly yours,
D-3B-3
<PAGE>
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of September 25, 1997, 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., Fitch
Investors Service, L.P. 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
September 1, 1997 (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 LaSalle National Bank as trustee (in such capacity,
the "Trustee") and ABN AMRO Bank N.V. as fiscal agent. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Pooling and
Servicing Agreement.
The Purchaser intends to sell the Registered Certificates to Deutsche
Morgan Grenfell, Lehman Brothers Inc., Morgan Stanley & Co. Incorporated,
Residential Funding Securities Corp. and Llama Company, L.P. (together, the
"Underwriters") pursuant to an underwriting agreement dated the date hereof
(the "Underwriting Agreement"). The Purchaser intends to sell the remaining
Certificates (the "Non-Registered Certificates") to Deutsche Morgan Grenfell,
Inc. and Lehman Brothers Inc. (the "Initial Purchasers"), pursuant to 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
<PAGE>
Loans shall take place on September 30, 1997 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). As of the close
of business on September 1, 1997 (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 $1,696,984,278.05, subject to a variance of
plus or minus 5%. 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 agrees that, at least five (5) Business Days
before the Closing Date, it shall have delivered to and deposited with the
Trustee, the Mortgage File (as described on Exhibit B hereto) for each Mortgage
Loan so assigned. It is further acknowledged and agreed by the Seller that the
Purchaser intends to cause the Trustee to perform a limited review of such
Mortgage Files to enable the Trustee to confirm to the Purchaser on or before
the Closing Date that the Mortgage Note referred to in clause (i) of Exhibit B
has been delivered by the Seller with respect to each such Mortgage File. In
the event Seller fails to so deliver each such Mortgage File to the Trustee,
the Purchaser and its successors and assigns shall be entitled to pursue any
rights or remedies in respect of such failure as may be available under
applicable law. 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
-2-
<PAGE>
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 Trustee, 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 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 Trustee 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 Trustee
shall be authorized to release to the Purchaser or its designee all of the
Mortgage Files in the Trustee'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
-3-
<PAGE>
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.
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 organized,
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.
-4-
<PAGE>
(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, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) 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.
(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 Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller the outcome of which, in the Seller's
good faith and reasonable judgment, could reasonably be expected to
prohibit the Seller from entering into this Agreement or materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers, 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
-5-
<PAGE>
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-7 through A-12, 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
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.
(x) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any
bulk sale laws), for the execution, delivery and performance of or
compliance by the Seller with this Agreement, or the consummation by
the Seller of any transaction contemplated hereby, other than (1) the
filing or recording of financing statements, instruments of assignment
and other similar documents necessary in connection with Seller's sale
of the Mortgage Loans to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (3) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Seller under this Agreement.
(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 C 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
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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.
(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, the Initial Purchasers and their
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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),
provided, however, that in lieu of effecting any such repurchase, the Seller
will be permitted to deliver a Qualifying Substitute Mortgage Loan and to pay a
cash amount equal to the applicable Substitution Shortfall Amount, subject to
the terms and conditions of the Pooling and Servicing Agreement.
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.
(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 or substitution for 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.
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(d) Except as provided in Section 2(b), 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 or
its successors and assigns 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 Mayer, Brown & Platt, 1675 Broadway, 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 Cutoff Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (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
Trustee, 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;
(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 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
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(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) Written opinions of counsel for the Seller, substantially in the
form of Exhibits D-3A and D-3B 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) 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.
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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. This indemnity agreement will be in addition to any
liability which the Seller may otherwise have.
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 September
15, 1997, as supplemented by the prospectus supplement dated September 25, 1997
(the "Prospectus Supplement"), relating to the Registered Certificates;
"Memorandum" shall mean the private placement memorandum dated September 25,
1997, relating to the Non-Registered 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
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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").
(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 relative fault of the indemnified and indemnifying
parties in connection with the statements or
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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:
Structured Finance Manager, facsimile no. (215) 328-1775, with a copy to the
General Counsel, GMAC Commercial Mortgage Corporation, 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) 207-2935, or to such other address or facsimile
number as the Seller may designate in writing to the Purchaser.
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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 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 WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL
APPLY TO THIS AGREEMENT.
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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 under
Section 12 hereof without the prior consent of that person.
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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: /s/ Scott M. Mannes
--------------------------------
Name: Scott M. Mannes
Title: Authorized Signatory
By: /s/ Susan C. Valenti
--------------------------------
Name: Susan C. Valenti
Title: Authorized Signatory
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Elisa George
--------------------------------
Name: Elisa George
Title: Senior Vice President
<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;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity, (B) with respect
to each ARD Loan, the Anticipated Repayment Date and (C)
Stated Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of an 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) whether such Mortgage Loan is an ARD Loan or a Defeasance
Loan; and
(xi) the Master Servicing Fee Rate.
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.
[The Mortgage Loan Schedule consists of those Loans marked "Conti" on
Schedule I to the Pooling and Services Agreement]
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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 LaSalle
National Bank, as trustee for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 1997-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;
B-1
<PAGE>
(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 together with (A) if
applicable, the original or copies of any intervening
assignments of such guaranty showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent assignee thereof prior to the Trustee, if any, and (B)
an original assignment of such guaranty executed by the most
recent assignee thereof prior to the Trustee or, if none, by
the originator;
(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 Trustee and (B) if any such security interest
is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the 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
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<PAGE>
(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 or the Trustee, such term shall not be
deemed to include such documents and instruments required to be included
therein unless they are actually so received. The original assignments referred
to in clauses (iii), (v), (vii) and (x)(B), may be in the form of one or more
instruments in recordable form in any applicable filing offices.
B-3
<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) Ownership of Mortgage Loans. 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 directly service such
Mortgage Loan). Such transfer validly assigns ownership of such Mortgage Loan
to the Purchaser free and clear of any pledge, lien, encumbrance or security
interest.
(ii) Authority to Transfer Mortgage Loans. 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) Mortgage Loan Schedule. 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) Payment Record. Such Mortgage Loan was not as of the Cut-off
Date, and has not been during the twelve-month period prior thereto, 30 days or
more delinquent in respect of any debt service payment required thereunder,
without giving effect to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes 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"). 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 Mortgaged Property to generate net operating income
sufficient to service the Mortgage Loan. If the Mortgaged Property is operated
as a nursing facility, a hospitality property or a multifamily property, the
Mortgage, together with any separate security agreement, similar agreement and
UCC financing statement, if any, establishes and creates a first priority,
perfected security interest, to the extent such security interest can be
perfected by the recordation of a Mortgage or the filing of a UCC financing
statement, in all personal property owned by the
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<PAGE>
Mortgagor that is used in, and is reasonably necessary to, the operation of the
related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by
an ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its
successors and assigns, as to the first priority lien of the Mortgage in the
original principal amount of the 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 the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the
coverage under such Title Policy. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee, such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) will inure to
the benefit of the Trustee without the consent of or notice to the insurer. To
the Seller's actual knowledge, the insurer that issued such Title Policy is
qualified to do business in the state in which the related Mortgaged Property
is located,
(vii) No Waivers by Seller of Material Defaults. The Seller has not
waived any material default, breach, violation or event of acceleration
existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid
offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of
the commencement of a proceeding for the condemnation of all or any material
portion of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage 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,
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<PAGE>
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) Insurance. To the Seller's actual knowledge, all improvements
upon the related Mortgaged Property 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 replacement cost of the improvements located on such
Mortgaged Property and 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 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 such
Mortgaged Property. In addition, the Mortgage requires the Mortgagor to
maintain in respect of the Mortgaged Property comprehensive general liability
insurance in amounts generally required by the Seller, and at least six months
rental or business interruption insurance, and all such insurance required by
the Mortgage to be maintained is in full force and effect. Each such insurance
policy requires prior notice to the holder of the Mortgage of termi nation or
cancellation, and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured.
(xiv) Environmental Condition. Subject to the exception set forth on
page C-10 hereof, 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 conditions
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. The related Mortgage or loan documents
C-3
<PAGE>
in the related Mortgage File requires the Mortgagor to comply with all
applicable federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will not
be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and
the Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage
File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties
would be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except in the case
of six Mortgage Loans as to which the interest of the related Mortgagor in the
related Mortgaged Property is in whole or in part a leasehold estate, the
interest of the related Mortgagor in the related Mortgaged Property consists of
a fee simple estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. 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 Trustee, 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) Escrows. All escrow deposits relating to such Mortgage Loan that
are, as of the Closing Date, required to be deposited with the mortgagee or its
agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. 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 Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, 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 lay outside
the boundaries and building restriction lines of such property to any
C-4
<PAGE>
material extent (unless affirmatively covered by the title insurance referred
to in paragraph (vi) above), and no improvements on adjoining properties
encroached upon such Mortgaged Property to any material extent. To the Seller's
knowledge, based upon opinions of counsel and/or other due diligence
customarily performed by the Seller, the improvements located on or forming
part of such Mortgaged Property comply in all material respects with applicable
zoning laws and ordinances (except to the extent that they may constitute legal
non-conforming uses).
(xxiv) Originator Authorized. 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) No Material Default. (A) There exists, to the Seller's
knowledge, no material default, breach or event of acceleration under the
related Mortgage or Mortgage Note, and (B) 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 or addressed by any other representation and
warranty made by the Seller herein.
(xxvi) Adjustable Mortgage Rate. If the Mortgage Loan has an
adjustable Mortgage Rate, all of the terms of the related Mortgage Note
pertaining to interest rate adjustments, payment adjustments and adjustments of
the principal balance are enforceable and such adjustments will not affect the
priority of the lien of the related Mortgage, 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) No Equity Participation or Contingent Interest. The Mortgage
Loan contains no equity participation by the lender, and does not provide for
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. 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) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor or operator of the related Mortgaged Property 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 if a related Mortgaged Property is improved by a skilled
nursing, congregate care or assisted living facility, the most recent
inspection or survey by governmental authorities having jurisdiction in
connection with such licenses, permits and authorizations did
C-5
<PAGE>
not cite such Mortgaged Property for material violations (which shall include
only "Level A" (or equivalent) violations in the case of skilled nursing
facilities) that had not been cured or as to which a plan of correction had not
been submitted to and accepted by such governmental authorities.
(xxx) Servicing. 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
8.1 of the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. 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) Insurance and Condemnation Proceeds. The related Mortgage
provides 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 holder of the Mortgage.
(xxxiii) LTV. 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) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it 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) [Intentionally Omitted.]
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<PAGE>
(xxxvi) Litigation. To the Seller's actual knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the related Mortgagor 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.
(xxxvii) Leasehold Estate. Subject to the exceptions set forth on
pages C-11 and C-12 hereto, each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related 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 (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest") or if the Mortgage Loan is secured
in whole or in part by a Ground Lease and a 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 (or the related estoppel letter or lender protection
agreement between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected
in written instruments that are a part of the related Mortgage
File;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than 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;
(d) Such Ground Lease is in full force and effect, and the Seller has
received no notice that an event of default has occurred
thereunder, and, to the Seller's actual knowledge, there exists
no condition that, but for the passage of time or the giving of
notice, or both, would result in an event of default under the
terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the mortgagee, provided that the
mortgagee has provided the lessor
C-7
<PAGE>
with notice of its lien in accordance with the provisions of such
Ground Lease, and such Ground Lease, or an estoppel letter or
other agreement, 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;
(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 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, 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; and
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the
related Mortgage Loan, as commercially unreasonable by the
Seller; 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 subtenant of the lessee, or in any manner, which would
adversely affect the security provided by the related Mortgage.
(j) Such Ground Lease requires the lessor to enter into a new lease
in the event of a termination of the Ground Lease by reason of a
default by the Mortgagor under the Ground Lease, including,
rejection of the ground lease in a bankruptcy proceeding.
(xxxviii) Deed of Trust. 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.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such
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<PAGE>
portion was not considered material for purposes of underwriting the Mortgage
Loan or (b) release is conditioned upon the satisfaction of certain
underwriting and legal requirements and the payment of a release price, the
related Mortgage Note or Mortgage does not require the holder thereof to
release all or any portion of the Mortgaged Property from the lien of the
related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage without the prior written consent of the
holder thereof or the satisfaction of debt service coverage or similar
conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor
is not a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Due Organization of Mortgagors. As of the date of origination
of each Mortgage, each related Mortgagor which is not a natural person was duly
organized and validly existing under the laws of the state of its jurisdiction.
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 and/or the Trustee 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.
C-9
<PAGE>
SCHEDULE OF EXCEPTION
TO REPRESENTATION (XIV)
(xiv) Environmental Condition. 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 adverse environmental conditions or
circumstances 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 ("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. The related Mortgage or loan documents in the
related Mortgage file requires the Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations.
Exception for the loans in the Small Loans Program, one of the following was
performed: (i) a complete Phase I environmental site assessment; (ii) a
modified site assessment; (iii) an environmental screening; (iv) a transaction
screening; (v) a database review; (iv) an update of a prior environmental
investigation.
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<PAGE>
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (XXXVII)
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple estate in real estate or, if the related
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 (a "Ground Lease"), by
the related Mortgagor's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest") or if the Mortgage
Loan is secured in whole or in part by a Ground Lease and a Fee Interest:
(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;
1. C-2 Central Valley Lease is freely assignable to and by any
leasehold mortgagee. Any subsequent assignment requires the
consent of the lessor.
2. C-24 Sunset Mobile Home Park Lease is freely assignable to
and by any leasehold mortgagee. Any subsequent assignment
requires the consent of the lessor.
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the
related Mortgage Loan, as commercially unreasonable by the
Seller; 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
subtenant of the lessee, or in any manner, which would adversely
affect the security provided by the related Mortgage.
1. C-2 Sunset Mobile Home Park Subletting not permitted without
the consent of the landlord. No express covenant as to quiet
enjoyment.
2. C-39 Yorba Linda Station Plaza No express covenant as to
quiet enjoyment.
3. C-51 Glad Business No express covenant regarding quiet
enjoyment as to subtenants.
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<PAGE>
4. C-90 Store and Lock No express covenant as to quiet
enjoyment.
5. C-1 Central Valley No express covenant regarding quiet
enjoyment as to subtenants.
C-12
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of ContiTrade Services L.L.C. ("Conti")
I, _________________, a _________________ of Conti (the "Seller"),
hereby certify as follows:
The Seller is a limited liability company 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 Formation and Limited Liability Company Agreement of the Seller,
which Certificate of Formation and Limited Liability Company Agreement 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 September 25, 1997
(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.
D-1-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of _______ __, 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 _______ __, 1997.
By:
-------------------------------
Name:
Title:
D-1-2
<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 September 25,
1997 (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 ___st day of _______, 1997.
CONTITRADE SERVICES L.L.C.
By:
-------------------------------
Name:
Title:
D-2-1
<PAGE>
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
September 30, 1997
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
[Rating Agencies]
[Trustee]
[Fiscal Agent]
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C1
Ladies and Gentlemen:
I am Counsel to ContiTrade Services L.L.C. (the "Seller"). In that
capacity, I am familiar with the issuance of certain Mortgage Pass-Through
Certificates, Series 1997-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 September 1, 1997 (the "Pooling and Servicing
Agreement"), among GMAC Commercial Mortgage Securities, Inc. as depositor (the
"Depositor"), GMAC Commercial Mortgage Corporation ("GMACCM") as master
servicer and special servicer, LaSalle National Bank as trustee (the "Trustee")
and ABN AMRO Bank, N.V. as fiscal agent.
Certain of the Mortgage Loans were purchased by the Depositor from
ContiTrade Services L.L.C., pursuant to, and for the consideration described
in, the Mortgage Loan Purchase Agreement, dated as of September 25, 1997 (the
"Conti Mortgage Loan Purchase Agreement"), between Conti and the Depositor.
Certain of the Mortgage Loans were purchased by the Depositor from the GMACCM,
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of September 25, 1997 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Depositor and GMACCM. Certain of the Mortgage Loans
were purchased by the Depositor from German American Capital Corporation
("GACC"), pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of September 25, 1997 (the "GACC Mortgage
Loan Purchase Agreement"), between GACC and the Depositor. Certain of the
obligations of the Seller under the Conti Mortgage Loan Purchase Agreement are
guaranteed by ContiFinancial Corporation (the "Guarantor") pursuant to the
Guaranty Agreement, dated September 25, 1997, in favor of the Depositor and
certain other parties
D-3A-1
<PAGE>
(the "Guaranty Agreement"). The Conti Mortgage Loan Purchase Agreement and the
Guaranty Agreement are referred to herein together as the "Agreements".
Capitalized terms not defined herein have the meanings set forth in the Pooling
and Servicing Agreement and the Agreements. This opinion is rendered pursuant
to Section 8(e) of the Conti Mortgage Loan Purchase Agreement.
The Depositor has sold the Class X, Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E and Class F Certificates (collectively, the
"Publicly Offered Certificates") to the underwriters pursuant to the
Underwriting Agreement, dated as of September 25, 1997 (the "Underwriting
Agreement"), among the Depositor, GMACCM, and the representatives named
therein, and sold the Class G, Class H, Class J, Class K, Class R-I, Class R-II
and Class R-III Certificates (collectively, the "Privately Offered
Certificates") to each of Deutsche Morgan Grenfell Inc. and Lehman Brothers
Inc. as initial purchasers pursuant to the Certificate Purchase Agreement,
dated as of September 25, 1997 (the "Certificate Purchase Agreement"), among
the Depositor, GMACCM and the initial purchasers.
In connection with rendering this opinion letter, I have examined or
have caused persons under my supervision to examine 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 Depositor, the Seller,
the Guarantor, 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 Seller and the
Guarantor and the conformity to the originals of all documents submitted to me
as copies. I have assumed that all parties, except for the Seller and the
Guarantor, 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 State of New York, the Limited
Liability Company Act 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 State of New York 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:
D-3A-2
<PAGE>
1. Each of the Seller and the Guarantor is duly incorporated and is
validly existing as a limited liability company and corporation,
respectively, 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. Each of the Agreements has been duly and validly authorized,
executed and delivered by each of the Seller and the Guarantor and,
upon due authorization, execution and delivery by the other parties
thereto, will constitute the valid, legal and binding agreements of
the Seller and the Guarantor, as applicable, enforceable against the
Seller and the Guarantor, as applicable, 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.
3. No consent, approval, authorization or order or federal court or
governmental agency or body is required for the consummation by the
Seller and the Guarantor of the transactions contemplated by the
terms of the Agreements, except for those consents, approvals,
authorizations or orders which previously have been obtained.
4. Neither the consummation of any of the transactions contemplated by,
nor the fulfillment by the Seller or the Guarantor of any other of
the terms of, the Agreements, will result in a material breach of
any term or provision of the charter or bylaws of the Seller or
Guarantor or any state or federal statute or regulation or conflict
with, result in a material breach, violation or acceleration of or
constitute a material default under the terms of any indenture or
other material agreement or instrument to which the Seller and
Guarantor, as applicable, is a party or by which it is bound or any
order or regulation of any state or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Seller or Guarantor.
This opinion letter is rendered for the sole benefit of each
addressee hereof, and no other person or entity 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,
D-3A-3
<PAGE>
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
September 30, 1997
[GMAC Commercial Mortgage Corporation]
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C1
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as special
counsel to ContiTrade Services L.L.C. ("Conti"), pursuant to Section 8(e) of
the Mortgage Loan Purchase Agreement, dated September 25, 1997 (the "Conti
Mortgage Loan Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. (the "Purchaser") and Conti as the Seller, (in such capacity
the "Seller"), relating to the sale by the Seller of certain mortgage loans
(the "Mortgage Loans"), and pursuant to Section 6.11 of the Underwriting
Agreement, dated as of September 25, 1997, between the Purchaser, Deutsche
Morgan Grenfell and Lehman Brothers Inc., relating to that certain Pooling and
Servicing Agreement, dated as of September 1, 1997, among GMAC Commercial
Mortgage Corporation ("GMACCM") as special servicer and master servicer (in
such respective capacities, the "Special Servicer" and the "Master Servicer"),
Purchaser, LaSalle National Bank, as trustee, and ABN AMRO Bank, N.V., as
fiscal agent, (the "Pooling and Servicing Agreement" and together with the
Conti Mortgage Loan Purchase Agreement, the "Agreements"). Capitalized terms
not otherwise defined herein have the meanings assigned to them in the
Agreements.
In rendering this opinion, we have examined and relied upon executed
copies of the Agreements and originals or copies, certified or otherwise
identified to our satisfaction, of such certificates and other documents as we
have deemed appropriate for the purposes of rendering this opinion. We have
examined and relied upon, among other things, the documents and opinions
delivered to you at the closing being held today relating to the Certificates,
as well as (a) the Prospectus and the Memorandum, (b) an executed copy of the
Conti Mortgage Loan Purchase Agreement, and (c) an executed copy of the Pooling
and Servicing Agreement.
D-3B-1
<PAGE>
We are members of the bar of the State of New York and do not
purport to be experts on or to express any opinion herein concerning any laws
other than the laws of the State of New York and the federal laws of the United
States of America. We express no opinion herein as to the laws of any other
jurisdiction.
We have not ourselves checked the accuracy or completeness of, or
otherwise independently verified, the information furnished with respect to the
Prospectus or the Memorandum. In addition, as you are aware, we did not examine
or review the Mortgage Files. However, in the course of the preparation by the
Purchaser of the Prospectus and the Memorandum, we have participated in
conferences with certain officers of the Seller, the Purchaser, counsel to the
Purchaser and your representatives, during which the contents of the Prospectus
and the Memorandum and related matters were discussed. On the basis of the
discussions referred to above, although we are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Prospectus and the Memorandum, and without
independent check or verification except as stated, no facts have come to our
attention that have caused us to believe that either the Prospectus or the
Memorandum (other than financial and statistical data included or not included
therein or incorporated by reference therein, as to which we express no
opinion), as of its issue date, contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Whenever our opinion with respect to the existence or absence of
facts is indicated to be based on our knowledge or awareness, we are referring
to the actual knowledge of the [Insert Name of Counsel to Seller] attorneys who
have represented you in connection with the transactions contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation to determine the existence or absence of such facts
and no inference as to our knowledge concerning such facts should be drawn from
the fact that such representation has been undertaken by us.
This letter is limited to the specific issues addressed herein and
the opinion rendered above is limited in all respects to laws and facts
existing on the date hereof. By rendering this opinion, we do not undertake to
advise you with respect to any other matter or of any change in such laws or
facts or in the interpretations of such laws which may occur after the date
hereof.
We are furnishing this opinion to you solely for your benefit. This
opinion is not to be used, circulated, quoted or otherwise referred to for any
other purpose, except that the persons listed on Exhibit A hereto may rely upon
this opinion in connection with their rating of the Certificates to the same
extent as if this opinion had been addressed to them.
Very truly yours,
D-3B-2
<PAGE>
EXHIBIT E
FORM OF GUARANTY AGREEMENT
- -------------------------------------------------------------------------------
CONTIFINANCIAL CORPORATION
Guarantor
in favor of
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
AND CERTAIN OTHERS
-----------------------
GUARANTY AGREEMENT
Dated September 25, 1997
-----------------------
- -------------------------------------------------------------------------------
E-1
<PAGE>
Guaranty Agreement (this "Agreement"), dated September 25, 1997, from
ContiFinancial Corporation, a Delaware corporation (the "Guarantor") in favor
of GMAC Commercial Mortgage Securities, Inc. ("GMAC-CMS"), and all additional
persons and entities entitled to indemnification under Section 9 of the
Mortgage Loan Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"), between GMAC-CMS as purchaser and ContiTrade Services L.L.C. as
seller (such additional persons and entities, the "Other Beneficiaries").
GMAC-CMS requires, as an inducement and a condition precedent to its
entering into the Purchase Agreement with ContiTrade Services L.L.C. (the
"Seller") that the Guarantor guarantees certain of the obligations of the
Seller under the Purchase Agreement. The Guarantor desires that GMAC-CMS enter
into the Purchase Agreement and is willing to enter into this Agreement in
order to induce GMAC-CMS to do so. The Seller is an indirectly wholly-owned
subsidiary of the Guarantor. Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to such terms in the
Purchase Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantor agrees
as follows:
ARTICLE I
GUARANTEED OBLIGATIONS
Section 1.1 Obligations Guaranteed. The Guarantor hereby guarantees to
GMAC-CMS and the Other Beneficiaries (a) the timely purchase or replacement of
any Mortgage Loans which the Seller is obligated to repurchase or replace
pursuant to Section 6 of the Purchase Agreement and fails to do so in
accordance therewith, (b) the due and punctual payment, observance and
performance of any and all of the obligations of the Seller, pursuant to
Section 9 of the Purchase Agreement, if the Seller fails to pay or perform as
required thereunder, and (c) the timely payment of costs, expenses (including,
without limitation, expenses of enforcement pursuant to Section 6(d) of the
Purchase Agreement), if the Seller fails to pay as required under the Purchase
Agreement (the "Obligations"), each Obligation as subject to any extensions or
waivers agreed to in writing by GMAC-CMS or, to the extent appropriate, any of
the Other Beneficiaries; provided that, notwithstanding anything herein to the
contrary, in no event shall the Guarantor guaranty or otherwise be responsible
for any Obligation to the extent (but only to the extent) that it has been
amended, rescinded, waived, modified or in any way altered, unless and until
such amendment, rescission, waiver or alteration has been consented to in
writing by the Guarantor after notice to the Guarantor by the Seller. It is
herein acknowledged that no Obligation under the Purchase Agreement may be
amended, rescinded, waived, modified or in any way altered except by writing
signed by GMAC-CMS and the Seller.
Section 1.2 Nature of the Guaranteed Obligations. (a) The Guarantor
further agrees that this Agreement constitutes an absolute, unconditional,
irrevocable, present and continuing guaranty of performance and payment and not
of collection. The Guarantor's obligations
E-2
<PAGE>
hereunder (the "Guaranty Obligations") are primary, direct, unconditional and
completely independent of the obligations of any other person or entity, and
are primary direct obligations of the Guarantor to GMAC-CMS and the Other
Beneficiaries.
(b) If any payment by the Seller to GMAC-CMS or any Other Beneficiary
with respect to any Obligation is rescinded or must be returned by GMAC-CMS or
such Other Beneficiary for any reason (including, without limitation, the entry
of any order under any present or future federal or state bankruptcy,
insolvency or similar laws) the obligations of the Guarantor hereunder shall be
reinstated with respect to such payment, subject to the proviso to Section 1.3.
(c) Neither GMAC-CMS nor the Other Beneficiaries shall have a duty to
advise the Guarantor of information known to it regarding any such conditions
or circumstances described in Section 1.2(b).
Section 1.3 Obligations of Guarantor Unconditional. The Guaranty
Obligations shall remain in full force and effect until both (a) satisfaction
or performance thereof in full, and (b) the obligations of the Seller under the
Purchase Agreement are paid, observed, performed and satisfied in full. The
Guarantor guarantees and agrees that the Obligations will be satisfied in
accordance with the terms thereof. The liability of the Guarantor under this
Agreement shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the Purchase
Agreement;
(b) the failure of GMAC-CMS or any Other Beneficiary (i) to assert any
claim or demand not expressly required under the terms of the Purchase
Agreement or to enforce any right or remedy against the Seller under the
Purchase Agreement, or (ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any of the Obligations;
(c) subject to the proviso to Section 1.1, any reduction, limitation,
impairment or termination of any of the obligations of the Seller under the
Purchase Agreement for any reason, including any claim of waiver, release,
surrender, alteration or compromise by reason of the invalidity,
illegality, non-genuineness, irregularity, compromise or unenforceability
of, or any other event or occurrence affecting, such obligations, except as
expressly set forth in the Purchase Agreement;
(d) subject to the proviso to Section 1.1, any amendment to,
rescission, waiver, or other modification of, or any consent to or
departure from, any of the terms of the Purchase Agreement; and
(e) any other circumstance which might otherwise constitute a defense
to or a discharge of the Seller of its obligations under the Purchase
Agreement based upon the bankruptcy or insolvency of the Seller;
E-3
<PAGE>
provided that, notwithstanding anything to the contrary contained herein, the
Guarantor shall not be required to make a payment hereunder pursuant to the
Guaranty Obligations to the extent that there exists a valid defense, set-off,
discharge, right of release or equitable right of limitation on liability under
the Purchase Agreement to which the Seller is rightfully entitled and that does
not arise out of the bankruptcy or insolvency of the Seller.
Section 1.4 Certain Waivers of the Guarantor. The Guarantor hereby
waives:
(a) promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations and this Agreement, except notices
to the Guarantor specifically provided in this Agreement, and (b) any
requirement that GMAC-CMS or any Other Beneficiary secure, perfect or
insure any security interest or exhaust any right or take any action
against the Guarantor, the Seller or any other person or entity (including,
without limitation, any other obligor or guarantor) or any collateral
securing the Obligations.
Section 1.5 Remedies and Waivers. No remedy herein conferred upon or
reserved to GMAC-CMS or any Other Beneficiary is intended to be exclusive of
any other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No
waiver of any of the provisions of this Agreement (a) shall be valid unless
evidenced by a writing executed by each party to be bound thereby, (b) shall be
deemed to or shall constitute a waiver of any other provision of this Agreement
or any provisions of the Purchase Agreement (whether or not similar), or (c)
shall constitute a continuing waiver unless otherwise expressly provided. No
delay on the part of GMAC-CMS or any Other Beneficiary in exercising any right
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any power or right preclude other or further exercise
thereof or the exercise of any other right or remedy. No notice to or demand on
the Guarantor in any case shall entitle it to any other or further notice or
demand in the same or similar circumstances except to the extent expressly
required by the Purchase Agreement.
Section 1.6 No Set-off by Guarantor. No set-off, abatement,
recoupment, counterclaim, reduction or diminution of a Guaranty Obligation, or
any defense of any kind or nature which the Guarantor has or may have with
respect to a Guaranty Obligation (other than the complete fulfillment,
performance or satisfaction of such Guaranty Obligation) shall be available
hereunder to the Guarantor against GMAC-CMS or any Other Beneficiary; provided,
however, that the Guarantor shall be entitled to, except to the extent it
arises out of the bankruptcy or insolvency of the Seller, any right of set-off,
abatement, recoupment, counterclaim, reduction or diminution of any Obligation
or any equitable defense of any kind or nature which the Seller has or may have
with respect to any Obligation.
Section 1.7 Binding Nature of Certain Adjudications. The Guarantor
shall be conclusively bound by the final non-appealable adjudication in any
action or proceeding, legal or otherwise, involving any controversy arising
under, in connection with, or in any way relating
E-4
<PAGE>
to, any of the Obligations, and by a final judgment, award or decree entered
therein, provided, in any case, that the Guarantor shall have had the right, or
shall have been given the opportunity, to participate in such action or
proceeding and shall have been given written notice of such action or
proceeding in time to exercise such right or avail itself of such opportunity.
Section 1.8 Costs. The Guarantor agrees to indemnify GMAC-CMS and each
of the Other Beneficiaries for, and shall pay, all costs, expenses and fees,
including all reasonable attorneys' fees and expenses, which may be incurred by
GMAC-CMS and each of the Other Beneficiaries in enforcing or attempting to
enforce a valid claim under this Agreement following any default on the part of
the Guarantor hereunder, whether the same shall be enforced by suit or
otherwise.
Section 1.9 Interest. If the Guarantor shall fail to make any payment
due hereunder when due in immediately available funds, the Guarantor shall pay
interest on the amount of such payment from and including the date due to the
date of payment at an annual rate equal to two percentage points above the
"Federal funds effective rate" as published on Reuters Screen 118, as such
"Federal funds effective rate" may change from time to time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
Section 2.1 Representations and Warranties of the Guarantor. The
Guarantor represents and warrants that:
(a) The Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Guarantor has
the full power and authority, corporate or otherwise, to guaranty the
Obligations and has the power, authority, franchises and licenses (i) to own
its properties and assets and to carry on and conduct its business and (ii) to
execute, enter into and deliver this Agreement and to perform all of its
obligations hereunder. The execution, delivery and performance of this
Agreement by the Guarantor have been duly authorized by all necessary
corporate, shareholder or other action, and this Agreement has been duly and
validly executed and delivered by the Guarantor and is legal, valid and binding
on and enforceable against the Guarantor in accordance with its terms except as
such enforceability may be subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general principles of
equity. Any requisite consents of third parties to the execution and delivery
of this Agreement and the performance of the obligations or transactions
contemplated hereby have been obtained.
(b) Neither the execution or delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor the compliance with
or performance of the terms and conditions of this Agreement by the Guarantor
is prevented by, limited by, conflicts with or will result in a breach or
violation of or a default under the terms, conditions or provisions of (i) its
certificate of incorporation or by-laws, (ii) any material mortgage, security
agreement, indenture, loan agreement or other agreement or instrument to which
the Guarantor is a party or by which
E-5
<PAGE>
it is bound or (iii) any provision of law, any order of any court or
administrative agency or any rule or regulation applicable to the Guarantor or
its business. As of the date hereof, the Guarantor is not in default under or
in violation of any of its material obligations under any material contract,
agreement or undertaking to which it is a party or by which it is bound.
(c) As of the date hereof, there is no action, proceeding or
investigation pending with regard to which the Guarantor has received service
of process or, to the Guarantor's knowledge, threatened against the Guarantor
before any court or administrative agency that, in the reasonable and good
faith judgment of the Guarantor, may (i) materially and adversely affect the
ability of the Guarantor to perform its obligations under this Agreement, (ii)
result in any material adverse change in the business, properties, assets or
financial condition of the Guarantor, or (iii) adversely affect the
enforceability of this Agreement.
(d) As of the date hereof, the Guarantor is the owner, directly or
indirectly, of 100% of the issued and outstanding membership interests of the
Seller.
ARTICLE III
MISCELLANEOUS
Section 3.1 Obligations Arise on Delivery of the Mortgage Loans. The
Guaranty Obligations hereunder shall arise absolutely and unconditionally
effective as of the Closing Date or, insofar as the Guaranty Obligations relate
to Section 9 of the Purchase Agreement, effective as of the date hereof.
Section 3.2 Survival. All warranties, representations, covenants and
obligations made by the Guarantor herein shall be deemed to have been relied
upon by GMAC-CMS and shall survive the delivery to GMAC-CMS of this Agreement
regardless of any investigation made by or on behalf of GMAC-CMS or any of the
Other Beneficiaries, until such time as the Obligations shall have been
discharged pursuant to the Purchase Agreement and the Guaranty Obligations
shall have been discharged pursuant to this Agreement.
Section 3.3 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Guarantor, GMAC-CMS and the Other
Beneficiaries and upon the respective successors, assigns, estates, heirs,
executors and administrators of the Guarantor, GMAC-CMS and the Other
Beneficiaries; provided that neither GMAC-CMS nor any of the Other
Beneficiaries may assign its rights hereunder except to an affiliate of the
assignor or as contemplated by the following sentence; and provided, further,
that the Guarantor may not assign or delegate any of its obligations hereunder
without the prior written consent of GMAC CMS and the Other Beneficiaries, or
their respective successors and assigns, which consent shall not be
unreasonably withheld. If GMAC-CMS assigns any of its rights under the Purchase
Agreement in respect of the Obligations in accordance with the Purchase
Agreement, then GMAC-CMS may also assign to the same party its rights hereunder
in respect of the corresponding Guaranty Obligations. In addition, any entity
into which the Guarantor, GMAC-CMS or any Other Beneficiary may be merged or
consolidated, or any entity resulting from any
E-6
<PAGE>
merger, conversion or consolidation to which the Guarantor, GMAC-CMS or any
Other Beneficiary is a party, or any person succeeding to all or substantially
all of the business of the Guarantor, GMAC-CMS or any Other Beneficiary, shall
be the successor hereunder to the Guarantor, GMAC-CMS or such Other
Beneficiary, as the case may be, hereunder.
Section 3.4 Notices. All notices, certificates, demands or other
communications hereunder shall be sufficiently given and shall be deemed given
when mailed by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows: (a) if to the Guarantor, addressed to
ContiFinancial Corporation at 277 Park Avenue, New York, New York 10172,
Attention: Chief Counsel, (b) if to GMAC-CMS, addressed to GMAC Commercial
Mortgage Securities, Inc. at 650 Dresher Road, P.O. Box 1015, Horsham,
Pennsylvania 19044 8015, Attention: Ms. Elisa George, (with a copy to the
General Counsel at 650 Dresher Road, P.O. Box 1015, Horsham, Pennsylvania
19044-8015).
The Guarantor and GMAC-CMS may, by notice given hereunder, designate
any further or different addresses to which subsequent notices, certificates,
demands or communications shall be sent.
Section 3.5 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties with respect to the subject matter hereof except as specifically set
forth or incorporated herein.
Section 3.6 Amendments, Changes and Modifications. This Agreement may
not be amended, changed, modified, altered, released or terminated without the
written consent of the Guarantor, GMAC-CMS and the Other Beneficiaries, or
their respective successors and assigns.
Section 3.7 Severability. The invalidity or unenforceability of any
one or more phrases, sentences, paragraphs or Sections in this Agreement shall
not affect the validity or enforceability of the remaining portions of this
Agreement or any part thereof.
Section 3.8 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE GUARANTOR HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 3.9 Counterparts. This Agreement may be executed in several
counterparts, each of which counterparts shall be an original and all of which
together shall constitute but one and the same instrument.
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<PAGE>
Section 3.10 Headings; Interpretation. Section and paragraph headings
are not to be considered part of this Agreement, are included solely for
convenience and are not intended to be full or accurate descriptions of the
contents thereof. Sections and paragraphs mentioned by number only are the
respective sections and paragraphs of this Agreement. The use of the terms
"herein", "hereunder", "hereof", and like terms shall be deemed to refer to
this entire Agreement and not merely to the particular provision in which the
term is contained, unless the context clearly indicates otherwise.
E-8
<PAGE>
S-1
IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be duly
executed and delivered,on the date first above written.
CONTIFINANCIAL CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
<PAGE>
- -------------------------------------------------------------------------------
CONTIFINANCIAL CORPORATION
Guarantor
in favor of
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
AND CERTAIN OTHERS
-----------------------
GUARANTY AGREEMENT
Dated September 25, 1997
-----------------------
- -------------------------------------------------------------------------------
<PAGE>
2
Guaranty Agreement (this "Agreement"), dated September 25, 1997, from
ContiFinancial Corporation, a Delaware corporation (the "Guarantor") in favor
of GMAC Commercial Mortgage Securities, Inc. ("GMAC-CMS"), and all additional
persons and entities entitled to indemnification under Section 9 of the
Mortgage Loan Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"), between GMAC-CMS as purchaser and ContiTrade Services L.L.C. as
seller (such additional persons and entities, the "Other Beneficiaries").
GMAC-CMS requires, as an inducement and a condition precedent to its
entering into the Purchase Agreement with ContiTrade Services L.L.C. (the
"Seller") that the Guarantor guarantees certain of the obligations of the
Seller under the Purchase Agreement. The Guarantor desires that GMAC-CMS enter
into the Purchase Agreement and is willing to enter into this Agreement in
order to induce GMAC-CMS to do so. The Seller is an indirectly wholly-owned
subsidiary of the Guarantor. Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to such terms in the
Purchase Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantor agrees
as follows:
ARTICLE I
GUARANTEED OBLIGATIONS
Section 1.1 Obligations Guaranteed. The Guarantor hereby guarantees to
GMAC- CMS and the Other Beneficiaries (a) the timely purchase or replacement of
any Mortgage Loans which the Seller is obligated to repurchase or replace
pursuant to Section 6 of the Purchase Agreement and fails to do so in
accordance therewith, (b) the due and punctual payment, observance and
performance of any and all of the obligations of the Seller, pursuant to
Section 9 of the Purchase Agreement, if the Seller fails to pay or perform as
required thereunder, and (c) the timely payment of costs, expenses (including,
without limitation, expenses of enforcement pursuant to Section 6(d) of the
Purchase Agreement), if the Seller fails to pay as required under the Purchase
Agreement (the "Obligations"), each Obligation as subject to any extensions or
waivers agreed to in writing by GMAC-CMS or, to the extent appropriate, any of
the Other Beneficiaries; provided that, notwithstanding anything herein to the
contrary, in no event shall the Guarantor guaranty or otherwise be responsible
for any Obligation to the extent (but only to the extent) that it has been
amended, rescinded, waived, modified or in any way altered, unless and until
such amendment, rescission, waiver or alteration has been consented to in
writing by the Guarantor after notice to the Guarantor by the Seller. It is
herein acknowledged that no Obligation under the Purchase Agreement may be
amended, rescinded, waived, modified or in any way altered except by writing
signed by GMAC-CMS and the Seller.
<PAGE>
3
Section 1.2 Nature of the Guaranteed Obligations. (a) The Guarantor
further agrees that this Agreement constitutes an absolute, unconditional,
irrevocable, present and continuing guaranty of performance and payment and not
of collection. The Guarantor's obligations hereunder (the "Guaranty
Obligations") are primary, direct, unconditional and completely independent of
the obligations of any other person or entity, and are primary direct
obligations of the Guarantor to GMAC-CMS and the Other Beneficiaries.
(b) If any payment by the Seller to GMAC-CMS or any Other Beneficiary
with respect to any Obligation is rescinded or must be returned by GMAC-CMS or
such Other Beneficiary for any reason (including, without limitation, the entry
of any order under any present or future federal or state bankruptcy,
insolvency or similar laws) the obligations of the Guarantor hereunder shall be
reinstated with respect to such payment, subject to the proviso to Section 1.3.
(c) Neither GMAC-CMS nor the Other Beneficiaries shall have a duty to
advise the Guarantor of information known to it regarding any such conditions
or circumstances described in Section 1.2(b).
Section 1.3 Obligations of Guarantor Unconditional. The Guaranty
Obligations shall remain in full force and effect until both (a) satisfaction
or performance thereof in full, and (b) the obligations of the Seller under the
Purchase Agreement are paid, observed, performed and satisfied in full. The
Guarantor guarantees and agrees that the Obligations will be satisfied in
accordance with the terms thereof. The liability of the Guarantor under this
Agreement shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the Purchase
Agreement;
(b) the failure of GMAC-CMS or any Other Beneficiary (i) to assert any
claim or demand not expressly required under the terms of the Purchase
Agreement or to enforce any right or remedy against the Seller under the
Purchase Agreement, or (ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any of the Obligations;
(c) subject to the proviso to Section 1.1, any reduction, limitation,
impairment or termination of any of the obligations of the Seller under the
Purchase Agreement for any reason, including any claim of waiver, release,
surrender, alteration or compromise by reason of the invalidity,
illegality, non-genuineness, irregularity, compromise or unenforceability
of, or any other event or occurrence affecting, such obligations, except as
expressly set forth in the Purchase Agreement;
(d) subject to the proviso to Section 1.1, any amendment to,
rescission, waiver, or other modification of, or any consent to or
departure from, any of the terms of the Purchase Agreement; and
<PAGE>
4
(e) any other circumstance which might otherwise constitute a defense
to or a discharge of the Seller of its obligations under the Purchase
Agreement based upon the bankruptcy or insolvency of the Seller;
provided that, notwithstanding anything to the contrary contained herein, the
Guarantor shall not be required to make a payment hereunder pursuant to the
Guaranty Obligations to the extent that there exists a valid defense, set-off,
discharge, right of release or equitable right of limitation on liability under
the Purchase Agreement to which the Seller is rightfully entitled and that does
not arise out of the bankruptcy or insolvency of the Seller.
Section 1.4 Certain Waivers of the Guarantor. The Guarantor hereby
waives:
(a) promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations and this Agreement, except notices
to the Guarantor specifically provided in this Agreement, and (b) any
requirement that GMAC-CMS or any Other Beneficiary secure, perfect or
insure any security interest or exhaust any right or take any action
against the Guarantor, the Seller or any other person or entity (including,
without limitation, any other obligor or guarantor) or any collateral
securing the Obligations.
Section 1.5 Remedies and Waivers. No remedy herein conferred upon or
reserved to GMAC-CMS or any Other Beneficiary is intended to be exclusive of
any other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No
waiver of any of the provisions of this Agreement (a) shall be valid unless
evidenced by a writing executed by each party to be bound thereby, (b) shall be
deemed to or shall constitute a waiver of any other provision of this Agreement
or any provisions of the Purchase Agreement (whether or not similar), or (c)
shall constitute a continuing waiver unless otherwise expressly provided. No
delay on the part of GMAC-CMS or any Other Beneficiary in exercising any right
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any power or right preclude other or further exercise
thereof or the exercise of any other right or remedy. No notice to or demand on
the Guarantor in any case shall entitle it to any other or further notice or
demand in the same or similar circumstances except to the extent expressly
required by the Purchase Agreement.
Section 1.6 No Set-off by Guarantor. No set-off, abatement,
recoupment, counterclaim, reduction or diminution of a Guaranty Obligation, or
any defense of any kind or nature which the Guarantor has or may have with
respect to a Guaranty Obligation (other than the complete fulfillment,
performance or satisfaction of such Guaranty Obligation) shall be available
hereunder to the Guarantor against GMAC-CMS or any Other Beneficiary; provided,
however, that the Guarantor shall be entitled to, except to the extent it
arises out of the bankruptcy or insolvency of the Seller, any right of set-off,
abatement, recoupment, counterclaim, reduction or diminution of any
<PAGE>
5
Obligation or any equitable defense of any kind or nature which the Seller has
or may have with respect to any Obligation.
Section 1.7 Binding Nature of Certain Adjudications. The Guarantor
shall be conclusively bound by the final non-appealable adjudication in any
action or proceeding, legal or otherwise, involving any controversy arising
under, in connection with, or in any way relating to, any of the Obligations,
and by a final judgment, award or decree entered therein, provided, in any
case, that the Guarantor shall have had the right, or shall have been given the
opportunity, to participate in such action or proceeding and shall have been
given written notice of such action or proceeding in time to exercise such
right or avail itself of such opportunity.
Section 1.8 Costs. The Guarantor agrees to indemnify GMAC-CMS and each
of the Other Beneficiaries for, and shall pay, all costs, expenses and fees,
including all reasonable attorneys' fees and expenses, which may be incurred by
GMAC-CMS and each of the Other Beneficiaries in enforcing or attempting to
enforce a valid claim under this Agreement following any default on the part of
the Guarantor hereunder, whether the same shall be enforced by suit or
otherwise.
Section 1.9 Interest. If the Guarantor shall fail to make any payment
due hereunder when due in immediately available funds, the Guarantor shall pay
interest on the amount of such payment from and including the date due to the
date of payment at an annual rate equal to two percentage points above the
"Federal funds effective rate" as published on Reuters Screen 118, as such
"Federal funds effective rate" may change from time to time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
Section 2.1 Representations and Warranties of the Guarantor. The
Guarantor represents and warrants that:
(a) The Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Guarantor has
the full power and authority, corporate or otherwise, to guaranty the
Obligations and has the power, authority, franchises and licenses (i) to own
its properties and assets and to carry on and conduct its business and (ii) to
execute, enter into and deliver this Agreement and to perform all of its
obligations hereunder. The execution, delivery and performance of this
Agreement by the Guarantor have been duly authorized by all necessary
corporate, shareholder or other action, and this Agreement has been duly and
validly executed and delivered by the Guarantor and is legal, valid and binding
on and enforceable against the Guarantor in accordance with its terms except as
such enforceability may be subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general principles of
equity. Any requisite consents of third parties to the execution and delivery
<PAGE>
6
of this Agreement and the performance of the obligations or transactions
contemplated hereby have been obtained.
(b) Neither the execution or delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor the compliance with
or performance of the terms and conditions of this Agreement by the Guarantor
is prevented by, limited by, conflicts with or will result in a breach or
violation of or a default under the terms, conditions or provisions of (i) its
certificate of incorporation or by-laws, (ii) any material mortgage, security
agreement, indenture, loan agreement or other agreement or instrument to which
the Guarantor is a party or by which it is bound or (iii) any provision of law,
any order of any court or administrative agency or any rule or regulation
applicable to the Guarantor or its business. As of the date hereof, the
Guarantor is not in default under or in violation of any of its material
obligations under any material contract, agreement or undertaking to which it
is a party or by which it is bound.
(c) As of the date hereof, there is no action, proceeding or
investigation pending with regard to which the Guarantor has received service
of process or, to the Guarantor's knowledge, threatened against the Guarantor
before any court or administrative agency that, in the reasonable and good
faith judgment of the Guarantor, may (i) materially and adversely affect the
ability of the Guarantor to perform its obligations under this Agreement, (ii)
result in any material adverse change in the business, properties, assets or
financial condition of the Guarantor, or (iii) adversely affect the
enforceability of this Agreement.
(d) As of the date hereof, the Guarantor is the owner, directly or
indirectly, of 100% of the issued and outstanding membership interests of the
Seller.
ARTICLE III
MISCELLANEOUS
Section 3.1 Obligations Arise on Delivery of the Mortgage Loans. The
Guaranty Obligations hereunder shall arise absolutely and unconditionally
effective as of the Closing Date or, insofar as the Guaranty Obligations relate
to Section 9 of the Purchase Agreement, effective as of the date hereof.
Section 3.2 Survival. All warranties, representations, covenants and
obligations made by the Guarantor herein shall be deemed to have been relied
upon by GMAC-CMS and shall survive the delivery to GMAC-CMS of this Agreement
regardless of any investigation made by or on behalf of GMAC-CMS or any of the
Other Beneficiaries, until such time as the Obligations shall have been
discharged pursuant to the Purchase Agreement and the Guaranty Obligations
shall have been discharged pursuant to this Agreement.
Section 3.3 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Guarantor, GMAC-CMS and the Other
Beneficiaries and upon the respective
<PAGE>
7
successors, assigns, estates, heirs, executors and administrators of the
Guarantor, GMAC-CMS and the Other Beneficiaries; provided that neither GMAC-CMS
nor any of the Other Beneficiaries may assign its rights hereunder except to an
affiliate of the assignor or as contemplated by the following sentence; and
provided, further, that the Guarantor may not assign or delegate any of its
obligations hereunder without the prior written consent of GMACCMS and the
Other Beneficiaries, or their respective successors and assigns, which consent
shall not be unreasonably withheld. If GMAC- CMS assigns any of its rights
under the Purchase Agreement in respect of the Obligations in accordance with
the Purchase Agreement, then GMAC-CMS may also assign to the same party its
rights hereunder in respect of the corresponding Guaranty Obligations. In
addition, any entity into which the Guarantor, GMAC-CMS or any Other
Beneficiary may be merged or consolidated, or any entity resulting from any
merger, conversion or consolidation to which the Guarantor, GMAC-CMS or any
Other Beneficiary is a party, or any person succeeding to all or substantially
all of the business of the Guarantor, GMAC-CMS or any Other Beneficiary, shall
be the successor hereunder to the Guarantor, GMAC-CMS or such Other
Beneficiary, as the case may be, hereunder.
Section 3.4 Notices. All notices, certificates, demands or other
communications hereunder shall be sufficiently given and shall be deemed given
when mailed by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows: (a) if to the Guarantor, addressed to
ContiFinancial Corporation at 277 Park Avenue, New York, New York 10172,
Attention: Chief Counsel, (b) if to GMAC-CMS, addressed to GMAC Commercial
Mortgage Securities, Inc. at 650 Dresher Road, P.O. Box 1015, Horsham,
Pennsylvania 190448015, Attention: Ms. Elisa George, (with a copy to the
General Counsel at 650 Dresher Road, P.O. Box 1015, Horsham, Pennsylvania
19044-8015).
The Guarantor and GMAC-CMS may, by notice given hereunder, designate
any further or different addresses to which subsequent notices, certificates,
demands or communications shall be sent.
Section 3.5 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties with respect to the subject matter hereof except as specifically set
forth or incorporated herein.
Section 3.6 Amendments, Changes and Modifications. This Agreement may
not be amended, changed, modified, altered, released or terminated without the
written consent of the Guarantor, GMAC-CMS and the Other Beneficiaries, or
their respective successors and assigns.
Section 3.7 Severability. The invalidity or unenforceability of any
one or more phrases, sentences, paragraphs or Sections in this Agreement shall
not affect the validity or enforceability of the remaining portions of this
Agreement or any part thereof.
<PAGE>
8
Section 3.8 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE GUARANTOR HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 3.9 Counterparts. This Agreement may be executed in several
counterparts, each of which counterparts shall be an original and all of which
together shall constitute but one and the same instrument.
Section 3.10 Headings; Interpretation. Section and paragraph headings
are not to be considered part of this Agreement, are included solely for
convenience and are not intended to be full or accurate descriptions of the
contents thereof. Sections and paragraphs mentioned by number only are the
respective sections and paragraphs of this Agreement. The use of the terms
"herein", "hereunder", "hereof", and like terms shall be deemed to refer to
this entire Agreement and not merely to the particular provision in which the
term is contained, unless the context clearly indicates otherwise.
<PAGE>
S-1
IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be duly
executed and delivered,on the date first above written.
CONTIFINANCIAL CORPORATION
By: /s/ Scott M. Mannes
--------------------------------
Name: Scott M. Mannes
------------------------------
Title: Authorized Signatory
-----------------------------
By: /s/ Susan C. Valenti
--------------------------------
Name: /s/ Susan C. Valenti
------------------------------
Title: Authorized Signatory
-----------------------------
